State v. Lankford

BISTLINE, Justice,

concurring only in affirming the verdict and dissenting.

I.

The most important issue at stake here was the last dealt with in the majority opinion, Part IV(3): “Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” 1 The majority, in its footnote 14, runs off its usual routine string of cases in support of its routine declaration that “we have reviewed the sentence imposed and the sentences imposed in similar cases in an effort to assume that the sentence in this case was not excessively disproportionate.” Added to that string of eases for the first time, and prominently heading the list, are State v. Windsor, 110 Idaho 410, 716 P.2d 1182 (1985), and State v. Scroggins, 110 Idaho 380, 716 P.2d 1152 (1985), State v. Beam, 109 Idaho 616, 710 P.2d 526 (1985), and State v. Fetterly, 109 Idaho 766, 710 P.2d 1202 (1985). The majority opinion, however, contains surprising little informing the reader as to what dispositions were made in the string of cases cited, and especially with regard to the two last cited, or how Lankford’s death-deserving conduct measured up to the death-deserving and death-undeserving conduct in the string, other than this much:

Our review of similar recent cases demonstrates that Lankford’s acts can be easily aligned with other Idaho cases in which the death penalty was imposed. In State v. Gibson, 106 Idaho 54, 675 P.2d 33 (1983), and State v. Paradis, 106 Idaho 117, 676 P.2d 31 (1983), the nature of the crime and the character of the defendants were similar to this case. The murders in those cases were not only brutal, but the defendants had, like Lankford, prior criminal records. Majority op., p. 704, 747 P.2d, p. 726.

All that the majority does in its proportionality review is to portray the conduct of Lankford in connection with the killing of the Bravence couple from which it is concluded that: “The district court judge was entirely justified in finding from these [recited] facts that Lankford was a major participant in the killings and that he intended that the Bravences die.” Majority op., at p. 704, 747 P.2d at p. 726. The majority opinion appears to be patterned after that of the Arizona Supreme court in its second review of the Raymond Tison case on post-conviction proceedings:

Intent to kill includes the situation in which the defendant intended, contemplated, or anticipated that lethal force would or might be used or that life would or might be taken in accomplishing the underlying felony. State v. Raymond Tison, 142 Ariz. [454] at 456, 690 P.2d [755] at 757 [1984].

Felony murder is first degree murder, and it can merit life imprisonment. Felony murder is not, however, necessarily premeditated first degree murder, which can merit the death penalty. The majority opinion correctly reports that the district court ruled that there was a specific intent to cause the deaths of the victims, BUT, the majority avoids taking note that the trial court was careful not to make a finding that such intent was attributable to Bryan Lankford and instead made this finding:

(d) The murders were defined as murder of the first degree by Idaho Code Section 18-4003(d), and the murders were accompanied with the specific intent to cause the deaths of Mr. and Mrs. Bravence. R., p. 348.

That language, beyond any doubt, may have application to the conduct of Mark *706Lankford, as described by Bryan Lankford. The majority opinion recites that “Lank-ford testified that he did not intend that the Bravences die,” which is correct. He also testified that he did not know in advance what Mark Lankford had in mind, other than the stealing of a vehicle:

The Defendant testified at his trial that he and his brother decided to leave Idaho because it got cold ... He further testified that his brother, Mark Lank-ford, decided to steal a van and talked Defendant into going along with the theft____ The Defendant testified that he never planned on shooting anyone, though he did carry the shotgun into the campsite at his brother’s request____ He then testified that while he was talking to the man (Robert Bravence), Mark Lankford came out of the bushes and told the man to get down on the ground____ Mark Lankford then hit the man over the head with a club____ When Mrs. Bravence came up from the river, Mark Lankford told her to get down on the ground and upon doing so, Mark Lankford hit her across the back of the neck____ The Defendant and Mark Lankford then picked up the Bravences and placed them into the van. ... The Defendant then drove the van back to the Lankford’s former campsite. ... Upon arriving at the area, the Defendant stayed in the car because he was “hysterical”, “crying and very upset” while Mark Lankford took the people into the woods____ The Defendant did not think that the people were dead at the time that Mark Lankford carried them into the woods---- The Lankfords then drove to Oregon____ The Defendant further testified that he signed charge receipts at the Holiday Inn in Wilsonville and other places because his brother told him to do so____ The Defendant further testified that Mark did not generally get along with people because he was violent and had a very bad temper most of the time. Defendant’s Brief, pp. 6-7.

The foregoing is excerpted from the Defendant’s Brief. It compares favorably with the majority’s recitation, pp. 691-692, 747 P.2d pp. 713-714.

There is here, then, no contention, and also no jury finding, that Bryan Lankford delivered any of the death blows.2 The majority upholds the imposition of the death penalty upon being able to see validity in the judge’s finding, as rewritten by the majority, that Bryan Lankford “intended that the Bravences die.” Tnis misstatement of what the trial judge actually wrote is blatant and inexcusable, but serves the majority’s purpose in choosing language which the majority prefers to believe was what the district judge really meant to say — so as to be brought in conformance with Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140—which is barely mentioned in the majority opinion,3 although it was thoroughly discussed in the Windsor majority opinion, Windsor, supra, 110 Idaho at 418-19, 716 P.2d 1182.

The majority closes its cursory proportionality review with a quotation from State v. Aragon, which is delivered much as a blessing might be:

We acknowledge the trial court’s superi- or ability to observe witnesses and their demeanor during the sentencing phase of a trial, and especially the unique ability of the trial judge to observe the character and demeanor of the defendant, a tool essential to the ultimate goal of tailoring a sentence to a particular defendant. With that unique ability of the trial court in mind, we have determined that the sentence imposed in the present case is not out of proportion to the sentence heretofore imposed. State v. Aragon, 107 Idaho 358, 369, 690 P.2d 293, 304 (1984).

