concurring in parts II, III and VI, and dissenting from parts IV, V, and VII.
The majority properly concludes that Sivak’s sentence must be vacated and the case remanded for resentencing. While agreeing with the core of the majority opinion, I have reservations concerning the majority’s reference to the harmless error rule in part III, and also am unable to agree with parts IV, V, and VII.
VICTIM IMPACT STATEMENTS AND HARMLESS ERROR
In part III the majority states that the trial court at sentencing should not have considered the testimony of the deceased victim’s husband as this type of testimony was clearly prohibited by Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), and by State v. Charboneau, 116 Idaho 129, 774 P.2d 299 (1989). The trial court is advised to not consider this evidence on remand, but at the same time the Court notes that consideration of such evidence might be harmless error in light of State v. Paz, 118 Idaho 542, 798 P.2d 1 (1990).
Justice Johnson, here writing for the majority, heretofore registered his disagreement with the application of the harmless error rule to victim impact statements in capital murder eases in State v. Paz:
In State v. Charboneau, 116 Idaho 129, 149, 774 P.2d 299, 319 (1989), in vacating a death sentence, in part because it was a violation of the hearsay rule for the trial court to admit a letter written by the victim’s father, I said:
In a matter as awesome as the decision to impose the death penalty, a strict compliance with the procedures for sentencing is required. Even a well intentioned and conscientious effort by the trial court to avoid considering the hearsay contained in the letter does not suffice. (Emphasis added.)
Paz, 118 Idaho at 563-64, 798 P.2d at 22-23 (Johnson, J.). My dissent in Paz pointed out that “[pjermitting errors in capital cases to be reviewed under the harmless error standard will only accentuate the problem, with lack of guidance for district judges____” 118 Idaho at 562, 798 P.2d at 21. As a generality, the exercise of the harmless error rule must be restrained where it tends to impermissibly erode constitutional rights. As a specific, that rule is wholly inappropriate when applied to victim impact statements. .
VICTIM IMPACT STATEMENT OF THE DECEASED VICTIM’S EMPLOYER
Part IV of the majority opinion holds that the trial court properly considered the impact statement made by the deceased victim’s employer. However, United States Supreme Court precedent requires that the sentencer be precluded from considering such testimony of the deceased victim’s employer. Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). *327Booth held that the introduction of a victim impact statement at the sentencing phase of a capital murder trial violated the Eight Amendment. Booth concerned only statements made by the victim’s family. The logic of Booth applies with equal force to an impact statement made by a victim’s employer as to the impact upon him of the murder of his employee.
The Supreme Court stated that a jury in a capital murder sentencing is “required to focus on the defendant as a ‘uniquely individual human being.’ ” Booth, 482 U.S. at 505, 107 S.Ct. at 2534 (citation omitted).1 The Court went on to explain how a victim impact statement diverted a jury from a proper focus:
The focus of a VIS, however, is not on the defendant, but on the character and reputation of the victim and the effect on his family. These factors may be wholly unrelated to the blameworthiness of a particular defendant. As our cases have shown, the defendant often will not know the victim, and therefore will have no knowledge about the existence or characteristics of the victim’s family. Moreover, defendants rarely select their victims based on whether the murder will have an effect on anyone other than the person murdered. Allowing the jury to rely on a VIS therefore could result in imposing the death sentence because of factors about which the defendant was unaware, and that were irrelevant to the decision to kill. This evidence thus could divert the jury’s attention away from, the defendant’s background and *328record, and the circumstances of the crime.
482 U.S. at 504-05, 107 S.Ct. at 2534 (emphasis supplied).
An employer victim impact statement has the same diverting effect as a family victim impact statement. The focus of the sentencer is diverted from the defendant to the business of the victim’s employer. The employer’s ability to attract employees may be wholly unrelated to the blameworthiness of the defendant. It is improbable that a defendant would be aware of or consider the ensuing detriment to an employer’s business in undertaking criminal activity which results in the murder of a person who happens to be an employee. As the Supreme Court stated in Booth, the use of a victim impact statement “creates an impermissible risk that the capital sentencing decision will be made in an arbitrary manner.” 482 U.S. at 505, 107 S.Ct. at 2534. This is as equally true when the statement is made by a surviving family member as when it is that of an employer.
The Supreme Court in Booth explained its holding:
[In this case] the family members were articulate and persuasive in expressing their grief and the extent of their loss. But in some cases the victim will not leave behind a family, or the family members may be less articulate in describing their feelings even though their sense of loss is equally severe. The fact that the imposition of the death sentence may turn on such distinctions illustrates the danger of allowing juries to consider this information. Certainly the degree to which a family is willing and able to express its grief is irrelevant to the decision whether a defendant, who may merit the death penalty, should live or die.
482 U.S. at 505, 107 S.Ct. at 2534. Likewise, the imposition of the death penalty should not turn on whether the victim leaves behind an employer who is sufficiently interested to testify in behalf of imposing a death sentence.
