concurring in part, concurring specially, and dissenting in part,
in which HUNTLEY, Justice, concurs as to Part III.I.
With this case coming close on the heels of State v. Windsor, 110 Idaho 410, 716 P.2d 1182 (1985), where the Court for the first time vacated a death sentence on grounds that it was excessive or unconstitutionally imposed by a sentencer other than a jury, it is not difficult for me to accordingly concur in the judgment of the Court in that respect. It is required of me, however, that in cases of this awesome magnitude certain observations should be made as to proportionality concerns where the Court has previously upheld the death sentence imposed on Scroggins’ co-defendant Beam. State v. Beam, 109 Idaho 616, 710 P.2d 526 (1985).
II.
The state’s case against Scroggins involved an earlier considerable expenditure of time and effort in order that I could comprehend what transpired in Beam. There I wrote that simultaneous trials in one courtroom before one trial judge presiding over two separate juries, one for each defendant, was a noble experiment which failed. As my separate opinion took extreme pains to point out, appellate review of Beam’s trial was impossible without going outside of the Beam record and into the Scroggins record in order to hopefully piece the puzzle together. In fact, the main portion of my Beam opinion was *391concluded while laboring under the impression that Beam, after testifying as a state’s witness against both himself and Scroggins in both trials, was not cross-examined by counsel for Scroggins. From Beam:
MR. BISHOP: Your Honor, prior to cross-examination by Mr. White, I would ask that Jury A be removed. I feel this would be proper in light of the two-jury system.
MR. JONES: May we approach the bench on that, Your Honor?
COURT: Approach the bench. (Whereupon, an off-the-record bench discussion was had between Court and Counsel.)
COURT: I am going to ask that Panel A step down. (Whereupon, the Bailiff escorted Jury A out of open court and certain proceedings were had in the absence of Jury A. The noon recess was taken from 11:45 a.m. to 1:30 p.m. Reconvened. Counsel for respective parties, together with the Defendants, present. The following proceedings were had in the absence of both Jury A and Jury B.) [Beam,] Tr., Vol. 4, pp. 838-62.
It will be forever unknown, at least by resort to the records on both appeals, what was agreed to by the court and defense counsel at the bench conference. All that we do know — from the record — is that counsel for the state, in the presence of both juries, requested and obtained an “off-the-record” bench discussion just prior to cross-examination of Beam by Mr. White, counsel for Scroggins. And we do know that the “off-the-record” discussion took place, and there was not any cross-examination of Beam by counsel for Scroggins. We do not know what was said in that important bench discussion — the result of which was no cross-examination.
What we also do know is that appellate review of an incomplete record is virtually impossible. As Justice Bakes wrote in his dissent to State v. Wright, 97 Idaho 229, 235, 542 P.2d 63, 69 (1975):
When this Court is unable to review the proceedings of the lower court because, in violation of the statutes of this state, the record of those proceedings was not properly taken and preserved, and due to the record’s deficiencies we are unable to determine whether a defendant’s judgment of conviction has been obtained in a proceeding tainted with fundamental error, then we must apply the rule of Ebersole v. State, 91 Idaho 630, 428 P.2d 947 (1967), where we stated:
“Appellant’s dilemma was not of his own making. The statutory provisions requiring the recording of oral proceedings by the court reporter ... are fairly designed ... to protect a defendant from the very situation now before this Court.
“When there is such a breakdown in the application of established procedures, as is reflected by this record, which necessitated resort to the parol evidence of court officials and of the appellant himself to establish what took place in a court of record, there is such a lack of fundamental fairness and deviation from established rules of procedure as to necessitate the conclusion that appellant has not been afforded the protection of the due process clauses of the Constitutions of the United States and this State.” 91 Idaho at 636, 428 P.2d at 953.
Continuing to believe from a record which did not disclose what transpired at the bench conference — a secret affair in a capital case — that Beam had not been cross-examined in Scroggins’ trial, I wrote:
Here, however, Beam testified. And he was accordingly subject to cross-examination by his co-defendant’s counsel. In that way, and only in that way, “the search for truth” would have been promoted. The trial court, apparently seeing no difference between Beam’s live testimony and the hearsay use of his oral *392confession to the police officers, applied the Bruton rule to both. [“Both” meaning Beam’s live testimony and Beam’s confession.] Beam, supra, 109 Idaho at 633, 710 P.2d at 543.
And much further along, commented again:
But the larger problem is the trial court’s administering of the Bruton rule, as it was here administered for the first time in Idaho; in a jointly-charged, jointly-tried, capital case with two juries— COMPOUNDED by the fact that both of the co-defendants testified and the very reason for the Bruton rule was non-existent. Beam, supra, 109 Idaho at 643, 710 P.2d at 553.
And, keeping well in mind that I was still laboring under a mistaken impression which would only be later corrected on going afield into the Scroggins record, also this:
What also comes across to me from reading the testimony of both defendants, and examining their statements given to the police detectives, is that Beam is as much the mentally slow person as was Bainbridge as compared Sivak. I would challenge anyone to read the testimony and statements and argue to the contrary. Yet, Bainbridge was not given the death sentence, but Sivak was, and Beam and Scroggins both were.
My purpose is not to say that the trial court erred in sentencing both to death. But I do suggest that one jury, hearing each testify on direct and then on two cross-examinations, might have well decided the issue differently than did two juries. Beam, supra, 109 Idaho at 644, 710 P.2d at 554 (reference to Sivak and Bainbridge—State v. Sivak, 105 Idaho 900, 674 P.2d 396 (1983) cert. denied — U.S. -, 104 S.Ct. 3591, 82 L.Ed.2d 887; State v. Bainbridge, 108 Idaho 273, 698 P.2d 335 (1985)).
Two pages later an Addendum pointed to the fact that the Beam reporter’s transcript inaccurately failed to show that Beam had been subjected to cross-examination by Scroggins’ counsel — a complete fulfillment of the otherwise problem of non-confrontation which produced the Bruton rule in the first place. What a comedy! It was the Bruton circumstance which the prosecutor, of all people, had utilized to obtain this peculiar hybrid severance.
