State v. Leavitt

JOHNSON, Justice,

concurring specially.

I concur with the opinion of Justice Shepard and write only to point out that the trial court appears to have weighed the mitigating circumstances against two aggravating circumstances, collectively instead of separately, contrary to our holding in State v. Charboneau, 116 Idaho 129, 774 P.2d 299 (1989).

In its “Pronouncement of Sentence” the trial court found that the murder was “especially heinous, atrocious or cruel, manifesting exceptional depravity” and that Leavitt “exhibited utter disregard for human life.” These are two of the aggravating circumstances listed in I.C. § 19-2515(g). In pronouncing the sentence *295of death on Leavitt, the trial court stated: “The laws of the sovereign State of Idaho give clear direction to the Court that unless the mitigating circumstances outweigh the gravity of the aggravating circumstances, the defendant shall be sentenced to death.” (Emphasis added.)

In Charboneau we held that “the trial court may sentence the defendant to death, only if the trial court finds that all the mitigating circumstances do not outweigh the gravity of each of the aggravating circumstances found and make imposition of death unjust.” 116 Idaho at 153, 774 P.2d at 323. On remand, the trial court should weigh all the mitigating circumstances against each of the aggravating circumstances found, separately, rather than weighing all the mitigating circumstances against all aggravating circumstances found, collectively.