The Court’s opinions in the cases of Windsor and Scroggins failed to acknowledge *707the trial court’s superior ability, and did not keep in mind that “unique ability.” To the contrary, the Court, in Windsor and also in Scroggins, came out with a “newly enunciated doctrine of” paramount exercise of discretion which resulted in a Supreme Court “ ‘qualitative review’ of the record” from which “the Supreme Court determined that the sentence of death in the Windsor and Scroggins cases were excessive and disproportionate.” Those quotations are, of course, taken directly from the eloquent order of disqualification authored by the Honorable Edward J. Lodge, the district judge who presided in the Windsor case and also in the Scroggins case, where in both cases he had imposed a sentence of death. Judge Lodge wrote courageously and concisely on the requirement of proportionality, and this Court’s debasement of that doctrine. And Judge Lodge wrote from a position where only he was best positioned to make an assessment that was direly in need of being made. He had also, using his own words, “accepted that awesome responsibility” in imposing the death sentence on Fetterly, who was Windsor’s co-defendant charged, tried, and convicted for the murder of Sterling Grammer, and also in imposing the death penalty on Beam, who was Scroggins’ co-defendant charged, tried, and convicted for the murder of thirteen-year-old Mondi Lenten. Because the issue presently under address is proportionality, and because on previous occasions I have been impelled to the view that Idaho will only achieve any degree of reasonable proportionality in capital sentencing by restoring to the jury “that awesome responsibility,” it is clearly in order that in Judge Lodge’s own words the circumstances of Windsor and Scroggins be submitted to a candid world:

“Idaho Code Section 19-2827(c)(3) is seemingly clear in providing that the responsibility of this state’s Supreme Court in reviewing a death sentence is to ascertain whether a death penalty is ‘excessive’ or ‘disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant,’ and not that the appellate court exercise what has been referred to as a ‘qualitative discretionary review’ or an ‘independent review.’ With all due respect, it is difficult for this court to believe that such a ‘qualitative review’ undertaken by the Supreme Court is more legitimate than the trial court’s assessment after having personally participated in all the proceedings and having had the firsthand opportunity to evaluate the facts, circumstances, and persons involved in a capital case, particularly when two members of the Supreme Court are predisposed to find against the legitimate imposition of a death sentence when it is prescribed by the court as opposed to a jury. Rather, the decision-making responsibility always has been and always should be in the trial court, and only when there is determined to be an abuse of that discretion should an appellate court intercede. The United States Supreme Court held in Spaziano vs. Florida, [468 U.S. 447] 104 S.Ct. 3154 [82 L.Ed.2d 340] (1984), that sentencing by a trial judge satisfied both the Sixth and Eighth Amendments because ‘a trial judge is more like a jury than he is like an appellate court. Like a jury, he has seen the witnesses and is well positioned to make those determinations of demeanor and credibility that are peculiarly within a trial judge’s province.’ The same can be said for all the nuances involved in the trial of a capital case which are not ‘in the record,’ but which are within the observations and knowledge of the trial judge, including community outrage and/or tolerance, community expectations and societal goals, the rights and needs of a victim’s family, and the totality of the circumstances surrounding the defendant.

“The records in the Windsor and Scrog-gins cases amply support the determination that both defendants personally intended that their victims suffer death, a finding made by both the trial court and the jury which satisfies the Eighth Amendment as well as the rule of Enmund vs. Florida, 45 [458] U.S. 782 [102 S.Ct. 3368, 73 L.Ed.2d 1140] (1982). Yet, even though findings regarding the personal responsibilty and moral guilt of each defendant were made by the trial court and are supported by the evidence, these defendants have escaped punishment for their actions *708equivalent to that imposed on their co-defendants, whose death sentences have been affirmed on appeal. Despite a record which strongly indicate that in their respective cases both Scroggins and Windsor were the motivating forces behind the commission of the crimes and were in fact the catalysts which set the crimes in motion, a situation has resulted which suggests that ‘where the death of another is attempted by two people ..., 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.’ 85 I.S.C.R. at 2566 (Justice Bistline’s separate opinion). In both cases it is clear that Windsor and Scrog-gins knew that the victim was to be killed and were actively and inextricably entwined in the victim’s fate. With the possible exception of the Creech cases, where there have been multiple deaths, this court is not aware of any murder case in this state where the death penalty has been upheld which would offend the average person more than the facts presented in Windsor and Scroggins.

“In the Windsor opinion the Supreme Court maintained that Windsor’s level of participation in the crime was sufficiently different from that of her co-defendant Fetterly so as to justify the disparity in their sentences. Additionally, certain other factors were cited: her lack of formal criminal record; the lack of significant prior criminal activity; the lack of evidence regarding any history of violent behavior or propensity toward violence; her cooperation with authorities both after arrest and during incarceration; her troubled childhood; and her strong rehabilitative potential. This review glossed over the facts of Windsor’s actual involvement in bringing about Sterling Grammer’s death and instead emphasized the mitigating factors which were thoroughly considered by this court and found not to outweigh the aggravating factors.