What came out of it all was Beam testifying against Scroggins, who was indeed awarded the right of confrontation which was exercised by cross-examination (you cannot cross-examine a confession), and Scroggins thereafter testifying against Beam who was not accorded confrontation by cross-examination. Nevertheless by direct order of the court, Beam’s trial being over, Beam and his attorney were confined to the courtroom while Scroggins took the stand and laid on Beam all the blame for the killing.
I mentioned early in the Beam opinion, first at p. 36 and again at p. 57, it was the prosecutor’s worry that if Beam and counsel were not required to be present as the Scroggins trial continued on that “with lay members sitting on a very new law process, that an improper conclusion could be drawn from the absence of Mr. Beam at this critical point. ”
Having first ruled that Beam and his attorney need not be present, the trial judge succumbed to the prosecutor’s unexplained gut feeling of improper jury conclusions, and reversed his ruling. In the Addendum I pointed out exactly how this would appear to the jury:
When Scroggins testified, it was only because the trial court reversed its ruling that Beam and his attorney were even in the court room, ... but under the court’s previously declared absolute control over the proceedings, ... sat there like dummies with Beam’s attorney having no opportunity to cross-examine.
Just as the prosecutor had worried, the lay jurors did jump to a conclusion, and there is only one reasonable conclusion that the jurors could come to. Where those jurors had previously seen Mr. White, Scroggins’ attorney, thoroughly cross-examine Beam, obviously those jurors would believe that Beam’s attorney did not believe that he *393could make any inroads whatever against Scroggins’ direct testimony. In other words, the jury saw Beam and his attorney offer not the slightest effort at challenging the testimony just given by Scrog-gins! Otherwise put, Beam and his attorney were seen as conceding the validity of that testimony. This accounts for a jury verdict in Scroggins’ trial which exonerated him from the actual killing and from the rape. It is as wrong as anything which I have witnessed in a criminal prosecution. Scroggins was clearly the beneficiary of the court’s erroneous ruling, and it was the prosecutor who led the court into such grievous error. And in the first place it was the prosecutor who led the court into the error of attempting to conduct two “almost” separate trials in one courtroom with two juries.
There is little doubt in my mind, almost none in fact, that the prosecutor’s cross-examination of Scroggins established him for the liar he was in first giving false statements to the police officers. But, with Beam and counsel apparently seeing no reason to cross-examine Scroggins, the jury, if so inclined where Scroggins was by them convicted of felony murder, could readily let itself entertain a reasonable doubt that Scroggins was not guilty of rape, and not guilty of actually killing or participating in the actual killing.
The jury has so ruled, and no matter how it was deceived and misled by appearances — i.e., drew improper conclusions, as the prosecutor worried — nothing can be done in that regard. That verdict is final. The state has not challenged it, and no one else has standing to challenge it.
If there is to be any proportionality in death penalty sentencing, however, it is only just that the Court now pause to reconsider Beam’s death sentence. And it can do so. In State v. Ramirez, 34 Idaho 623, 203 P. 279 (1921), the Court recalled its remittitur to further consider its earlier judgment which had affirmed a conviction of first degree murder and punishment fixed by the jury at death. State v. Ramirez, 33 Idaho 803, 19 P. 376 (1921). Having recalled the remittitur, and upon further consideration, the Court stated:
The questions involved here are of the utmost importance to appellant, and every consideration of justice demands that this court determine its power both to recall the remittitur and to reduce the punishment in this case, and that the punishment be reduced if the facts do not warrant the imposition of the death penalty. Ramirez, supra, 34 Idaho at 631, 203 P. at 281-82.
and declared its inherent power to do so, id., at 631 203 P. 279. (It has done so in subsequent cases.) The Court was short and to the point:
Without reciting in detail all of the facts and circumstances involved in the trial of this cause, and specifically pointing out errors which were not reversible, but which may have influenced the jury in assessing the extreme penalty, it is clear to our minds that the jury abused its discretion in so doing.
We have, therefore, after very careful consideration, reached the conclusion that it is our duty to recall the remit-titur, and to modify the judgment to the extent that the sentence to be inflicted be that of life imprisonment at hard labor in lieu of inflicting the death penalty, and the judgment is so modified.
Id. at 637-38, 203 P. at 284.
If this Court today is to display the quality of justice it showed in Windsor, and now in Scroggins’ case, it will at least recall the remittitur in Beam’s case so that it will afford itself the opportunity of considering the injustice which is being done by letting Beam be sent off to his death — while at the same time waving boldly the banner of proportionality while sending Scroggins off to a sentence less severe. If it does recall the remittitur, it will at the least establish to a somewhat doubtful bar that the other members sometimes read what my research reveals in these important cases of most grave consequence. As I intimated over three months ago in Beam, then not knowing how the Court would pass upon Scroggins’ appeal:
*394What also comes across to me from reading the testimony of both defendants, and examining their statements given to the police detectives, is that Beam is as much the mentally slow person as was Bainbridge as compared to Sivak. Beam, 109 Idaho at 644, 710 P.2d at 554.
As above observed, I mentioned the statements given to the police detectives by Beam. This was prior to his having any advice from an attorney, or from anyone. Freely admitting his complicity, as did Scroggins (who was the first one to go to the police and point the finger of guilt at Beam), Beam’s mentality was such that not at all displaying any regard for his life which was then at stake, his prime concern was whether he would get back the cherished pair of handcuffs which he said his friend Shawn Scroggins had given to him. Observe the following excerpt from Beam’s first statement to the police detectives made in Nevada after his apprehension— with a short lead-in to the handcuff affair:
BRISBIN: Do you feel mentally alert and normal and everything like that, normal?
BEAM: Yeah.
TWEDT: You know what you’re doin’, dontcha?
BEAM: Yes, I do.
TWEDT: Okay. Sh. .or Ray, I’m sorry. We need samples of your pubic hair and head hair. Now, you don’t have to give us it if you don’t want to but I can guarantee ya when we get back to Idaho I’ll get a court order and I’ll pull it myself, so ...
BRISBIN: So step over ...
TWEDT: ____needs to be pulled by the follicle. The follicle needs to be with it. Your head hair though, Ray, we need that taken from several areas of your head. That piece there is from the right side toward the back. These can be in the same envelope. For the purpose of the tape, are you giving us these hairs voluntarily?
BEAM: Yes, I am.
