dissenting.
This case presents a very difficult dilemma for an appellate court, in that the facts tend to indicate that the defendant committed a horrible crime in a manner which fully entitles him to suffer the death penalty-
However, the trial was conducted in a manner which violates all reasonable concepts of due process and, by permitting the decision to stand, the majority is doing great violence to the procedural protection to which our citizens are entitled, in order to sustain a result in one case.
However costly and inconvenient it might be, I would think it better that we remand this case for a new and proper trial rather than to permit the prostitution of those safeguards of individual liberties which make it possible for this democracy to function.
I join the dissent of Justice Bistline, and in addition I remain of the opinion that the Idaho capital sentencing process is unconstitutional in two respects, both of which could be readily corrected by rather simple legislative amendment:
*134(1) It does not provide for utilization of the jury, which violates both the Idaho and United States constitutions; and
(2) The sentencing proceeding, as conducted by the trial courts with the approval of this court, deprives the accused of the right to cross-examine and confront witnesses at the sentencing hearing and permits the admission of the presentence investigation report and other hearsay evidence.
My reasoning in this regard is set forth in detail in my dissenting opinions in State of Idaho v. Creech, 105 Idaho 463, 670 P.2d 463 (1983), and State of Idaho v. Sivak, 105 Idaho 900, 674 P.2d 396 (1983).
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