concurring specially and dissenting in part.
I cannot agree with the majority’s analysis of the issue of whether the district judge substituted his own judgment for that of the jury in sentencing Mr. Dallas. In particular, it was erroneous for the district court to impose a harsher sentence on Dallas because, in the court’s words, “if we kill a person who represents a public official, we are going to be treated more harshly than if we maybe kill somebody else____”
Dallas was charged with the crime of murder in the first degree under two separate and distinct theories. He was charged with violating I.C. § 18-4003(a)1 and with violating I.C. § 18-4003(b) which provides:
(b) Any murder of any peace officer, executive officer, officer of the court, fireman, judicial officer or prosecuting attorney who was acting in the lawful discharge of an official duty, and was known or should have been known by the perpetrator of the murder to be an officer so acting, shall be murder of the first degree.
The district court informed the jury that, “[f]or purposes of these instructions, an individual employed as a conservation officer with the Department of Fish and Game, who has received certification from the Idaho Peace Officers Standards and Training Advisory Counsel, is a peace officer.”
The district court also instructed the jury:
In this case, to warrant a verdict of guilty under Count I [charging Dallas with the murder of William H. Pogue] of the crime of First Degree Murder under either or both of the separate and distinct. theories of murder, that is 1) a wilful, deliberate and pre-meditated killing, or 2) the murder of a peace officer who was acting in the lawful discharge of an official duty, you must find from the evidence that the State of Idaho proved each of the following essential elements beyond a reasonable doubt:
First Theory of First-Degree Murder (Count I)
1. The defendant, Claude LaFayette Dallas;
2. In Owyhee County, Idaho, on or about January 5, 1981;
3. With malice aforethought, wilfully, deliberately, and with pre-meditation, unlawfully and intentionally killed William H. “Bill” Pogue, a human being, by shooting and discharging a pistol, a rifle or gun into the body of said person and thereby directly causing the death of William H. “Bill” Pogue; or
Second theory of first-degree murder (Count I):
1. That the defendant, Claude LaFayette Dallas;
2. In Owyhee County, Idaho, on or about January 5, 1981;
3. With malice aforethought, wilfully, deliberately, unlawfully, and intentionally murdered a peace officer, William H. “Bill” Pogue, who was acting in the lawful discharge of an official duty, and was known or *683should have been known by the defendant to be an officer so acting. (Emphasis added.)
The court similarly instructed the jury as to Count II of the Information which charged Dallas with the murder of Wilson Conley Elms pursuant to the above two theories.
In Count III of the Information, Dallas was accused of knowingly resisting Idaho peace officers through the use of violence or force. The court instructed the jury that to find Dallas guilty of the charge they must find:
... that each of the following material elements has been proven beyond a reasonable doubt:
1. That Claude Lafayette Dallas, Jr., acted knowingly;
2. That he resisted such officers by the use of force or violence; and
3. That such officers were acting in the performance of a duty imposed by law, and were not using excessive force. (Emphasis added.)
Dallas was not found guilty of first degree murder under either of the two theories. Moreover, he was acquitted of the charge of resisting officers.
As the majority notes, the jury found Dallas guilty of voluntary manslaughter and, since self-defense is a complete defense to voluntary manslaughter, the jury verdict does not require the inference that Dallas acted in self-defense. However, the jury verdict does require the inference that the officers were not, at the time of the killing, lawfully discharging a duty imposed by law. It was undisputed that Dallas resisted Pogue and Elms. In order to acquit Dallas of the resisting officers charge, the jury had to have determined that Pogue and Elms were not acting in the course and scope of their employment as peace officers. Moreover, Dallas was charged with first degree murder on the theory that he had killed peace officers. The jury had to resolve the issue of whether Pogue and Elms were lawfully discharging a duty imposed by law, and hence, acting as peace officers at the time of the killing in order to return a verdict on that charge. Because the jury did not convict Dallas on the charge of first degree murder on the theory that he had killed peace officers we must infer that the jury concluded that Pogue and Elms were not, at the time of their death, acting as peace officers.
Hence, the district court’s remarks about harsher sentences for those who kill peace officers were completely inappropriate following a verdict wherein the jury necessarily determined that the victims were not, at the time of the killing, peace officers.
The majority relates that a trial judge has access to a broad range of information prior to announcing sentence and that often the information available to a judge will include facts not presented to the jury. While this statement is true it has no relevance in this case because nowhere in the sentencing record was additional evidence submitted on the precise issue of whether, at the time Pogue and Elms were killed, they were acting as peace officers. Hence, as to this issue, the court had no information that had not been presented to the jury. The jury had heard the witnesses, ascertained their credibility or lack thereof, and had weighed the evidence. In so doing, the jury necessarily made factual findings in support of the verdict. There is simply no basis in law or reason for the district court to impose a sentence based on the court’s factual determination that Pogue and Elms, were, at the time of the killing “peace officers,” when such finding was contrary to that reached by the jury. For that reason, I would remand the case to the district court for resentencing with instructions that it not consider the victims to be “peace officers” for the purpose of imposing a harsher sentence on the defendant.
I strongly dissent to part III of the majority opinion wherein the majority refuses to overrule the trial court in its failure to fully compensate Mr. Mauk for his reasonable attorney’s fees, which compensation would require the payment of an additional *684$4,000.00 to him. The trial was not only lengthy but exceedingly complex; one attorney could not reasonably be expected to present the defense; and, had Mr. Mauk not been willing to assist at trial without advance promise of payment, we may well have been faced with a situation requiring reversal and retrial because it is unlikely that just one attorney could have furnished Dallas with effective assistance of counsel. As judges receiving a monthly paycheck and having no office overhead, we easily forget the economics of operating a law office. Mr. Mauk rendered a great service not only to his client but to the judicial system; he billed his services at $30.00 per hour which is less than one-third of the prevailing rate for attorneys of his experience conducting a trial of this magnitude. Although he billed at less than one-third the going rate, he was paid only half of the amount billed, which compensation provided him $15.00 per hour against services which could reasonably have been charged at $75.00 to $100.00 per hour.
Studies reflect that the overhead expense of a typical Boise lawyer in a small firm charging $75.00 per hour is $55.00. Thus, when compensated at $15.00 per hour, Mr. Mauk was likely losing $40.00 per hour for his necessary efforts on behalf of his client and in furtherance of our system of criminal justice. Superimposed upon that loss is the fact that while one is engaged in a major trial there are substantial periods during both trial preparation and trial itself when the lawyer must focus exclusively on the case at hand. Hence, the lawyer may have to turn away other clients whose concerns require immediate legal attention. Thus the attorney also loses future clients because of a willingness to represent a criminal defendant. Trial judges may curry favor with taxpayers and county commissioners when they award fees at less than a subsistence rate, (and indeed they should strive to achieve economic efficiency), but it is a false economy that compensates attorneys so little as to destroy the effectiveness of counsel and the quality operation of our criminal justice system.
Both trial and appellate judges must become more aware not only of the economics of legal practice, but of the indispensable service the criminal defense bar renders which is fundamental to our system of government. We do our system great and lasting harm when, as here, we grossly under-compensate counsel.
. I.C. § 18-4003(a) provides:
18-4003. Degrees of murder. — (a) All murder which is perpetrated by means of poison, or lying in wait, or torture, when torture is inflicted with the intent to cause suffering, to execute vengeance, to extort something from the victim, or to satisfy some sadistic inclination, or which is perpetrated by any kind of wilful, deliberate and premeditated killing is murder of the first degree.