TWEDT: Okay. Got some there, okay, now we ... maybe just a little out of the front here, alright. The time is 2310 hours. Ray, if you’ll initial the bottom here that that is your head hair that I enclosed in that envelope. Just a few minutes here and I’ll set up another pharmicist fold. Now, get some pubic hair. A little more than that, if you will. That should be sufficient. The pubic hair is also given voluntarily?
BEAM: Yes, sir.
TWEDT: The time is also 2310, 2312 hours now. And again, on this line here, Ray. Marshall, I forgot to sign that last envelope there. To these envelopes I am affixing the area form which the hair was pulled, the name of Albert Ray Beam, the date 7/9/83, the time that Mr. Beam has signed each package. Mr. Beam, you had certain property with you when you were arrested here in Lovel-ock.
BEAM: Yes.
TWEDT: Your clothes and any ... is that a gym bag?
BEAM: Yes, it is.
TWEDT: Okay, like a cotton gym bag.
BEAM: Yes.
TWEDT: Okay, certain pieces of that will probably have to be seized as evidence. I’d like to have your permission to seize those things. .Again, I admonish you that you don’t have to consent, I’ll have to get search warrant to go into the bag if I have to. But if that’s necessary, I guarantee ya I will do that too. You understand that?
BEAM: Yes, I do.
TWEDT: Okay. Would you voluntarily give me permission to seize articles of clothing or whatever I feel is necessary from that bag?
BEAM: Yes.
TWEDT: Okay. I’m gonna fill out a permission to search form and I’ll have you execute that. Okay. The back side’s in Spanish so it doesn’t apply. Okay. I’m gonna read this to you, Ray. Permission to Search. The undersigned, residing at the Lovelock, Nevada Law Enforcement Building, that’s your address right now. Anyway, has hereby *395authorized Detective Gary Twedt, and other officers as he designates to assist him, to search my residence or other real property located at the property lockers, Lovelock Law Enforcement Building, and I further authorize said officers to remove from my residence, real estate and/or motor vehicle whatever documents or items of property whatsoever that shall be deemed pertinent to the investigation with the understanding that said officers will give me a receipt for whatever they remove. I am giving this written permission to these officers freely and voluntarily, without any threats or promises having been made and after having been informed by said officer that I have a right to refuse a search and/or seizure. I’ve crossed out the.. the lines applying to motor vehicles and that sort of thing here. They don’t apply. All I’m interested in is the property that the law enforcement officers here seized from you. Okay? You understand everything?
BEAM: Yes, I do, sir?
TWEDT: Okay.
BRISBIN: Could we also, Ray, have permission to obtain your handcuffs?
BEAM: Yes.
BRISBIN: You indicated yes, right?
BEAM: Yes. Will I ever get ’em back?
TWEDT: That’ll be up to the court, okay?
Because it has now become absolutely essential that Beam’s sentence be reconsidered, I have revisited the majority opinion in Beam. My effort is to further consider Beam’s intellect and his background, both independently and with an eye on that of Scroggins. The consideration given by the majority opinion is very limited. First, however, it has to be noted that the majority opinion, after reciting the facts of the murder, also crossed over to the Scroggins file in order to observe that: “the Scrog-gins jury found Scroggins guilty of first degree murder, finding that he did not commit the crime directly, but rather aided and abetted and/or encouraged and advised its commission, and found Scroggins guilty of attempted rape.” 109 Idaho at 619, 710 P.2d at 529. It was against that backdrop that the issues in Beam’s appeal were considered, but I think not very much so. The opinion noted only that:
At Beam’s sentencing hearing, testimony was offered by the State and the defense, the State calling three witnesses, the director of the Canyon County Detention Center (where Beam was incarcerated), a detention center sergeant, and one of Beam’s prior cellmates. The defense called Beam. The trial court also had before it the presentence investigation and psychological evaluation reports. That testimony indicated that Beam abused drugs, was on parole for burglary when the murder was committed, had been exposed to and participated in much sexually deviant behavior, had tortured animals, was impulsive, and lacked any adequate conscience.
Following Beam’s sentencing hearing, the trial court, pursuant to I.C. § 19-2515, found the existence of three statutory aggravating circumstances: (1) that the murder was especially heinous, atrocious and cruel and it manifested exceptional depravity; (2) that Beam had exhibited utter disregard for human life; and (3) that Beam, by prior conduct or conduct in the commission of the murder, had exhibited a propensity to commit murder which would probably constitute a continuing threat to society. The trial court considered six possible mitigating factors: That Beam was 21 years old; that he had been mentally and emotionally deprived; that he had been cooperative with police and had admitted involvement in the crime; that he had limited employment skills as a cook and a mechanic; that he suffered from substance dependency; and that he was raised in a turbulent family setting. Beam, supra, 109 Idaho at 619, 710 P.2d at 529.
Having now conducted my own review, I find that important items of information the district judge relied upon in sentencing *396Beam included the following excerpts from the report of the presentence investigator:
Nampa Police Department detectives interviewed Beam at Lovelock, Nevada and Beam told the story that after he and Scroggins had arrived at the spot behind Safeways, Scroggins handcuffed Lenten, cut her panties off with a knife, and raped her. Beam said he then had sexual intercourse with the victim. When he was finished, Scroggins had the victim perform fellatio on him. Beam continued that Scroggins had the victim pull her pants up before handcuffing her hands behind her back and walking her to the canal. According to Beam, Scroggins held her head under water for a period of time and then asked Beam to hold her head for awhile. Beam said he pulled the victim up and resuscitated her before Scroggins pulled the victim back to the canal and slit her throat. Beam said that because he could not stand the sight of blood he held the victim under the water until she quit moving.
In comment to this investigator, Lieutenant Riley Newton, the Chief Investigator for the Nampa Police Department, states that he was impressed with the fact that Beam’s version of the crime matched so close to the physical evidence. On the other hand, Newton feels that Scroggins’ story kept shifting and never closely matched the physical evidence. Newton’s investigation revealed collateral information that Scroggins was known as a “knife nut” while Beam was not known for violence or handling knives. He feels that Scroggins was the instigator of the murder while Beam was the follower. Newton believes everything about Beam’s version except for the part where Beam maintains he tried to resuscitate the victim with CPR. Newton feels the entire act was not premeditated but happened moment by moment on impulse.