“Identified in the Scroggins opinion as justification for vacating the death sentence was Scroggins’ lesser criminal involvement in the killing of thirteen-year-old Mondi Lenten, compared to that of co-defendant Beam, as well as his unstable upbringing, mental and chronological age, level of cooperation, and lack of history of violent criminal conduct. However, the record in this case supports the conclusion that any disparity between Scroggins’ and Beam’s participation is a distinction with little difference. It is true that the Scrog-gins jury did not find him guilty beyond a reasonable doubt of slitting his victim’s throat, but neither did the jury so find in Beam’s case; yet it most certainly happened, and both defendants are legally responsible. Additionally, while Scroggins was convicted of the included offense of Attempted Rape and Beam was convicted of Rape as charged, the Scroggins verdict must be viewed in light of the evidence. It is inconceivable to this court that Scroggins should be given any consideration in the sentencing process for the disparity in the verdicts when the only reasonable explanation for Scroggins’ not accomplishing the rape, in light of all the other evidence, was that his victim, in a final and desperate measure, forced a bowel movement in the hope that the excrement would turn Scrog-gins away, and when the evidence indicates that he still forced her to commit an act of fellatio on him. Also, the fact that Scrog-gins reported the crime has to be viewed in context in order to see it for what it was. First, Scroggins when home and went to sleep with no pangs of conscience after having been involved in a brutal slaying. The next day, under parental influence, and with co-defendant Beam on the run and a handy ‘fall guy,’ Scroggins went to the police. No one involved in this case — police, investigators, the jury, or this court— has ever found or believed that Scroggins told the truth about what happened to Mondi Lenten, except to the extent that he did lead the police to the crime scene, which he of course had to do in his attempt to place the blame on Beam, his supposed friend. Additionally, while the Supreme Court’s opinion suggests that the trial court weighted Scroggins’ likely performance in a penal setting more heavily than it in fact did in support of the decision to impose a *709death sentence, a recent check with the warden of the Idaho State Penitentiary demonstrated that this court’s assessment was borne out upon Scroggins’ release from death row, whereupon his conduct caused him to be first placed in the ‘hole,’ and then in close or protective custody. Finally, this court carefully considered the mitigating factors identified by the Supreme Court in its opinion prior to determining at the time of sentencing that the mitigating factors did not outweigh Scrog-gins’ culpability for the crime and the nature of his character.

“The crimes committed by both Scrog-gins and Windsor were accomplished under such circumstances that reasonable minds could not differ about the fact that there was in each case a knowing and final betrayal by the defendant of any respect for human life. Even after a careful consideration of the mitigating factors in their respective cases, it was and still is the conclusion of this court that these mitigating facts do not outweigh the aggravating factors. While a defendant may demonstrate a change of heart once he or she is cornered, may become cooperative, may display some rehabilitative potential, and may work within the system to emphasize his or her good points and to obscure the bad ones, these factors in and of themselves must not automatically overshadow a defendant’s culpability for the crime which has been committed and for the life which he or she has previously led, if there is to be any validity to the sentencing objective of protecting society in addition to serving the interests of a defendant. Further, where a court must give a disproportionate amount of weight to matters which occur after the commission of a crime, there never will be proportionality in sentencing between the advantaged and the disadvantaged."

Order of Disqualification, State v. Windsor and State v. Scroggins, pp. 3-10 (emphasis added).

My opinion filed in the Windsor case demonstrates that my views were the same as those of Judge Lodge. At page 428 of 110 Idaho, 716 P.2d 1182, I wrote:

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 Enmund situation— not even a distant cousin of Enmund.

and, at page 432, 716 P.2d 1182;

Here we have no driver of a get-away car — completely detached from the scene of a murder-in-progress. 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.

The majority, in its Windsor opinion, nevertheless found justification for allowing her to escape the death penalty which had also been meted out to Fetterly, and affirmed, in the disparate sentences imposed on Bainbridge, State v. Bainbridge, 108 Idaho 273, 698 P.2d 335 (1984), and Sivak, State v. Sivak, 105 Idaho 900, 674 P.2d 396 (1983), and likewise the sentences imposed on McKinney, State v. McKinney, 107 Idaho 180, 687 P.2d 570 (1984), and Small, State v. Small, 107 Idaho 504, 690 P.2d 1336 (1984):

In both sets of cases, the defendant who did the actual killing was given the death penalty while his co-defendant received a life sentence. The difference in their degree of participation in the crime appeared to be the primary factor justifying the disparity in sentences in both sets of cases. Windsor, supra, 110 Idaho at 421, 716 P.2d 1182.

The majority in Sivak upheld the imposition of the death penalty, and had the effrontery to observe that:

I.C. § 19-2827 requires us to conduct a review of the record to determine if this particular death sentence resulted from any arbitrary factors, such as passion or prejudice. That section also requires us to determine if the sentence imposed in this particular case is excessive or dispro*710portionate to sentences imposed in similar cases. Our independent review of this case does not reveal any indication of existence of arbitrary factors. Our review of similar cases involving the death penalty, while necessarily limited by the lack of such cases, as noted in State v. Creech, supra, does not reveal the presence of any particular excessiveness or disproportionality in this particular case. The heinous nature of the crime committed in this case, and the nature and character of the defendant, makes the imposition of the death penalty in this case both proportionate and just. Sivak, supra, 105 Idaho at 908, 674 P.2d 396 (emphasis added).