Booth also points out that the worth of the victim should not be the distinguishing factor in determining whether or not the death sentence should be imposed:
Nor is there any justification for permitting such a decision to turn on the perception that the victim was a sterling member of the community rather than a questionable character. This type of information does not provide a ‘principled way to distinguish [cases] in which the death penalty was imposed, from the many in which it was not.’ Godfrey v. Georgia, 446 U.S. 420, 433, 100 S.Ct. 1759, 1767, 64 L.Ed.2d 398 (1980).
Booth, 482 U.S. at 506, 107 S.Ct. at 2534. It would be similarly unprincipled to base the death sentence decision on the difficulty which the employer may experience in filling the victim’s position. Applying the death sentence in such a manner might mean that the murderer of an unemployed person or a person holding a well-paying, easily filled job would not receive the death sentence while the murderer of a person holding a low-paying, difficult to fill job would receive the death sentence. The harm done to a business is simply not relevant to the awesome decision of death penalty sentencing. Economic loss suffered by an enterprise is insignificant when compared to the factors that are properly considered in the death sentence — the manner in which the life was taken, and the background and criminal record of the defendant.
Booth considered the problem of a defendant trying to rebut the prosecution’s evidence of victim impact.
The prospect of a ‘minitrial’ on the victim’s character is more than simply unappealing; it could well distract the sentencing jury from its constitutionally required task — determining whether the death penalty is appropriate in light of the background and record of the accused and the particular circumstances of the crime.
482 U.S. at 507, 107 S.Ct. at 2535. A “minitrial” to consider the views of the employer likewise only serves to divert the sentencer from its proper task, for which reason it should be no part of the sentencing phase in a capital murder trial.
*329TESTIMONY FROM PREVIOUS HEARINGS
In part V of its opinion the majority rules that the trial court at resentencing properly considered the evidence presented in pri- or sentencing hearings in resentencing Sivak. The majority mischaracterizes Sivak’s challenge to be that the trial court should not have considered evidence presented in prior sentencing hearings. Sivak does not insist that this evidence may not be considered, but, to the contrary, asserts only that such evidence should be freshly presented, rather than having the trial court base its sentencing decision on evidence which it does not hear and which was presented some seven years previously-
Sivak points us to three Arizona Supreme Court cases which support this proposition. In State v. Arnett, 125 Ariz. 201, 608 P.2d 778 (1980), the district court on resentencing had relied upon the evidence adduced at prior hearings. Because the defendant did not raise the issue the Court considered the matter waived. Nonetheless, the Court went on to state that:
We do not believe, however, that this is the better practice. When defendant is to be resentenced, and particularly when the death sentence is possible, it would seem that the evidence and testimony should be as fresh as possible. Relying on a hearing conducted months before the imposition of the death penalty is not recommended.
608 P.2d at 780. That court in two other cases found error in resentencing where evidence adduced at prior hearings was utilized, but concluded that the error was harmless as to both. State v. Bishop, 127 Ariz. 531, 622 P.2d 478, 480 (1980) (error harmless because defendant subsequently was able to have the issue of aggravating circumstances presented and reviewed by the trial court); State v. Smith, 141 Ariz. 510, 687 P.2d 1265, 1266 (1984) (error harmless because defendant admitted to the aggravating circumstance at the resentencing hearing).
Due process of the law guaranteed by the fourteenth amendment requires death penalty sentencing to subsist of more than a rote rereading of the testimony from a prior, constitutionally defective sentencing hearing. Rather than adding to the problem of the sentencing court being unduly influenced by the record of a prior defective sentencing hearing, it is better policy to require the court to conduct a truly new sentencing hearing with the evidence being presented live in court.
THE OTHER ISSUES RAISED BY SIVAK NOT CONSIDERED BY MAJORITY
In part VII of its opinion the majority states that all the other issues raised by Sivak were previously resolved in State v. Sivak, 105 Idaho 900, 674 P.2d 396 (1983) (Sivak I), and State v. Sivak, 112 Idaho 197, 731 P.2d 192 (1986) (Sivak II), and that the remand in Sivak II was only for the purpose of resentencing, not to allow Sivak to again challenge his conviction. Sivak raised eleven issues on the present appeal. The majority addressed but four of them. Two of the remaining issues involved errors made at trial rather than during sentencing; hence the majority properly declined to address them. Of the five remaining sentencing issues, only two were addressed in Sivak I or II (right to trial by jury on factual issues governing eligibility for death sentence, and the trial court’s consideration and reliance in sentencing on an unsworn, extrajudicial statement by Bainbridge, Sivak’s codefendant). Three sentencing issues thus raised by the defendant have therefore gone unaddressed. Another sentencing issue which involved Bainbridge’s statement should be reconsidered in light of our recent decision in State v. Charboneau, 116 Idaho 129, 774 P.2d 299 (1989). When the stakes are high, this Court would better fulfill its function by disposing of each and every issue properly raised by the defendant. Moreover, we not only owe that obligation to the instant parties, but to the federal courts who in turn will be called upon to review this Court’s handiwork.