Detective Creech of the Nampa Police Department, also feels that the defendant has been truthful regarding his version of the offense. It has been Detective Creech’s experience that the defendant is only untruthful when he is certain that he can “get away with it”.
Because Beam’s version fit extremely close to the physical evidence and Scrog-gin’s version was filled with large discrepancies, (for information on said discrepancies please refer to the transcripts of police interviews with Scroggins) Scroggins was arrested for First Degree Murder.
SIGNIFICANT FAMILY INFORMATION: The defendant was born in 1962, the third child of four children conceived by Harvey and Louella Beam. Beam relates that the first ten years of his life were stable and “normal.” During that period of time, the family lived on a ranch in the Sunny Slope area and Beam’s father worked on that ranch. Beam’s father then injured his back and was terminated for no longer being able to handle the ranch work. Beam states that his family's life-style radically changed from that point on. Beam, however, does relate one aspect of his life, at the age of nine, which would indicate a potential for violence. According to Beam, there were “thousands of cats” on the ranch. Beam hated those cats because “they’d growl or scratch you.” Because of his hatred for cats, Beam would spend a lot of time planning how to kill them. Oftentimes, Beam would pour gas on them and then light them on fire. He would also tie their tails together, hang them over a clothesline, and let them fight until one or both of them were dead. He was also fond of hanging them by the neck or exploding firecrackers in their anal cavities. For the next few years Beam’s father worked as an automobile mechanic at various jobs but was unable to be successful at any job due to his back problem. He was finally labeled terminally disabled and during this time he developed a severe alcohol problem. Also during this period of time, the defendant’s older brother,........., got married and moved to Caldwell. Beam reports that he never had too much contact with his older brother because he kept to himself and did not relate with the family on a regular basis. At the age of 11, Beam had *397his first sexual encounter when he and a female cousin watched his older brother engage in sex with his wife. At that time, he and his cousin had sexual intercourse. He relates that they had sexual intercourse four to five times over the next two years. By the time Beam was 14 years of age his father was drinking from the time he got up in the morning to the time he went to bed. Beam’s father was also having sexual intercourse with Beam’s sister. Mr. Beam would sell [the daughter’s] sexual favors to various males in return for money, car parts, or alcohol. Beam’s father also forced Beam and his severely retarded brother,________(two years older than Ray), to have sex with their mother while he watched. (This statement is uncorroborated except that collaterals suspect that sexual swapping of family members took place.) Beam maintains that his mother was not in favor of this but if anyone refused, Harvey Beam would beat them. Beam states that his father did not attempt to have sex with him or his brother. Furthermore, at the age of 14, Beam impregnated a girl and conceived a boy whom he has never seen. That year Beam began experimenting with various types of drugs and began drinking. (For more specific information, refer to the substance abuse section of this report.) At age 15, Beam’s behavior became even more bizarre. Once, on a dare from his sister, he took all of his clothes off and walked down the street in the daylight hours and he started going to parties where he would do stripteases. He would also engage in giving dogs and cats alcohol until they were intoxicated. He further related that he considered having sex with one of his father’s dogs but when he went to grab her to take her into the bedroom she started growling so he gave up on the idea. He says he never again considered having sex with an animal. As Beam’s drug use became heavier, he found that in order to buy the drugs he wanted, he needed but to wait until his father passed out from alcohol consumption to steal money from him. Discipline at this time became severe and Beam says on three or four occasions per week, his father would beat him with a rubber hose or a razor strap. At age 15 Beam’s father knocked him down a flight of stairs and he ran away from home. Beam says that he then went to a foster home for six months before asking to go back home. (Child protection workers claim this time with the foster family was only two months and had no impact on Beam.) Upon returning home, Beam found himself following his father’s alcoholic pattern. Beam claims that the major source of contention with his father were the conflicts concerning Beam’s girl friends. Beam states that his father either bribed or intimated his girl friends to have sex with him. During Beam’s 16th year all discipline broke down as Beam told his parents that from then on he would do what he wanted to do. Also during this year [Beam’s sister] went to live at a foster home. At age 17 Beam became engaged to a [X], Ms. [X] had three children and they lived together for seven months before splitting up when she pulled a knife on him and he struck her with his fist. Next, Beam cohabitated at his parents’ house with a [Y]. Ms. [Y] left after three months without giving an explanation to Beam as to why she was leaving him. During this time span, Beam reports that he did some farm work for a [Z]. Beam relates that he and Mr. [Z] developed a homosexual relationship which lasted for about one year before Gonzales moved out of the area. Beam states that he enjoyed this relationship as he was tired of being hurt by women.” Before going to prison at the age of 19, Mr. Beam lived for indeterminate amount of time with a woman known as Freedom. (Refer to the marital section of this report.) Beam thinks of his childhood as having been completely miserable and he feels that his father deliberately set out to destroy his happiness. When asked about any happy family occasions, Beam reported that on three to four occasions per year the family would have a nice time when they went camping and fishing. Beam is also appreciative of his father for teaching him automobile mechanics.
*398Concerning his siblings, Beam reports that he has always been exceptionally close to his sister. He related that while she wanted to engage in sexual intercourse with him, he would not allow any sexual contact between them. Beam state that he and [his sister] confided and counseled each other and if they had not been siblings, they would be married. Beam never had to much contact with [his older brother] as [he] moved away when Ray was very young. Beam is aware that [his older brother] would occasionally have sexual intercourse with [his sister].......... is severely retarded and Beam does not relate a close relationship with him. At the urging of [Z], however, Beam did have one homosexual encounter with his brother. Beam was not satisfied with the sexual encounter and he would not allow other sexual encounters with his brother. Beam states that [this brother] prefers homosexual encounters to heterosexual encounters.