But, the majority not at that time incorporating a string citation of cases reviewed, artfully ignored State v. Major, 104 Idaho 4, 665 P.2d 703 (1983, a first degree premeditated murder conviction — a brutal stabbing — where the death sentence was not imposed. Equally ignored was a companion case to Sivak, namely Bainbridge, supra, where the death penalty was not imposed. Nor can it be said in defense of the Sivak majority that omission of any comparison to Major and Bainbridge was inadvertent. My own opinion rather forcibly brought those other cases to the fore:

It is difficult, if not impossible, to reconcile the two sentences. One murderer dies; the other lives. This is a classic case of the disparity in sentencing which produced Furman and in turn led to the second series of cases four years later wherein the Supreme Court declared that Furman had been misunderstood, while Idaho in the interim destroyed death penalty sentencing procedures which would today be entirely valid according to my own reading of the “threshold theory” which the Supreme Court now retreats to in Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). I am not critical of Justice Stevens’ opinion— which was expected. At the same time I agree with the view of Justice Marshall that “the States may as well be permitted to re-enact the statutes that were on the books before Furman." 462 U.S. at 910-11, 103 S.Ct. at 2760. For, as I have stated and written even prior to receiving Zant, Idaho’s procedure in capital sentencing did not lead to arbitrary and capricious imposition of death sentences. Well instructed juries would hear evidence offered in mitigation and in aggravation, and would decide between life or death. Bifurcation of the guilt phase from the penalty phase would serve to avoid undue prejudice to a defendant charged with first degree murder. Sivak, supra, 105 Idaho at 914, 674 P.2d 396.

In that opinion, writing primarily for the education of the majority who did not seem to be aware of Bainbridge, the involvement of both Sivak and Bainbridge, highly similar to the joint involvement of Fetterly and Windsor, and also to the joint involvement of Scroggins and Beam, it was pointed out that:

Two men, Sivak and Bainbridge, were found guilty of first degree murder which was committed in the course of a planned robbery of a gas station attendant who was acquainted with both and who could have identified both individuals. The attendant, a woman but a few years older than the defendants, was stabbed twenty times and shot three times — a brutal murder if ever there was one. The two were jointly charged, as they should have been, given a preliminary hearing, and held to answer. A single information was filed charging them jointly with armed robbery, premeditated murder, and murder in committing a felony of robbery, as they should have been charged. Neither made a motion for separate trial, apparently being unable to show the prejudice required by our case law, and they should have been tried together. But they were not so tried. One defendant, Bainbridge, filed an affidavit of disqualification against Judge Newhouse, who thereupon disqualified himself as to Bainbridge only, for which there may or may not be precedent in some other jurisdiction. In any event, Judge Newhouse assigned Bainbridge’s trial to Judge Rowett. In that strange manner the co-*711defendants were not tried together as they should have been for the crimes the two of them committed, but the results of the guilt trials came out the same, as both were convicted of first degree murder. There is little doubt in my mind, after reviewing the facts and circumstances of the crimes, that had they been tried jointly and had the jury been the sentencer both would have suffered the same fate. But they were not tried together for their jointly committed crimes as they should have been, and a jury was not the sentencer as should have been the case. As it stands now, one dies and one lives. If this is not disparate sentencing, then I do not expect to ever see it.
The two co-defendants were not only bungling criminals and inept, and thus brutal murderers, but also not loyal to each other. Sivak, who testified at his trial, claimed that Bainbridge did all of the robbing and murdering while he, Sivak, was merely in the company of Bainbridge at a poor time. Bainbridge, who did not testify at his trial, gave taped statements to the investigating officers which, on his turn to talk, blamed the entire criminal activity on Sivak, Bainbridge by misadventure merely happening to be with him at the wrong time and place, as it turned out. There were no other witnesses to the crime of murder than these two defendants. The two different, juries convicted both of first degree murder and robbery, Sivak testifying to his innocence, Bainbridge not taking the stand. Neither testified at the other’s trial. Notwithstanding like jury verdicts the district judges involved imposed the drastically different sentences for the same crime of murder. As acknowledged in the majority opinion in Part II B, Judge Newhouse in Sivak’s case made a § 19-2515 finding that “[t]he defendant dominates his co-defendant and is primarily responsible for all that occurred.” The majority, notwithstanding the provisions of I.C. § 19-2827, makes no mention of the penalty imposed in Bainbridge, and strangely does not mention the complementing findings of Judge Rowett in Bainbridge’s case that “[although he had the opportunity and the encouragement of the co-defendant to do so, defendant did not himself inflict any death threatening wounds on the victim,” and “that defendant did not himself deliver any death threatening blows to the victim____” Id. at 915-16, 674 P.2d 396.

Following which, on the issue of required proportionality, I added my assessment in regard to Sivak and Bainbridge which, I am gratified to be able to say now, is much the same as Judge Lodge’s post-mortem review of Windsor and Fetterly following this Court’s setting aside of the death penalty imposed on Windsor:

Now, a large difficulty with these two cases and the disparity in penalties imposed, is an inability to see how it would make any genuine difference which of the two defendants delivered the more telling blows, knife wounds, or shots against and into their helpless victim. The cold inescapable fact is that they murdered her, and that the two district judges, neither of whom ever heard Bainbridge testify as to the circumstances of the crime, and only one who heard Sivak testify, could both to a degree exonerate Bainbridge at Sivak’s fatal expense is regrettably to my mind unacceptable. Moreover, it highlights the bizarre results of having two separate trials where there should have been a single trial, and drives home the importance of adhering to jury death sentencing as is a defendant’s right under the Idaho Constitution. Id. at 916, 674 P.2d 396.

