concurring.
While concurring in the majority opinion, I do so with the reservation that I remain convinced that Idaho’s death sentence procedure, in failing to utilize the jury in the process, violates the Idaho Constitution for the reasons I have stated in State v. Creech, 105 Idaho 362, 670 P.2d 463 (1983), and, State v. Sivak, 105 Idaho 900, 674 P.2d 396 (1983).
Additionally, I agree with United States Supreme Court Justice John Paul Stevens and Justice Bistline that achievement of proportionality and the imposition of the *705death penalty only in appropriate eases can best be obtained when the decision to impose that penalty is made by a jury rather than by a single governmental official.
Judges should resist the constant temptation our offices present to arrogate power unto ourselves to the detriment of the jury system.