EDUCATION: The defendant’s school file was obtained through the Nampa School District. It was found that the defendant had to repeat the first grade. In the fourth grade, his teacher referred him to the school psychologist because he was engaged in fighting with peers, had difficulty doing school assignments and exhibited slow speech. Beam was seeing a speech therapist but the therapist discontinued her work with Beam because she claimed Beam “belligerently refused to cooperate in therapy and would not practice at home.” Beam’s' IQ score on February 6, 1973 was 87____ [T]he grade level of 2.5 while he read at the grade level of 1.9. She classified him “dull-normal” But did not feel he was severe enough to enter special education. Emotional indicators suggested that Beam had tendancies to be “impulsive, aggressive and to act out.” (Please refer to a copy of this report attached to the presentence.) In the seventh grade Beam was again referred to ... the school psychologist, because of further difficulties in school. On 9-23-75, Beam’s IQ measured 77. His reading level was grade 2.4, his spelling level was grade 2.9, and his arithmetic level was grade 2.9. His performance on the Bender-Gestalt test was typical of a six and a half year old child. Beam was then placed in special education. (Refer to the report attached to his presen-tence.) Beam continued in special education at West Junior High School until 9-5-78 when he dropped out. He went back to school on 9-2-80 when it was decided to move him to the special education department at Nampa High School. On 9-18-80, he dropped out of school for good____ [T]he Special Education Administrator for the Nampa School District states that she worked very closely with Beam and was in his home on many occasions. [She] states that the Beam home was the dirtiest home she had ever been in. She reports that the defendant was so dirty and smelled so bad that his peers “tormented him.” She relates that Beam was involved in a fight nearly every day. The only thing that stopped this daily routine of a fight was if Beam happened to be able to wear a clean shirt. When [she] was at the Beam residence, she noticed that the family members wore almost no clothes. On one occasion, [she] approached the door and noticed that the defendant was involved in sexual intercourse with an unknown female on the front porch. When Beam noticed her, hp waved her through and said nonchalantly that he would be with her in a minute. [She] reports that she knew Mr. Beam was raping [the daughter] but she also suspected a lot of other “sexual swapping” among the family members. [The Administrator] also suspected that outside of the home Beam was engaged in various homosexual relationships. [She] reports that Beam was not retarded but was slow due to his poor home environment. [She] remembers Beam as a “good-natured person who was easily frustrated when picked on by other boys.”
(c) ABUSES (ALCOHOL AND/OR DRUGS): The defendant states that when he was 14 years of age he started using marijuana and amphetamines on a regular basis. By the time he was 16 years of age, *399he was drinking heavily on almost a daily basis. Also that year, he began selling marijuana, amphetamines, and barbituates. He states that he usually earned about $300.00 per month selling drugs but gave it up because he felt the Nampa Police Department was investigating him. The year before he went to prison, he was ingesting LSD on an every other day basis. That year he experimented with LSD for three months. He also began ingesting PCP once a month, smoked marijuana about every day, and experimented with cocaine and various amphetamines. Furthermore, the defendant relates that he would drink a fifth of McCarty whiskey every day. In prison, the defendant attended Alcoholics Ananymous and Narcotics Anonymous on a regular basis. He reports that upon his release from prison he wanted to quit using drugs and alcohol but could not do this due to pressure from his father and various friends. He states that following his prison release he drank a half a case of beer and smoked marijuana on a daily basis. He reports to me that he smoked marijuana laced with PCP just prior to the commission of this murder. Prior to our interview, however, he continually reported that he was only slightly intoxicated from the use of marijuana.
The defendant apparently had little or no model concerning the value of personal ownership. It appears that personal possessions must have been obtained and held through the idea of “survival of the fittest.” Beam reports that he had the feeling that his father wanted whatever he had. When the defendant was quite young, he set a pattern for himself by stealing from his father after his father had passed out from alcohol consumption.
Apparently the defendant also did not have a significant role model regarding the work ethic or the value of self-sufficiency and financial responsibility. When the defendant was ten to 11 years of age his father became disabled and instead of learning a new trade he became content to collect a disability check and other forms of welfare. Furthermore, Mr. Beam spent most of his welfare money on a $50.00 a day alcohol habit. Because of this, Health and Welfare child protection workers had reports that the Beam family subsisted on food collected from garbage cans.
Beam’s father further presented to the defendant the norm of life lived in an intoxicated state. Beam reports that for eight to ten years his father was intoxicated nearly every waking moment. Beam felt that the only way he could coexist peacefully with his father was to get drunk with him. From this, Beam developed a severe drug/alcohol dependency and he supported this dependency largely by stealing from citizens of Canyon County.
Finally, Beam’s parents exhibited the complete lack of care concerning their physical environment. The family’s residence were filthy beyond belief and there was little or no instruction concerning personal hygiene. The children were allowed to go to school with dirty clothes and a severe body odor which offended their peers. Also, the lack of a proper diet must have had some bearing on the defendant’s downward spiralling IQ.
All the above-mentioned environmental factors first caused the defendant to be soundly rejected by his peers. One collateral used the word “tormented” when she described how Beam’s peers treated him. The defendant was then, of course, forced to band together with other outcasts, many of whom were engaged in crime.
The second affect of the defendant’s environment must have been an imprinting on him of the norm of immediate self-gratification. The defendant had little or nothing in his experience to teach him about caring for other people. Because of this, we see the defendant has engaged in a life of using people to meet his needs.
The biggest problem with the why’s of this ease lies with the defendant himself. Most collaterals understand that the defendant is a social outcast, a substance abuser, and a thief. All collateral contacts are extremely surprised as to his involvement in a violent crime. He is described as *400a clownish, good-natured, nonaggressive person. Why this supposed new twist to his character? Despite reports from collat-erals we can, however, see flashes in the defendant’s life which would indicate a possibility of violence. He tortured cats, he fought nearly every day at school, he physically fought with girl friends, he reported that people were trying to kill him, he engaged in fighting the person he perceived as being a romantic rival, he was noted to have an aggressive nature by a school psychologist, and he talked of killing people he was angry with. Shortly after the arrest of the defendant, [a] minor child called the police and stated that on the afternoon preceding the crime Beam and Scroggins arrived at her home and stated they were going to kill someone. Beam stated that he was angry and wanted to kill someone with a baseball bat.... Much of the above noted violence was not instigated by the defendant, but nevertheless, he was still involved with more violence than most of us have to live with. It appears that the defendant lived with a great deal of pent-up anger. To get a clearer picture of the defendant, we can apply the above-mentioned experiences to Dr. Webb’s psychological report. The report indicates the defendant has the inability to feel with others, the inability to experience normal guilt, an impulsive nature, and feelings of hostility. The facts of this presentence seem to support Detective Newton’s theory that the defendant went along with what was happening, was unable to feel for the victim, and finished the job of murdering her.