Judge Lodge, where proportionality is involved, performed a great service for the State of Idaho in speaking out against this Court’s disparate sentencing in Windsor viz-a-viz Fetterly, and in Scroggins viz-a-viz Beam. Had he also written of Sivak and Bainbridge, an even greater service would have occurred. It is, in my view, of extreme importance that this Court, and the legislature, be given the considered concensus of the state’s district judges in the area of capital sentencing. To date, other than for Judge Oliver’s rebuke of *712this Court’s reversal of a death sentence imposed by him, see State v. Osborne, 104 Idaho 809, 823, 663 P.2d 1111, 1125 (1983) (Bistline, J., concurring and dissenting), only Judge Lodge has let his views be known, and then only when his conscience so motivated him. It is to be remembered that only in recent years have the state’s district judges had thrust upon them that “awesome responsibility.” In speaking out against this Court’s reversal of the death sentence in Windsor, Judge Lodge noted that, in evaluating the wisdom of appellate court sentencing, “a trial judge is more like a jury than he is like an appellate court. Like a jury, he has seen the witnesses and is well positioned to make those delineations of demeanor and credibility that are peculiarly within a trial judge’s province.” He was quoting from Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984). Because a jury is more like a jury than is a trial judge like a jury, and speaking as one member of this Court, I express the view that everyone involved in capital sentencing, at whatever level, would greatly benefit if the views of Judge Lodge were made available, together with those of all the state’s district judges, on the appropriate comments of United States Supreme Court Justice John Paul Stevens, also writing in Spaziano, and joined by two other justices. His beliefs are more readily available in State v. Stuart, 110 Idaho 163, 179-81, 715 P.2d 833, 849-51 (1985) (Bistline, J., dissenting). In sum, Justice Stevens stated it thus:

“In the 12 years since Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), every Member of this Court has written or joined at least one opinion endorsing the proposition that because of its severity and irrevocability, the death penalty is qualitatively different from any other punishment, and hence must be accompanied by unique safeguards to ensure that it is a justified response to a given offense. Because it is the one punishment that cannot be prescribed by a rule of law as judges normally understand such rules, but rather is ultimately understood only as an expression of the community’s outrage — its sense that an individual has lost his moral entitlement to live — I am convinced that the danger of an excessive response can only be avoided if the decision to impose the death penalty is made by a jury rather than by a single governmental official. This conviction is consistent with the judgement of history and the current consensus of opinion that juries are better equipped than judges to make capital sentencing decisions. The basic explanation for that consensus lies in the fact that the question whether a sentence of death is excessive in the particular circumstances of any case is one that must be answered by the decision maker that is best able to ‘express the conscience of the community on the ultimate question of life or death. Witherspoon v. Illinois, 391 U.S. 510, 519, 88 S.Ct. 1770, 1775, 20 L.Ed.2d 776 (1968) (footnote omitted).
“Thus, the legitimacy of capital punishment in light of the Eighth Amendment’s mandate concerning the proportionality of punishment critically depends upon whether its imposition in a particular case is consistent with the community’s sense of values. Juries have historically been, and continue to be, a much better indicator as to whether the death penalty is a disproportionate punishment for a given offense in light of community values than is a single judge. If the prosecutor cannot convince a jury that the defendant deserves to die, there is an unjustifiable risk that the imposition of that punishment will not reflect the community’s sense of the defendant’s ‘moral guilt.’ ” Spaziano, supra, 104 S.Ct. at 3167-78 (footnotes omitted). State v. Stuart, 110 Idaho 163, 179-81, 715 P.2d 833, 849-51 (1985) (emphasis added).

That which is also missing from the majority opinion is any discussion comparing Bryan Lankford’s conduct with that of his brother Mark Lankford, notwithstanding, as was equally true in Sivak, where we had the record on appeal here in the clerk’s ! office, we also have the record in the Mark Lankford case. Should proportionality be *713considered as it was by the majority in Windsor, i.e., her culpability as compared to Fetterly’s, or should it be as it is today, comparing the murder of the Bravences in relation to the murders perpetrated by Paradis and Gibson? On this sad state of affairs, I continue to find appropriate my final remarks in the Stuart case:

As I wrote in Sivak or Bainbridge, the proportionality requirement prescribed by the Supreme Court and in turn adopted by the Idaho legislature is virtually meaningless. Proportionality in capital sentencing in Idaho will only result when first degree murder charges are all tried to a jury, and the jury also as the conscience of the community makes the awesome decision of life or death where a first degree murder verdict is returned.
How there can ever be any real proportionality continues to escape me where prosecutors exercise a divine right to reduce the charge and to ask or not ask for the death penalty, as may at the moment so move them. Recently, the citizens of Ada County were given to understand that the prosecutor had decided that on a guilty plea to the execution-style murder of a girl in her twenties, he would not ask for the death penalty. Other defendants so accused do not fare so well. Such matters are not for mortal prosecutors, but for mortal jurors. Id. at 202, 715 P.2d 833 (emphasis original).

With Windsor, Scroggins, Bainbridge, and Osborn having escaped the death penalty by reason of the (erroneous) grace of this Supreme Court, how is it that in the name and pursuit of proportionality, the remittiturs are not recalled and proportionality meted out as it should be. Precedent is not lacking. State v. Ramirez, 34 Idaho 623, 203 P. 279 (1921), which was discussed most recently in State v. Stuart, 110 Idaho at 228-29, 715 P.2d 833 (Bistline, J., dissenting on rehearing).

II.

The majority’s overuse of literary license in regard to Bryan Lankford’s “numerous confessions regarding the killings,” at p. 692, 747 P.2d at p. 714, merits some comment in passing. Putting aside the loose use of “confessions,” “admission” and “statements” as though the same are interchangeable, it would seem to me that if the majority has found in this voluminous appeal record any confession by Bryan Lank-ford to his killing of either of the Bravences, it would be put on display without the least hesitation, just as the majority did, and accurately set out a synopsis of his testimony at trial. Where the majority asserts that there are such confessions, admissions, and statements without any elaboration or explanation as to content, it can only be assumed that it is a ployful play on words. The robbery was undoubtedly what led to the killings, hence, if Bryan Lankford conceded his complicity in the robbery, which he did by his own testimony, the majority is able to leave the reader believing that his statements, admissions, and confessions were that he participated in the killing. Seeing no reason for such shenanigans in writing a decision in a death penalty case, with some trouble I have located the oral recitation of the “written confession to an FBI agent.” Working in Texas, he became aware that the Bravences were missing, and last seen in Idaho, and ultimately got involved with Bryan and Mark Lankford at the sheriff’s office in Liberty County, Texas, where the two Lankfords were jailed. He testified only as to his interview with Bryan and a statement signed by him, and the discussion which led up to it. The statement was marked as Exhibit 76, admitted into evidence by the court, there being no objection, but Exhibit 76 does not seem to be amongst the exhibits. Mr. Ploeger, the agent, read it in giving his testimony after first detailing how it was procured:

