concurring and dissenting.
I concur in part V, but dissent from parts II, III and IV of the majority opinion. In my view, Lankford’s fifth amendment rights were violated by the trial court’s reliance at sentencing on Lankford’s testimony at the trial of Lankford’s brother and at the hearing on his brother’s motion for a new trial. The testimony at the brother’s trial was given by Lankford after an immunity agreement had been approved by the trial court. The testimony at the hearing on the brother’s motion for a new trial was given by Lankford after the trial court had accepted an agreement by defense counsel and the prosecutor that Lankford’s testimony would be used only for the purposes of his brother’s motion for new trial. I would hold that under Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988) this violation was not harmless error.
LANKFORD’S IMMUNIZED TESTIMONY AND ITS USE IN SENTENCING.
Lankford and the prosecuting attorney entered into an immunity agreement concerning his testimony at his brother’s trial. The agreement recited that Lankford would refuse to answer questions if he were called to testify, on the ground that he might incriminate himself. The agreement granted Lankford immunity “from prosecution and penalty co-extensive with Idaho Code § 19-1114.” The trial court found that there was “good cause” for the agreement and approved it. At his brother’s trial Lankford testified that his brother killed the Bravences.
After his brother was convicted, Lank-ford was called to testify at a hearing on his brother’s motion for a new trial. His attorney told the trial court in that hearing that on the basis of the fifth amendment she had advised Lankford not to testify. She said that she did not want him testifying on matters to which he had testified previously, because she did not believe that his testimony at his brother’s trial was voluntary, but was coerced. After extended discussion between the trial court and counsel, the trial court accepted the agreement of the prosecuting attorney and Lank-ford’s attorney that Lankford’s testimony at the hearing would be used for purposes of his brother’s motion for new trial and for no other purpose. Lankford then testified about a conversation he had with a newspaper reporter from the Lewiston *284Tribune. He told the reporter that he alone killed the Bravences. He testified at the hearing on his brother’s motion for a new trial that this was a lie and that he had told the reporter he committed the murders because his brother told him to do it.
In sentencing Lankford to death the trial court considered both his testimony at his brother’s trial and his testimony at the hearing on his brother’s motion for a new trial. Under the title “Reasons Why Death Penalty Was Imposed” in the trial court’s findings considering the death penalty, the trial court referred to this testimony and concluded by stating:
Suffice it to say that the defendant has failed to take any responsibility whatsoever for his actions. This court specifically finds that the defendant has no capacity for rehabilitation.
Fifteen lines later the trial court imposed the death penalty.
LANKFORD’S FIFTH AMENDMENT RIGHTS WERE VIOLATED.
It is clear that Lankford would not have testified at his brother’s trial, or at the hearing on his brother’s motion for a new hearing, unless his testimony had been immunized. The use of his testimony by the trial court in sentencing was a violation of his rights under the fifth amendment. Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).
In Kastigar the Supreme Court said:
Immunity from the use of compelled testimony ... prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness.
Id. at 453, 92 S.Ct. at 1661.
In my view, this prohibition was violated when the trial court used Lankford’s testimony in fashioning his sentence.
THE VIOLATION WAS NOT HARMLESS ERROR.
In its original opinion in this case (State v. Lankford, 113 Idaho 688, 747 P.2d 710 (1987)) this Court quoted the portion of the findings of the trial court concerning Lank-ford’s testimony at his brother’s trial and at the hearing on his brother’s motion for new trial and stated:
Although it is true that the district court judge pointed out the conflicting testimony given by Lankford at various times, including the testimony given pursuant to the immunity agreement, there has been no showing that the sentence was based upon the comments quoted above.
Id. at 696, 747 P.2d at 718, n. 7.
In my opinion, it is this comment that caused the United States Supreme Court to vacate the judgment and to remand this case to us for further consideration in light of Satterwhite v. Texas.
In Satterwhite the Supreme Court held: It is important to avoid error in capital sentencing proceedings. Moreover, the evaluation of the consequences of an error in the sentencing phase of a capital case may be more difficult because of the discretion that is given to the sentencer.
The question ... is not whether the legally admitted evidence was sufficient to support the death sentence, which we assume it was, but rather, whether the State has proved “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” (Citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).)
486 U.S. at 258-259, 108 S.Ct. at 1798, 100 L.Ed.2d at 290.
I am unable to say, beyond a reasonable doubt, that Lankford would have been sentenced to death, if his immunized testimony had not been used.
I would reverse and remand for resentencing and direct the trial court not to consider the immunized statements of Lankford.
BISTLINE, J., concurs.