The defendant’s social pathology would seem to be extremely deep-rooted. The fact that he is passive, aggressive, nonem-pathetic, impulsive, and relatively guilt free would seem to leave the door open to about any type of behavior. No person predicted that the defendant would be involved with this type of crime but it appears to this writer that the probability always existed. It is also my opinion that the defendant’s personality and life-style would make it possible for him to commit similar crimes in the future.
In concluding Part II, I return to my Beam opinion, where, long before we took up Scroggins’ appeal, I observed “that one jury, hearing each testify on direct and then in two cross-examinations, might have well decided the issue differently than did two juries.” 109 Idaho at 644, 710 P.2d at 554. To that I now add that the prosecutor in his argument that the death penalty be imposed upon Scroggins recognized that Scroggins had connived for Beam’s fleeing from Idaho, whereafter Scroggins would go to the police and inform them of the murder which Beam had perpetrated. The prosecutor, well aware of Scroggins’ lies, some of which he had clearly demonstrated by adept cross-examination, also urged such considerations on the court. Briefly, but highly pertinent, this:
[Tjhere is but one conclusion: that is that he was there, he assisted in that murder right to its very end and then later, upon realizing there were other witnesses, began an elaborate scheme to trap Albert Ray Beam into this crime and free himself.
Time and time again he has lied in this case; lied to protect himself, lied to make himself look good, he has lied to the jury, he has lied to this Court, he has lied to the presentence investigator. The only time he tells the truth is when the truth happens to be of his assistance. Tr., Vol. 6, p. 1419 (emphasis added).
In summing up to the Scroggins jury, the prosecutor earlier contended:
And Mr. Scroggins did go to the police. I’ll talk about why he went to the police. What did he talk about when he went to the police, when he talked about everything that Ray did, Ray did this, Ray did that? He said, “I moved off to a tree and couldn’t look.” He didn’t go for any help. He didn’t attempt to stop this. He said he was too frightened to stop it. He was too frightened to stop Ray, too frightened to run for help.
But he wasn’t too frightened to step in and take his turn. And in his words, “I started to take my turn.” He wasn’t so *401frightened of Ray that he wouldn’t drop his pants down. He said he was too afraid to stop him or run away. I ask you to look at all of the evidence that came out concerning any threats between these two.
I believe that when you do that, you will come up with nothing, because they were friends. They did these things together. They were good enough friends to be out together that night, to be trading property, to be meeting girls and doing whatever else it is they did together.
So he goes in and tells the police he didn’t have anything to do with it. He said Ray handcuffed her behind her back and took her down. Then he said — I belabored this point a little bit because it was important — then he said over and over, “I saw what happened. He drownded her. He put her in the water.”
And they asked him specifically, “Just her head?” And he answered, “No, her whole body.” And they asked him, “Did you actually see this?” And he said, “I saw it.”
“Did you actually see it?” “I saw it,” until finally the police were fed up. They went out there at night, and then they said, “Shawn, you can’t see from there. You can’t see down to there from where you said you were. How do you have such an accurate description that she was held under the water until she drowned? How do you know what happened down there, Shawn, you can’t see from there?”
The Mr. Twedt suggested, “Maybe you saw it in your mind’s eye.” And then, of course, he says, “Yes, in my mind’s eye I saw it. When,” he said, “I heard it, I saw it.” But it was pretty good guess for him to take him right to the body. He couldn’t look down. He knew that the body was there. He’d been there. He’d seen it. He knew where they were going to find it.
He talked about knives with the police officers, but not at first. There was no mention of knives whatsoever at first. This didn’t come out in the first interview, not until they said, “Shawn, we know that the girl’s throat was cut.” Then his memory gets better. “Oh, yes, Ray had the knife. Ray put it to the girl’s throat.” Ray did everything.
If he remember that so well, why didn’t he tell them that at then very first, unless he didn’t want to connect himself with the knife? Even though everyone knew that he owned it, he wanted to make it look like Ray did it all.
What did Short and Lequita McWhirter talk about at that time? They clearly talked about the plan. They had to get Beam out of town. They had to get Scroggins down to the police station to put it all on Beam, to put all the blame on Beam. Why? Because Victor Matthews had seen Scroggins. He had seen him with the knife, with the handcuffs. He couldn’t say he didn’t have anything to do with it. They had seen him.
They had to get Beam out of town. Then they could blame it on him while he was gone. And that was the advice that Wes Short gave. He told Ray, “You’ve got to get out of town. You’ve got to get out of town or commit suicide or turn yourself in.” Who’s going to do that? So he got him out of town. He drove him over there to Caldwell, and Scrog-gins went with them. Then in a two-hour period they showed up at the police department with this story they have. Tr., Vol. 6, pp. 1289-1301.
The Court’s opinion places a considerable reliance on Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1, quoting extensively from it. I do not disagree that this is correctly done. In this area of criminal law the High Court has occupied the field, having in the first place opened the field with its Furman and Woodson opinions. If Scroggins has a valid issue under Eddings, then it is in order that we do not duck it. And we do not. Our opinion notes that Scroggins, with a mental age of 13.8 years, was in his formative years super*402vised by the Department of Health and Welfare because of his unstable, unnur-tured and inadequate upbringing, and that although he had reached the age of 18 years, “We cannot ignore the [Eddings] Court’s admonition that ‘youth is more than a chronological fact.’ ” 110 Idaho at 388, 716 P.2d at 1160. Our opinion notes that “Just as Eddings was not a normal sixteen-year-old, Scroggins was not a normal eighteen-year-old. Like Eddings, Scroggins had been deprived of the ‘care, concern and parental attention that children deserve.’ Also like Eddings, Scrog-gins’ mental and emotional development were at a level well below his chronological age.”
To which I add, everything which has been said about Eddings and Scroggins is applicable to Beam. If anyone has had a more miserable, pitiful, disgusting and deplorable early life than Beam, that person is not Eddings and it is not Scroggins. Beam, as true of Scroggins, simply did not have the mental wherewithal to make the decisions we expect of a normal properly brought-up person. Moreover, there is extremely good reason to believe, as apparently did the prosecutor and the presen-tence investigator, that Scroggins was the liar and the schemer who both murdered or participated in the murder and set Beam up to take the rap.