BY MR. .ALBERS:
Q. Let’s try again. How did the interview progress? What happened within the interview?
A. Okay. I interviewed him told him what we wanted to talk to him about and so forth. He told several stories; and, then, we ultimately prepared a signed statement.
*714Q. And how was it that one particular story got prepared in writing?
A. Well, the first story Mr. Bryan Lankford told was that he and his brother Mark had gone from the Houston area to Canada where Mark’s car had been stolen. That they’d gone to Canada in Mark’s car and it had been stolen. That didn’t wash, I didn’t believe it. I pointed out that Bryan’s fingerprints had been found in the Bravence van, and he had to have been in it at one time or another, and he said: Okay. The second story was that: yeah, we up there, we were camping in Idaho. We didn’t want to use Mark Lankford, my brother’s car anymore, so I stayed in the camp, Mark left for a few hours, came back with a green van and we went on.
And I told him that wouldn’t wash because his handwriting and fingerprints had been found on credit card receipts and so forth from the use of the Bravence credit card. The second time he said: Okay. I’ll tell you the truth, the whole story. And that’s when we started the signed that statement.
Q. And how did you go about preparing such signed statement?
A. I set out and lettered out in narrative form. I’d say; Well, what happened next____ and I’d write a sentence, and then say: What happened next____and I just set and wrote it out. And at the end he read it and accepted my words, if you will, and signed it and wrote a little paragraph at the end of it.
Q. This document is in your longhand?
A. Yes, sir.
Q. And it bears some of his longhand?
A. Yes, sir.
Q. Did he have an opportunity to look at each page?
A. Yes, sir. He read and initialed each page and signed the last page.
Q. What happened to that original document?
A. It was presented here in court several months ago.
Q. Calling to your attention what’s been marked for identification as State’s Exhibit No. 76, what is that?
A. This is the signed statement we prepared on October the 7th, 1983, at Liberty County, the one that Bryan Stuart Lankford furnished to me.
Q. How many pages is it?
A. Six pages.
Q. Do you recognize each of the six pages?
A. Yes, sir. My handwriting is on each of the six pages.
Q. You indicated there were initials of Bryan Lankford on the pages, where do those appear?
A. Yes, sir. They appear at the top left where each page was started, at the bottom right where each page was ended.
Q. On the last page does there appear any handwriting of Bryan Lankford?
A. Yes, sir. On the last page Bryan's initials appear at the top left. He signs it at three quarters of the way down the page; and, then, I signed it as Larry Allen did as witnesses to the statement.
Q. Is there a discernible change in the handwriting?
A. Yes.
MR. ALBERS: Move the admission of Exhibit No. 76.
MR. LONGETEIG: No objection.
THE COURT: 76 will be marked into evidence.
(Thereupon State’s Exhibit No. 76 was marked into evidence by the deputy court clerk.)
BY MR. ALBERS:
Q. Mr. Ploeger, since this is in your handwriting, could you read that for us?
A. Yes, sir: Liberty, Texas, October the 2d, 1983, I Bryan Stuart Lankford make the following free and voluntary statement to Federal Bureau of Investigation Special Agent Dennis L. Ploeger, and Liberty County, Texas Deputy Sheriff Larry Allen.
Special Agent Ploeger furnished me with a form captioned Interrogation Ad*715vice of Rights that I read, understood, and signed.
I finished the eleventh grade in school, got a GED certificate, and can read and write the English language.
Sometime in early June, 1983 Mark Lankford, my brother, came to Conroe, Texas where I was staying with my uncle, Kenneth Lankford, at 117 Lidian (phonetic) Street. I was planning to leave the area, and I called Mark to tell him I was leaving. Mark said he was going to leave the area also, so he came to Conroe from Houston, Texas, where I called him, and we left Conroe together.
We traveled in Mark’s brown Chevrolet Camaro Z28, and Mark did all the driving. I had money for gas. We went through Oklahoma, Kansas, Wyoming, and possibly one or two other states before arriving in Idaho. Mark and I camped between Golden and Elk City, Idaho when we got to Idaho. We were at the camp that is off a dirt road on the side of a mountain in the woods. It was high on the mountain, and it snowed every day. After about two weeks Mark and I decided to leave the area. We had hidden Mark’s car under brush near our campsite earlier. Mark wanted to leave the car because it had Texas license plates and he was afraid that he would be stopped, and he had not been making payments on the car.
We left all our personal belongings in the car except for a small bag of clothes and a twelve gauge longtom shotgun, that I carried. We left the camp and were walking down the dirt road from the camp when a white man in tan Jeep picked us up and took us to the main road. We walked towards Golden, Idaho until we came to a campsite where a green VW van was parked. Mark said there was a easier way to travel than walking, and after about an hour of discussion, we decided to steal the VW van for transportation.
Mark and I walked into the camp where the VW van was parked. A white man and white woman were in the camp. I was carrying the above mentioned shotgun, and Mark told the man to get on the ground. The man did not get on the ground, but said take the money and the van and something like don’t hurt us. Mark then hit the man over the head with a night stick, like a policeman uses. He had the night stick for a long time, and carried it in his car. The woman came up from a nearby creek about that time, and Mark told her to get on the ground. She said something about her husband being hurt on the ground; and, then, she got on the ground. Mark then hit the woman over the head with the same night stick that he had hit the man on the head with. I don’t remember if Mark hit the man or woman once or more than once.
He then — we then put the camping gear of the man and woman into the VW van. The man and woman had a dog, but we left the dog at the campsite. We then put the man and woman on the floor in the back of the VW van. It took both Mark and I to put them into the van. I then drove the VW van back to where Mark and I had been camped. Mark got out and took the man and woman out the side sliding door of the van and drug them off into the woods. I stayed in the van. Mark wanted to take the man and woman back to our old campsite. I am not certain, but we may have picked up some of our belongings. I don’t remember any discussion about hiding the man and woman. I didn’t know if the man and woman were dead when we took them to our old campsite. After that it was the middle or latter part of June, 1983 when Mark and I got the van and Mark hit them with the night stick, we went to Oregon; and, then, California in the van that belonged to the man and woman.
We used a Master Charge credit card in the name Robert Bravence, that we got from the glove box of the van, to buy gas, clothing, and at restaurants. I signed the receipts when we used the credit card, and some of the time I showed my driver’s license in the name Bryan Stuart Lankford. The driver’s license was in my wallet. I also signed *716the traveler’s checks that we got from the glove box of the van that were in the name Robert Bravence. Some of the traveler’s checks had a woman’s name, so we threw them away. I don’t remember if I threw them away or if Mark did, but we probably threw them away somewhere in San Francisco, California because it was the first big city we went into. I don’t remember the name of any specific gas station, clothing store, or restaurant where we used the credit card or the traveler’s check. But we purchased food, clothing, and gas with these items.
When we got to Los Angeles, California I called Roy Ralmuto in San Antonio, Texas, and told him that Mark and I wanted to come stay with him. He sent us two bus tickets, and we went to San Antonio the last of June or early July, 1983. While I was waiting for the bus tickets Mark took the VW van, and later said he left it on the street with the keys in the can.
I have not talked to anybody about the above activity with the man and woman. I never called the Sheriff or anybody in Idaho to tell them where the man and woman were or that they may need help.
I don’t remember what Mark did with the night stick after he hit the man and woman. He may have left it at the campsite of the man and woman. He may have taken it back to where we had camped earlier. Or he may have thrown it out somewhere between the two camps. I believe we left the long tom shotgun I had at the camp of the man and woman in the VW van when it was abandoned in Los Angeles, California. We probably threw the credit card away.
And in Bryan Lankford’s handwriting: I have furnished. this six page statement free and voluntary. No force, threats, or promises were used to influence me to make the statement. I signed below and have initialed the other five pages. Signed: Bryan Stuart Lankford. It’s witnessed: Dennis L. Ploeger Special Agent FBI, Houston, Texas 10/2/83, and Larry Allen Detective Liberty County Sheriff’s Office 10/2/84.
MR. ALBERS: No further questions. Tr., Vol. 3, pp. 524-32.

