dissenting.
I.
Constitutionality of the Sentencing Under the Idaho Constitution
Not in Creech,1 not in Sivak,2 and again not in Gibson, has the State presented any argument and authority to refute the considered and substantiated views of Justice Huntley and myself that a defendant convicted of first degree murder in Idaho is possessed of a right guaranteed by the Idaho Constitution to have a jury determine whether he shall live or die. While it is true that Justice Bakes attempted a refutation in his Sivak opinion, it did not meet the documented history which establishes that at the time of the adoption of our Idaho Constitution, and thereafter until the advent of Furman, a jury of a defendant’s peers made the awesome decision. The views of Justice Bakes are always entitled to considerable deference, but in this particular area it seems abundantly clear that the Justice simply has declined to have a head-on confrontation with history. At some point in time it behooves the State to address the issue. At the present time it is apparently content to ride on the coattails of the Court’s Sivak opinion. As I have said before, the High Court’s intervention in the death penalty area of state law, while it may have been needed in some of the southern states, as mentioned just recently in the oral argument of the Attorney General in the Aragon3 case, was not needed in Idaho, the net result being the legislature’s passage of a statutory scheme that did not conform to the Constitution. The legislature, of course, can correct the situation and cure this Court’s inaction. Meanwhile Justice Huntley and I remain unable to join any opinion of the Court's where a jury has not been the sentencer.
II.
Proportionality
Recent cases from the High Court make it abundantly clear that the Court has decided to abandon the field, and has just about completed its evacuation. The State of Louisiana v. Williams is about to play out its last act in a drama extending ten years. Maggio, Warden v. Williams, — U.S. -, 104 S.Ct. 311, 78 L.Ed.2d 43 (1983). With that opinion the High Court erased any requirement of statewide proportionality, which issue of proportionality is about all that remains of the High Court’s prestigious opinions of the seventies in death penalty cases. Proportionality may well be discarded altogether in Pulley v. Harris, review granted in 460 U.S. 1036, 103 S.Ct. 1425, 75 L.Ed.2d 787 (1983), to examine the challenge that “the California Supreme Court in Pulley had wholly failed to compare applicant’s case with other cases to determiné whether his death sen*65tence was disproportionate to the punishment imposed on others.” Maggio v. Williams, — U.S. at-, 104 S.Ct. at 314. But, however the High Court’s opinion in that case may go,4 it should little affect the conducting of the business of this Court in the area of proportionality. The Idaho legislature in directing our automatic review of death penalty sentences, I.C. § 19-2827, amongst other provisions, requires that this “court shall determine ... (3) whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.”
In Sivak it was appropriate for this Court to compare his sentence with that of Bainbridge, his co-defendant who was by some unexplained mishap accorded a separate trial. (The sentences were death to Sivak, life for Bainbridge — both convicted of first degree murder for killing the same woman.) The Court did not do so, however. In Creech it was in order for the Court to compare his sentence with the recent similar cases of Osborn II5 and LePage.6 The Court did not do so. Instead, the Creech Court footnoted a string of citations, some of which were first degree murder convictions, and a good many of which were not. For instance, in State v. Otto, 102 Idaho 250, 629 P.2d 646 (1981), the conviction was of attempted first degree murder. Otto was charged with contracting for a murder, but, mistakenly dealing with a police officer, no murder took place. In State v. Lopez, 100 Idaho 99, 593 P.2d 1003 (1979), the crime of which defendant was convicted was assault with intent to commit murder, and the sentence was five years. The defendant in State v. Garcia, 102 Idaho 378, 630 P.2d 665 (1981), was convicted only of conspiracy to commit murder. It is difficult to accept that the three justices who comprised the Creech majority made the “extensive and thorough review of Idaho murder cases” which it proclaimed in footnote 2, p. 476 of 670 P.2d, and at p. 375 of 105 Idaho.7 More important is the question as to whether the Court is following the mandate of I.C. § 19-2827(c)(3) — which requires the proportionality review to be of the penalties imposed in similar cases. To date, other than the declaration in the Creech footnote, I do not see the Court as demonstrating that it has considered at all those cases where the penalty of life imprisonment was imposed. In Creech, Osborn II, and in Sivak, the dissenting opinions have suggested a considerable number of current first-degree murder cases where the death penalty was not imposed. As has been pointed out, district judges are required to transmit to this Court and to the attorney general copies of their § 19-2515 findings in all first degree murder sentencings whenever the death penalty has been imposed. An obvious shortcoming of the statute, I.C. § 19-2827(a) is the omission to require the transmission of the § 19-2515(d) findings where the death penalty has not been imposed. Any respectable proportionality review has to include findings made in all cases where the sentencing court decides between life and death. Although I have previously brought attention to this shortcoming, and believe that for the most part no one disagrees, the Court has done nothing. Other than for my own attempt at collecting all of such cases, and other than where there have been appeals from first degree murder convictions and imposed life sentences, the Court does not operate with a full deck. The legislature clearly contemplated that *66the Court would rise to its responsibility, as noted by language to that effect contained in § 19-2827(a). Two recent cases where the sentence was not death have been forcibly brought to the attention of the Court by the State’s petition for our review from decisions of the Court of appeals. State v. Wilson, 105 Idaho 679, 672 P.2d 247 (1983); State v. Wilson, 105 Idaho 669, 672 P.2d 237 (1983). Continuing with my own effort at providing the trial bench and the district courts with at least as much knowledge as have I in regard to proportionality, I have appended the trial judge’s § 19-2515 findings in those two cases.