Notwithstanding that Scroggins failed to pin all the blame on Beam and was himself convicted of felony murder by reason of being accessory thereto, and sentenced to death, it certainly is the law that neither the trial court nor this Court can make findings contrary to the verdicts of the jury, and base a death sentence on such contradictory findings. Nor in this case was it proper for the Court to impose the death sentence upon Scroggins where the sentencing decision was in part based upon the proposition that:
The nature of the crime, your age, your intelligence level being in the dull-normal range, your physical, mental appearance, your ingrained sexual fantasies, your abnormal behavior would assure, in my judgment, your being victimized in the penitentiary by other inmates unless you were kept confined and away from other inmates, in and of itself a source of cruel and unusual punishment because of the constant confinement. 110 Idaho at 389, 716 P.2d at 1161.
As I stated earlier, I am not troubled in joining the Court’s judgment to set aside the death penalty. I am greatly troubled that in Beam’s case the opinion for the Court did not concern itself with the sanie considerations. The goal of proportionality is not advanced by the extreme appellate disparity in the treatment of the two cases.1 The only conclusion now possible is that the convictions in both cases should be reversed, as each of the defendants has requested, and both defendants should stand jointly charged, as they first were and always have been, and should be jointly tried at a trial before one judge and one jury — and thereby let one jury determine which of the two, if either, is less culpable than the other. There is and was no Bru-ton circumstance. And, of course, that one jury properly would hear matters in mitigation and aggravation which would be admissible — which is not presently the way things are being done.
III.
The trial court at the sentencing hearing found that the murder of the thirteen-year-old girl was especially heinous, atrocious and cruel manifesting exceptional depravity. With this finding one would not expect any disagreement. But the court went on to further find that by the murder or circumstances surrounding its commission, the defendant exhibited utter disregard for human life. The defendant referred to, of course, was none other than Shawn Scroggins. The jury had previously returned its verdict finding Scroggins guilty of attempted rape, not guilty of using a *403knife while engaged in criminal activity, and guilty of first degree felony-murder only by reason of having been an accessory-
Toward the close of the sentencing hearing, the prosecutor argued:
Lastly, I would ask the Court considering the aggravated statutory circumstances to consider subsections 5 and 6. The murder was exceptionally heinous, atrocious, cruel, manifested exceptional depravity and exhibited utter disregard for human life. The court has had an opportunity to look at the exhibits in this matter, the ones that show beyond a reasonable doubt the facts supporting this conclusion in subsections 5 and 6 are exhibits 61 through 67, exhibits 43 and 34. The cuffs, the knife, the picture of the bruises and the pictures of the throat slitting....
She [the victim] was taken to that waste canal, a struggle ensued, the knife was present, and her throat was cut four to five times. All this while, the evidence shows that Shawn Scroggins was there. His footprints are there, he described the scene, he could not have known with the exactness he knew the events at that scene if he had not been there. The evidence clearly showed that at that point where he claimed to have stood was substantially outside of the murder scene.
What he did there at the water’s edge was that he assisted in that murder, whether he held Mondi Lenten under water 2, 3 or 4 times, whether he waited for Albert Beam to give the final death blow, whether he gave that knife, whether he encouraged Albert Beam, there is but one conclusion; that is that he was there, he assisted in that murder right to its very end and then later, upon realizing there were other witnesses, began an elaborate scheme to trap Albert Ray Beam into this crime and free himself.
As a preliminary matter, it is clear that in the context of this sentencing of Scrog-gins, the two aggravating circumstances separately described in I.C. § 19-2515(g)(5) and (g)(6), duplicate each other. The prosecutor implicitly recognized this by completely combining the two factors together in his argument. All of the “facts” he relied on to support a finding of one factor, he also relied on to support a finding of the other factor. Where, as here, the very facts which are argued in support of a finding of one factor are identical to the facts urged in support of a finding of the other factor, the two factors overlap and should be considered as only one aggravating circumstance.
More importantly, a careful review of the prosecutor’s arguments and alleged “facts” in support of his urging the Court to find aggravating factors pursuant to (g)(5) and (g)(6) reveals that much of his argument was based on innuendo, speculation, and inferences many of which were in contradiction of the jury verdict. The prosecutor repeatedly drew the court’s attention to the knife and the pictures depicting the victim’s slashed throat. The jury acquitted Mr. Scroggins of using a knife. Hence, by repeatedly pointing to the “wicked looking” knife and emphasizing the wounds resulting from the use of a knife, the prosecutor was, in effect, encouraging the judge to disregard the jury’s verdict of acquittal as to the use of a knife enhancement and, to instead, substitute his own judgment that Mr. Scroggins did use the knife. No authority permits a trial judge, in sentencing, to find facts in contravention of a jury verdict.
Clearly, the evidence adduced at trial established that Scroggins at one point handcuffed the victim. It is also true that the jury found that Scroggins had attempted to rape the victim. However, as the prosecutor pointed out, Scroggins and Beam had the victim at their mercy. Had Scroggins wanted to, there would have been no reason he could not have committed rape itself. The jury, by returning a verdict of guilty as to attempted rape, necessarily believed Scroggin’s testimony that he did not proceed with the rape. Just as clearly, Beam’s testimony to the contrary did not *404convince the jury beyond a reasonable doubt that Scroggins had raped the girl.
Certainly, the evidence also reflects that Scroggins was at the scene of the crime. He not only admitted his presence at the crime scene, but reported the crime to the authorities on the following morning and insisted upon taking them to the murder scene. Hence, as to Scroggins involvement in the murder, the evidence which his jury accepted reflects only that he accompanied Beam and the victim to the creek, that he handcuffed and attempted to rape her, that he did not in fact proceed to rape her, that although he owned the knife used he did not use the knife, and that he reported the crime the following day. While these facts are clearly sufficient to support the jury verdict that Scroggins aided and abetted a felony murder, it does not follow that the evidence established beyond a reasonable doubt that Scroggins’ conduct was within the requirements of I.C. §§ 19-2515(g)(5) and (g)(6).
In State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981), this Court concluded:
heinous means extremely wicked or shockingly evil; that atrocious means outrageously wicked and vile; and, that cruel means designed to inflict a high degree of pain with uttered indifference to, or even enjoyment of, the suffering of others. What is intended to be included are those capital crimes where the actual commission of the capital felony was ac-1 companied by such additional acts as to set the crime apart from the norm of capital felonies — the conscienceless or pitiless crime which is unnecessarily torturous to the victim.