The “confession” as I read it is not as inculpatory as to Bryan Lankford’s involvement in the robbery as his trial testimony. As to murders, it is only inculpatory as to the carrying of the shotgun by Bryan Lankford, and portrays Mark Lankford as killing Captain Bravence while he was on his feet pleading to be robbed only, and in turn killing Mrs. Bravence when she knelt to tend to her stricken husband. I do not agree with that statement being characterized as a written confession regarding the killings. A confession is generally defined as a statement acknowledging guilt of the offense charged. See Black’s Law Dictionary, Fifth Ed., p. 269, where is also explained the distinction between a statement and a confession.

III.

A major concern is caused by the majority’s handling of the court’s failure to give defendant’s Requested Instruction No. 4, set out in the opinion at p. 694, n. 4, 747 P.2d at p. 716, n. 4, and for facility of reading repeated here:

DEFENDANT’S REQUESTED INSTRUCTION NO. 4
Answer this question only if you find the defendant, Bryan Lankford, guilty of Murder in the first degree.
Do you find, beyond a reasonable doubt that Bryan Lankford himself killed, attempted to kill, or had any intent to kill either of the victims in this case?

The majority turns aside the challenge on the premise, unspoken, that it is irrelevant. Says the majority, “In Idaho it is the judge and not the jury who makes the determination of whether the death sentence will be imposed.” What the majority necessarily must concede, however, is that this is a close case. The district court did not make that finding, and so, as matters now stand, it has not been made.

The finding which was made, by a district judge fully informed as to Mark Lank-*717ford’s conduct, having by the time of Bryan Lankford’s sentencing presided over both trials,4 was this:

(d) The murders were defined as murder of the first degree by Idaho Code Section 18-4003(d), and the murders were accompanied with the specific intent to cause the deaths of Mr. and Mrs. Bravence. R., p. 348.

That is not by any stretch of the imagination the equivalent of a district court finding which, if the court found from the evidence, could have been couched in this suggested language: Bryan Lankford, although he himself was not the slayer of either of the victims, had the intent that the victims would be killed. Nor is it a finding that Bryan Lankford himself killed either of the victims, or attempted to kill them.

It would seem that there was no valid reason for the trial court’s refusal to give the requested instruction. At the least, the consensus of the jury, who had heard the same evidence, would be, and should be, of great moral support when the court arrived at the moment of awesome responsibility when had to be made the decision between life and death. Moreover, the defendant was placing all the marbles on the line in asking for that instruction. If the defendant was willing that the consensus of the jury might have been a yes answer, the court would have been spared some, if not much, of the agonizing of which District Judge Oliver lamented in State v. Osborn, supra, when he refused to conduct a second sentencing hearing, but instead imposed a life sentence without complying with this Court’s mandate on reversal and remand.