This case is much like that of Bainbridge,8 which was discussed in Sivak. The sentencing judge here observed in his I.C. § 19-2515 findings that “the jury could have, and likely did, find that the defendant aided and abetted in Palmer’s death and, consequently was guilty as a principal pursuant to the provisions of I.C. § 18-402.” R., p. 689. The judge
“found, beyond a reasonable doubt, that:
“(n) That either the defendant, Donald Paradise, or Larry Evans actually killed Kimberly Ann Palmer.
“(o) That the defendant either directly committed the act constituting the premeditated murder of Kimberly Ann Palmer or aided and abetted in its commission.”
R., pp. 695-96.
The sentencing judge reflected upon the defendant’s contrary argument:
“The primary arguments raised by the defendant in opposition to any finding that the killing was accomplished in a manner exhibiting an utter disregard for human life are, first, that the defendant is not guilty, i.e., that he did not kill Kimberly Ann Palmer, and, second, that there is no evidence that the defendant actually killed Miss Palmer.
“The problem with the first of these arguments is that the jury found to the contrary. The second argument is essentially an argument that, even though the defendant has been convicted as a principal in the murder, in order to sentence him to death for such crime, there must be evidence that he actually was the one who directly committed the manual strangulation of Kimberly Ann Palmer.” R., p. 696.
Elaboration is unnecessary. Under any reasonable proportionality review of similar cases, and Bainbridge is one, the death penalty imposed on Gibson is extremely questionable. More flagrant murderers were those in Osborn II and LePage, both of whom were unquestionably the actual murderers. Gibson, on the other hand, according to the trial court, may or may not have been the person out of three possibles who attended to the strangling of the victim, or was but an aider and abettor. Thus, the case is seen to bear enough resemblance to Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), to require some comment. Enmund was the driver of the getaway vehicle in a planned robbery during which two principals killed the victims. There was no showing that Enmund intended the killings, only that he was, as here, a participant in the affair leading to the death of the victim. The court resolved the question in Enmund’s favor.
“[I]t is for us ultimately to judge whether the Eight Amendment permits imposition of the death penalty on one such as Enmund who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed. We have concluded, along with most legislatures and juries, that it does not.
“... The question before us is not the disproportionality of death as a penalty for murder, but rather the validity of capital punishment for Enmund’s own conduct-. The focus must be on his cul*67pability, not on that of those who committed the robbery and shot the victims, for we insist on ‘individualized consideration as a constitutional requirement in imposing the death sentence.’ ”
458 U.S. at 797-98, 102 S.Ct. at 3376-77 (emphasis added).
The court held that since Enmund’s criminal culpability extended only to the robbery, imposition of the death penalty for Enmund’s own culpability was excessive and disproportionate and thus a violation of the eighth amendment. Whether Gibson was in fact an aider or abettor was also an issue, and one upon which the court below found it necessary to give instructions requested by the prosecutor:
“YOU ARE INSTRUCTED that to aid and abet means to knowingly assist, facilitate, promote, encourage, counsel, solicit or invite the commission of a crime.
“YOU ARE INSTRUCTED that all persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense or aid and abet in its commission, are principals in any crime so committed, and as principals are guilty of any crime so committed.”
The majority opinion accurately sets forth damaging testimony which Gibson himself gave, omitting only that Gibson added that he left the room after ascertaining that Palmer was alive, and returned to find “Larry Evans was straddled over her choking her____ I saw Kimberly Palmer choked, she turned blue.” — and admitted making no attempt to stop him because he was afraid to. Gibson’s testimony as to his complicity is extremely damaging, and clearly he was an aider and an abettor, and perhaps solely responsible for the detention of the victim which but for such might have allowed her to escape being murdered.
