dissenting.
There is much in the majority opinion in which I can and do concur. However, there is much of the majority opinion with which I am unable to agree. Because of the gravity of the crime and the punishment imposed, my conscience compels me to write separately.
1. The reasonable doubt instruction.
The giving of the reasonable doubt instruction in this case was reversible error for the same reasons I expressed in State v. Rhoades, 121 Idaho 63, 83-84, 822 P.2d 960, 980-81 (1991) (Bistline, J., dissenting), cert. denied, — U.S.—, 113 S.Ct. 962, 122 L.Ed.2d 119 (1993). Therefore, I dissent from the portion of the majority opinion which holds otherwise.
2. The right to be sentenced by a jury.
I continue to adhere to the view that I.C. § 19—2515(f), the statute requiring the district court to impose the sentence in a capital case, violates the defendant’s state constitutional right to a trial by jury. See, e.g., State v. Pizzuto, 119 Idaho 742, 784, 810 P.2d 680, 722 (1991) (Bistline, J., dissenting), cert. denied, — U.S. —, 112 S.Ct. 1268, 117 L.Ed.2d 495 (1992); State v. Charboneau, 116 Idaho 129, 169, 774 P.2d 299, 339 (1989) (Bistline, J., dissenting), cert. denied, 493 U.S. 922, 110 S.Ct. 287, 107 L.Ed.2d 267 (1989) and 493 U.S. 923, 110 S.Ct. 290, 107 L.Ed.2d 270 (1989); State v. Creech, 105 Idaho 362, 375-404, 670 P.2d 463, 476-505 (1983) (Huntley and Bistline, JJ., dissenting), cert. denied, 465 U.S. 1051, 104 S.Ct. 1327, 79 L.Ed.2d 722 (1984); State v. Sivak, 105 Idaho 900, 908-09, 674 P.2d 396, 404-05 (1983) (Bistline, J., dissenting), cert. denied, 468 U.S. 1220, 104 S.Ct. 3591, 82 L.Ed.2d 887 (1984). “It is high time to comply with our Idaho Constitution and put the awesome decision of life or death back in the hands of twelve tried and true jurors.” State v. Rhoades, 120 Idaho 795, 814, 820 P.2d 665, 684 (1991) (Bistline, J., dissenting), cert, denied, — U.S.—, 112 S.Ct. 2970, 119 L.Ed.2d 590 (1992).
3. The right to have mitigating evidence considered at sentencing.
In this section, the majority holds that: 1) the district court did not err in failing to consider as mitigating evidence the fact that the prosecuting attorney offered to recommend a fixed life sentence if Hoffman pleaded guilty and 2) evidence that the victim’s family members do not favor the imposition of the death penalty is not admissible. Therefore, no reversible error was committed. I agree with the result but not the ratio decidendi.
As to the first holding, I believe that it is unnecessary to the Court’s decision. The appellant failed to ask the district court to consider the plea offer as mitigating evidence and, therefore, did not preserve the issue for appeal.
The Court’s second holding is also unnecessary to its decision because the district court in fact considered the family’s view as mitigating evidence. As the state has not cross-appealed in this case, the issue of whether such testimony may be considered in mitigation is not presented.
4. The I. C. § 19-2515(g)(5) aggravating circumstance is unconstitutionally vague.
As I have previously stated, the I.C. § 19-2515(g)(5) aggravating factor (that *650the crime be “especially heinous, atrocious or cruel, manifesting exceptional depravity”) is unconstitutionally vague. See State v. Leavitt, 121 Idaho 4, 11-14, 822 P.2d 523, 530-33 (1991) (Bistline, J., dissenting), cert. denied, — U.S.—, 113 S.Ct. 460, 121 L.Ed.2d 368 (1992). In my view, this aggravating factor is “nothing more than [a] kitchen sink aggravating circumstance[] which enables the state to make every first degree murderer not just a candidate for, but an actual recipient of, the harshest and most final of all criminal penalties.” State v. Charboneau, 116 Idaho at 172, 774 P.2d at 342 (1989) (Bistline, J., dissenting).
However, the Court also found the I.C. § 19-2515(g)(10) aggravating factor to be present, that “the murder was committed against a witness or potential witness in a criminal or civil legal proceeding because of that proceeding.” As the district court found that the I.C. § 19-2515(g)(10) aggravating factor outweighed all the mitigating factors, the use of the unconstitutional I.C. § 19-2515(g)(5) aggravating factor in this case was harmless error.
5. I.C. § 19-2719 violates the Equal Protection Clause of the state constitution.
I believe the forty-two day filing period for petitions for post-conviction relief in capital cases is unconstitutional in that it “does not afford defendants anywhere near adequate time” to identify and frame their arguments. State v. Paz, 118 Idaho 542, 562-63, 798 P.2d 1, 20-21 (1990) (Bistline, J., dissenting), cert. denied, — U.S.—, 111 S.Ct. 2911, 115 L.Ed.2d 1074 (1991); see also State v. Beam, 115 Idaho 208, 222-23, 766 P.2d 678, 692 (1988) (Bistline, J., dissenting), cert. denied 489 U.S. 1073, 109 S.Ct. 1360, 103 L.Ed.2d 827 (1988).
I recognize, as is obvious by the citations above, that many of the issues raised by the appellant have been previously resolved against him by the prior opinions of this Court, albeit over my vociferous objection. Those who would say stare decisis requires that those cases must be followed ignore the fact that “[sjtare decisis is not a confining phenomenon but rather a principle of law. And when the application of that principle will not result in justice, it is evident that the doctrine is not properly applicable.” Smith v. State, 93 Idaho 795, 801, 473 P.2d 937, 943 (1970); see also State v. Card, 121 Idaho 425, 460, 825 P.2d 1081, 1116 (1992) (Bistline, J., dissenting), cert. denied — U.S.—, 113 S.Ct. 321, 121 L.Ed.2d 241 (1992). I fail to perceive how the execution of this man, who was not given a constitutional trial, arises to the level of even-handed administering of justice in Idaho.