There is no rule or principle which, even under the solicitor general’s scheme for capital sentencing adopted by the legislature, nothing which forbids a district judge from getting advisory verdicts from a jury —much the same as is commonly and properly done in equity cases. And, notwithstanding how this Court has ruled, three to two, the district judges are well aware of other times, pre-Furman and pre-confusion, when the court instructed the jurors on the law and to the jury fell the awesome responsibility of imposing either a death or life sentence. District judges are sworn to uphold the Idaho Constitution, and while not free to disregard a majority opinion from this Court, are free to have and express their own views. If ever before Fur-man and Woodson there was any public or district judge clamor in Idaho to do away with jury sentencing in capital cases, it escaped the attention of anyone I know, and my own as well.

CONCLUSION

The extent of Bryan Lankford’s participation in the actual killing will probably never be known. What is known is that he was a participant in the robbery and carried a shotgun. It can be said, too, that he watched the killings, after which he aided his brother Mark Lankford in removing the bodies. It cannot be said on this record that he is bound by the state of mind of his brother. The Supreme Court of the United States in Tison set the proper guideline for the sentencing of Bryan Lankford.

A critical facet of the individualized determination of culpability is the mental state with which the defendant commits the crime.....A narrow focus on the question of whether or not a given defendant “intended to kill,” however, is a highly unsatisfactory means of definitively distinguishing the most culpable and dangerous of murderers. ... Similarly, we hold that the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result.

As I read again that which Judge Lodge wrote in refusing to further participate in the Windsor and Scroggins cases, and on *718rereading what I had to say in some of the other death penalty cases, it is seen that both Judge Lodge and myself are vindicated in our views on capital sentencing, and particularly culpability and intent.

I cannot believe that Beam absent Scrog-gins would have murdered their helpless victim. Nor can I believe that Fetterly absent Windsor would have murdered their helpless victim. Nor can I believe that Sivak absent Bainbridge would have murdered their helpless victim. Two people conspiring to commit a crime are essentially of the same temperament as a small lynch mob — doing in concert what one would not attempt alone.

In sum, I continue to agree with Justice Huntley that under the Idaho Constitution capital sentencing by a jury is required — a proposition weakly challenged by Justice Bakes and avoided by every other jurist in Idaho, and yet to be addressed by the solicitor general, who obviously favors judge sentencing — having authored the death penalty sentencing provisions adopted by the Idaho Legislature in the aftermath of Furman and Woodson. I entertain no doubt that Bryon Lankford is properly found guilty of felony murder, and that the verdict and judgment should be affirmed. Because the two Lankfords share an equal complicity in the planned robbery which culminated in two senseless murders— where there was obviously more regard for a dog than there was for human life, had the jury been given defendant’s requested Instruction No. 4, or something similarly worded, and had the jury answered in the affirmative, my vote would unhesitatingly be to uphold the imposition of the death penalty. Had the jury been the sentencing authority as it is in 95% of the 50 states, my vote would be to affirm the death sentence, even though there may be here a lower “degree of participation in the crime” (see the rule of Windsor, supra, at 708-709, 747 P.2d at 730-731.) on the part of Bryon Lankford than there was on the part of M. Lankford. If the majority were to atone to Judge Lodge and to the criminal justice system for its Windsor and Scrog-gins opinions which destroyed all vestige of proportionality in capital sentencing cases, I would be more amenable to a majority opinion which did not leave standing in place the ratio decedendi by which the majority left Fetterly to be executed, while sparing Windsor, and left Beam to be executed while sparing the far more culpable Scroggins. Had the trial judge recited firm evidence from which he was able to say not just that “the murders were accompanied with the specific intent to cause the deaths of Mr. and Mrs. Bravence,” but that Bryan Lankford himself was possessed of that specific intent, and were not the Tison case seemingly standing in the way, I could vote to affirm the death penalty, reserving only the proposition that the Idaho Constitution requires that the sentencing function be performed by a jury.

An unfortunate aspect of this case, as in the murders by Sivak and Bainbridge, and as in the murder by Scroggins and Beam, is the separate trials of the two defendants. They were jointly charged, had a joint preliminary hearing, and as I remember it, were named as co-defendants in the initial information filed in district court. The record does not contain an order of severance or a motion for severance, and there appears to be no involvement of any confessions to murder which would require application of the Bruton rule. It would seem to me that here, as in the Sivak-Bainbridge murder, and in the Scroggins-Beam murder, and likewise the Fetterly-Windsor murder, where there were no eye-witnesses other than the defendants, a single jury would not only have been better suited to decipher the truth, but to make the assessment of the “degree of participation in the crime,” and impose the penalty — which would likely be highly proportionate.

. A discussion of Part IV(3) necessarily includes comment on that portion of Part IV(2) where the majority, at p. 703, 747 P.2d at p. 725, upholds what it misreads as aggravating Finding No. 4: "That the defendant’s acts were accompanied by a specific intent to kill.”

. This will be discussed infra in connection with Part 1(e) of the majority opinion, which deals with instructions and particularly the failure to give defendant’s Requested Instruction No. 4.

. Even more strange is the majority's decision to give no consideration to Tison v. Arizona, — U.S.-, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). Its content was discussed by counsel at oral argument and is more applicable than Enmund.

. It is to be kept in mind that sentencing of Bryan Lankford was deferred until after the Mark Lankford trial at which he would testify, pursuant to a grant of immunity.