I do not say that Enmunds requires this Court to automatically set aside the death penalty. But I do say that Edmunds, coupled with the sentencing judge’s findings and remarks, do require discussion and consideration. Does the record sustain this Court, an appellate court, in concluding that Gibson intended that a killing take place, Enmunds, supra, where the sentencing court made no such finding? It is readily apparent from the Findings that the district court believed there was no distinction whatever between finding a defendant guilty as an aider and abettor as against executing an aider and abettor:
“The court has been provided with no authority which holds that the general law applicable to persons convicted as a principal for a criminal offense (Idaho Code Section 18-204) is altered in any manner because the potential penalty involved is death. Thus, it requires no citation of authority to state that the law in Idaho has long been that a person who aids and abets in the commission of a crime is equally guilty as one who directly commits the act; and, of course, is subject to receiving the maximum punishment allowed by law. The crime of Murder In The First Degree can be punished by death. Idaho Code Section 18-4004. Neither that section of the code nor the sentencing provisions of I.C. 19-2515 provides for any different penalty in the event the conviction was had upon the basis that the defendant only aided and abetted in the commission of the crime.
“It must, therefore, be concluded that the legislature intended that a person who aided and abetted in the commission of the crime of Murder In The First Degree could be sentenced to death providing that the circumstances were such that the imposition of the death penalty was warranted pursuant to the provisions of Idaho Code Section 19-2515.” R., p. 699.
Enmunds seems to be to the contrary.
APPENDIX
IN THE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF CANYON
STATE OF IDAHO Plaintiff, DAVID ZYNN WILSON, Defendant.
)
FINDINGS OF THE COURT IN CONSIDERING DEATH PENALTY, UNDER SECTION 19-515 IDAHO CODE
Criminal # 04906
The above-named defendant having been convicted of the criminal offense of First
*68Degree Murder, a felony, Idaho Code Sections 18-4001/18-4003, which under the law authorizes the imposition of the death penalty; and the Court having Ordered a pre-sentence investigation of the defendant and thereafter held a sentencing hearing for the purpose of hearing all relevant evidence and argument of counsel in aggravation and mitigation of the offense;
NOW THEREFORE the Court hereby makes the following findings:
1. CONVICTION. That the defendant while represented by Court-appointed counsel was found guilty of the offense of First Degree Murder, a felony, Idaho Code Sections 18-4001/18-4003, pursuant to a plea of guilty.
2. PRE-SENTENCE REPORT. That a pre-sentence report was prepared by Order of the Court, and a copy delivered to the defendant or his counsel pursuant to Section 19-2515, Idaho Code, and the Idaho Criminal Rules. •
3. SENTENCING HEARING. That a sentencing hearing was held on December 3 and 4, 1981, pursuant to notice to counsel for the defendant; and that at said hearing, in the presence of the defendant, the Court heard relevant evidence in aggravation and mitigation of the offense and arguments of counsel.
4. FACTS AND ARGUMENT FOUND IN MITIGATION.
1) Defendant was not the trigger man and was, in fact, outside the building when the killing occurred.
2) No evidence that David had instructed Kelly to kill any of the victims if anything went wrong.
5. FACTS AND ARGUMENT FOUND IN AGGRAVATION.
1) Not able to cope with pressure and may act out against society again.
2) Background includes extensive use of drugs and/or alcohol.
3) Nothing parents of defendant have done in the past has served as a deterrent.
4) Extensive prior criminal record.
5) Capable of manipulation and remorse is questionable.
6) Moral character is undesirable.
7) Dishonorable discharge from service.
8) Uncooperative while on probation and under supervision in the past.
9) Acknowledged he has been a bad example and does not desire to be a good example even for his own family members.
6. STATUTORY AGGRAVATING CIRCUMSTANCES FOUND UNDER SECTION 19-2515(f), IDAHO CODE
1) The murder was especially heinous, atrocious or cruel, manifesting exceptional depravity.
2) By the murder, or circumstances surrounding its commission, the defendant exhibited utter disregard for human life.
3) The murder was one defined as murder of the first degree by Section 18-4003, Idaho Code, Subsection (d), and it was accompanied with the specific intent to cause the death of a human being.