Although the circumstances surrounding the murder and the murder itself were heinous, the particular acts justifying that conclusion were not attributed to Scroggins by his jury. While Scroggins’ acts justify the verdict of first degree murder, they do not fulfill the requirements of I.C. §§ 19-2515(g)(5) and (g)(6).
Equally clear, while keeping well in mind the jury’s verdict, the trial court erred by finding an aggravated circumstance by virtue of the murder being one defined as murder of the first degreé under I.C. § 18-4003(d) accompanied with the specific intent to cause the death of a human being.
I.C. § 19-2515(g)(7) provides:
(g) The following are statutory aggravating circumstances, at least one (1) of which must be found to exist beyond a reasonable doubt before a sentence of death can be imposed:
(7) The murder was one defined as murder of the first degree by § 18-4003, I.C., §§ (b), (c), (d), (e) or (f), and it was accompanied with the specific intent to cause the death of a human being.
In another situation, when a murder is committed in the course of the perpetration of an inherently dangerous felony and it is found that the defendant intended to cause the death of a human being, the statute provides that such a finding is an aggravating circumstance justifying imposition of the death penalty.
In Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), the United States Supreme Court held that the eighth amendment does not permit imposition of the death penalty on one who “aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed.” Hence, under Enmund, a felony murder killing is not an offense which may be punishable by death unless a finding is first made that a particular defendant had the specific intent to kill.
I.C. §§ 19-2515(c) and (d) provide:
(c) Where a person is convicted of an offense which may be punishable by death, a sentence of death shall not be imposed unless the court finds at least one (1) statutory aggravating circumstance. Where the court finds the statutory aggravating circumstance the court shall sentence the defendant to death *405unless the court finds that mitigating circumstances which may be presented outweigh the gravity of any aggravating circumstance found and make imposition of death unjust. (Emphasis added).
(d) In all cases in which the death penalty may be imposed, the court shall, after conviction, order a presentence investigation to be conducted according to such procedures as are prescribed by law and shall thereafter convene a sentencing hearing for the purpose of hearing all relevant evidence and arguments of counsel in aggravation and mitigation of the offense. At such hearing, the state and the defendant shall be entitled to present all relevant evidence in aggravation and mitigation. Should any party present aggravating or mitigating evidence which has not previously been disclosed to the opposing party or parties, the court shall, upon request, adjourn the hearing until the party desiring to do so has had a reasonable opportunity to respond to such evidence. Evidence admitted at trial shall be considered and need not be repeated at the sentencing hearing. Evidence offered at trial but not admitted may be repeated or amplified if necessary to complete the record. (Emphasis added).
Therefore, the court must make two separate and distinct findings, the first of which must be made before the death penalty can be considered. In the first step the court must ascertain whether the offense of which the defendant stands convicted is one “which may be punishable by death.” As explained in Enmund, supra, a felony murder killing is not such an offense unless the defendant himself killed, attempted to kill or intended that a killing take place or that lethal force would be employed. Therefore, the district court must first determine whether the defendant had so acted or had such an intent. If the court cannot make such a finding the defendant does not fall within that class of persons “convicted of an offense which may be punishable by death” as set out in I.C. §§ 19-2515(c) and (d) above. If, however, the court finds that the defendant did so act or had such an intent to kill, only then does the court proceed to the next step, that requiring that the court find at least one (1) statutory aggravating circumstance.
In light of Enmund and I.C. §§ 19-2515(c) and (d) it is clear that a verdict of felony murder coupled with a court’s finding that the defendant had the specific intent to kill a human being pertains only to the first step in the process and should not be reapplied to the second step. Our statutory scheme requires that once a criminal defendant is death penalty eligible at least one aggravating factor must be found. Since the word “aggravate” means “to make worse, more serious, or more severe,” obviously the aggravating factor must be something more than the basic unaggravated offense. Since federal law requires a finding of specific intent as a condition precedent to imposing the death penalty on one convicted of felony murder and since Idaho law requires that an additional aggravating factor must be found where a criminal defendant is “convicted of an offense which may be punishable by death,” it is fundamentally unfair to permit the very circumstance that makes the defendant death penalty eligible (i.e. having the specific intent to cause the death of a human being) also operate as a circumstance in aggravation. In other words, the very finding that makes a defendant eligible to have the judge consider which aggravating factors apply should not again be used to justify the imposition of the death penalty.
We must remember that a defendant convicted of a felony-murder does not come within that class of persons upon whom death can be imposed unless the court first finds that the defendant had the specific intent to kill. If it is the specific intent to kill which makes the defendant eligible to be considered for the death penalty and thereby requires the court to consider the statutory aggravating circumstances; it is improper to use that same specific intent as one of the aggravating factors.
*406In the present case, Scroggins was convicted of aiding and abetting a felony murder. The jury found that Scroggins did not directly commit the crime but aided, abetted and encouraged its commission. As the Enmund Court declared, aiding and abetting a felony murder without the specific intent to kill or intent that a killing take place or that lethal force will be employed does not, under any circumstances, permit imposition of the death penalty. For a felony-murder to be the type of offense which will make the defendant eligible for capital punishment, a finding that the defendant had the requisite specific intent is a preliminary and indispensable step to any further inquiry as to aggravating circumstances. Hence, to the extent that I.C. § 19-2515(g)(7) is denoted as a “statutory aggravating circumstance” such denotation is inaccurate. A finding of felony murder coupled with a further finding the defendant had the specific intent to kill operates to place a criminal defendant in that class of persons “convicted of an offense which may be punishable by death” but, because that finding is necessary to place the defendant within that class of persons, it cannot be repeated for purposes of finding an aggravating circumstance. Therefore, where a defendant stands convicted of felony murder and the court finds the defendant had the specific intent to kill or otherwise meets the Enmund standard, I.C. § 19-2515(g)(7) should not be deemed an aggravating circumstance. I would hold that in such a case, the court must find at least one, of the other factors beyond a reasonable doubt in order to impose a sentence of death.
. When I wrote that the Court should recall the remittitur in Beam’s case, I was under the impression that Beam had not petitioned for a rehearing. I have since been made aware that Beam has filed a petition for rehearing, and a few days ago filed a supporting brief.
. Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).