7. REASONS WHY DEATH PENALTY WAS NOT IMPOSED. Defendant did not pull the trigger and had left the building when gun was fired; no competent evidence that he advised or suggested that Kelly use the gun if anything went wrong; Prosecution recommendation would increase the costs of appeal and lend weight to the defendant’s arguments that the death penalty should not have been imposed.
CONCLUSION
That the death penalty should not be imposed on the defendant for the capital offense of which he was convinced.
Dated this 7th day of December, 1981.
/s/ Edward J. Lodge District Judge
IN THE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF CANYON
STATE OF IDAHO, ) Plaintiff, ) FINDINGS OF THE COURT IN ) CONSIDERING DEATH PENALTY v. ) UNDER SECTION 19-515, ) IDAHO CODE KELLY BRIAN WILSON, ) Defendant. ) Criminal # C-4906
The above-named defendant having been convicted of the criminal offense of First
*69Degree Murder, a felony, Idaho Code Sections 18-4001/18-4003, which under the law authorizes the imposition of the death penalty; and the Court having Ordered a pre-sentence investigation of the defendant and thereafter held a sentencing hearing for the purpose of hearing all relevant evidence and argument of counsel in aggravation and mitigation of the offense;
NOW THEREFOR the Court hereby makes the following findings:
1. CONVICTION. That the defendant while represented by Court-appointed counsel was found guilty of the offense of First Degree Murder, a felony, Idaho Sections 18-4001/18-4003, pursuant to a plea of guilty.
2. PRE-SENTENCE REPORT. That a pre-sentence report was prepared by Order of the Court, and a copy delivered to the defendant or his counsel pursuant to Section 19-2515, Idaho Code, and the Idaho Criminal Rules.
3. SENTENCING HEARING. That a sentencing hearing was held on December 3 and 4, 1981, pursuant to notice to counsel for the defendant; and that at said hearing, in the presence of the defendant, the Court heard relevant evidence in aggravation and mitigation of the offense and arguments of counsel.
4. FACTS AND ARGUMENT FOUND IN MITIGATION.
1) The defendant was 19 years old when the offense was committed.
2) The defendant has no prior record (including no misdemeanors).
3) Defendant comes from a loving family that continues to support Kelly.
4) Defendant expresses remorse and is receptive to punishment.
5) The defendant pled guilty.
6) Prosecuting Attorney recommended against the death penalty.
7) Testimony supports a finding that the crime was out of character for Kelly and would not have happened but for the influence of his older brother and the fact that they had been drinking.
8)The defendant is not likely to commit a similar crime in the future.
5. FACTS AND ARGUMENT FOUND IN AGGRAVATION. The crime fit all the material requirements of First Degree Murder, i.e. — intentional—malicious—deliberate and premeditated — no provocation for the offense.
6. STATUTORY AGGRAVATING CIRCUMSTANCES FOUND UNDER SECTION 19-2512(f), IDAHO CODE.
1) The murder was especially heinous, atrocious or cruel, manifesting exceptional depravity.
2) By the murder, or circumstances surrounding its commission, the defendant exhibited utter disregard for human life.
3) The murder was one defined as murder of the first degree by Section 18-4003, Idaho Code, Subsection (d), and it was accompanied with the specific intent to cause the death of a human being.
7.REASONS WHY DEATH PENALTY WAS NOT IMPOSED. The defendant’s age and the fact that he did not have any prior record of any kind were persuasive in my decision that the crime was out of character for the defendant, and similar conduct would not likely occur in the future. The defendant was intoxicated and under the influence of his brother. Prosecution recommendation would lend weight to the defendant’s arguments on appeal and increase the expense to the county.
CONCLUSION
That the death penalty should not be imposed on the defendant for the capital offense of which he was convicted.
Dated this 7th day of December, 1981.
/s/ Edward J. Lodge District Judge
. State v. Creech, 105 Idaho 463, 670 P.2d 463 (1983).
. State v. Sivak, 105 Idaho 900, 674 P.2d 396 (1983).
.State v. Aragon, Supreme Court No. 14771.
. The California Supreme Court’s opinion is reported at 28 Cal.3d 935, 171 Cal.Rptr. 679, 623 P.2d 240 (1981). It contains no discussion of proportionality in examining the penalty phase.
. State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981).
. State v. LePage, 102 Idaho 387, 630 P.2d 674 (1981).
.Basing its holding on this Creech language, the Sivak majority said as to proportionality:
"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.”
State v. Sivak, 105 Idaho 900, 674 P.2d 396 (1983).
. State v. Bainbridge, Supreme Court No. 14544, scheduled for oral argument January 14, 1984.