*330THE CODEFENDANT’S OUT OF COURT STATEMENTS
Though the issue of the codefendant’s extrajudicial statement was indirectly addressed in Sivak I, 105 Idaho at 906, 674 P.2d at 402,2 we should reconsider the decision that the trial court did not err in considering and utilizing that statement in light of our more recent and more enlightened decision in Charboneau.
In sentencing Sivak to execution, the district judge specifically found and primarily relied upon the “fact” that “[t]he defendant dominates the co-defendant, and is primarily responsible for all that occurred.” Sivak I, 105 Idaho at 906, 674 P.2d at 402. On direct appeal Sivak argued that this finding was unsupported by the evidence. This Court ruled otherwise by declaring that the finding was supported by an in-depth interview with Sivak’s accomplice Bainbridge, which interview was included in the presentence report. 105 Idaho at 906, 674 P.2d at 402. This interview was conducted by a deputy county prosecutor on April 9, 1981, five months before trial, and without Sivak’s presence, either in person or by counsel. Bainbridge did not testify at Sivak’s trial and was not subjected to cross-examination. Brief of App. 22-23.
In Charboneau this Court considered the validity of the sentencing court’s receiving in evidence a letter from the victim’s father. The letter was offered during the father’s live testimony at the hearing, and admitted over objection. 116 Idaho at 136, 774 P.2d at 306. This Court’s opinion noted that the presentation of sentencing evidence by live testimony had been demanded pursuant to I.C. § 19-2516, and also observed that the father’s testimony in court, fully subject to cross-examination, “did not cure the hearsay nature of the statements [in the letter].” 116 Idaho at 148, 774 P.2d at 318. The Court further noted that in State v. Creech, 105 Idaho 362, 670 P.2d 463 (1983), it had recognized that I.C. § 19-2515(d) provided an exception to I.C. § 19-2516 as to the presentence report. Charboneau also noted that I.C.R. 32(e)(1) provides for the inclusion of hearsay in the presentence report, “but only that which the presentence investigator believes is reliable.” 116 Idaho at 149, 774 P.2d at 319. Since the letter at issue was not included in the presentence report the Court concluded that its admission was error. Thus in Charboneau the Court found reversible error in admitting the writing of a witness who was available for cross-examination, even though the writing was similar to the live testimony given by the witness, and notwithstanding that the district judge expressly denied relying on the letter in arriving at the sentencing decision. 116 Idaho at 148-49, 774 P.2d at 318-19.
By comparison, the codefendant Bainbridge’s implication of Sivak was far more unreliable, was not supported by the live testimony of its maker or by any other evidence, but nevertheless played a huge role in Judge Newhouse’s decision to sen*331tence Sivak to death. Bainbridge’s statement had been obtained under questionable circumstances shortly after he was arrested and in custody when he was first confronted with the full impact of the state’s accusation that he was guilty of murder. Few aspects of the criminal law are more familiar than the phenomenon of co-defendants who implicate each other. Unlike the victim’s father in Charboneau, Bainbridge had every reason to lie. Unlike the letter in Charboneau, as to which the district court disavowed placing any reliance, Judge Newhouse expressly relied on the Bainbridge statement, as did this Court on direct appeal. Sivak I, 105 Idaho at 906, 674 P.2d at 402.
Even though Bainbridge’s out of court statements were far less reliable and far more impacting than the father’s letter in Charboneau, the majority in Sivak declined to rule on the district court error in considering and relying on Bainbridge’s statements, or to even address this important issue. That state of obduration continues to this very day.
It could be argued that because the transcript of Bainbridge’s statements was stapled at the end of the presentence report, under State v. Creech, 105 Idaho 362, 670 P.2d 463, this hearsay was properly considered and relied on by the district judge in sentencing Sivak to death. Such a conclusion, however, would be misguided. In Charboneau I expressed a view that:
I remain convinced that the mandate of the legislature expressed in I.C. § 19-2516 and that of the founding fathers expressed in the due process clauses of the state and federal constitutions prohibit the admission of presentence investigation reports obtained by hearsay and containing hearsay.
116 Idaho at 170, 774 P.2d at 340. In Sivak I my earlier views were no different:
The Court simply cannot in any show of conscience continue to let capital sentencing be hinged on unsworn statements and other forms of hearsay. It is now clear that a capital case involves two trials. The first is to try the issue of the accused’s guilt. If convicted, the second is to try the issue of the circumstances of his crime and the facets of his character. Common sense dictates that the second trial for his life is the defendant’s more important trial. Can it be then that in Idaho we have a rule that while due process obtains at the guilt trial, anything goes at the second trial which determines the issue of life and death?
105 Idaho at 920, 674 P.2d at 416.
The district court’s error in considering and relying on the codefendant’s unsworn, out of court statements violated Sivak’s right to due process of the law. That violation continues on apparently in perpetuity.
HEINOUS, ATROCIOUS OR CRUEL
The district judge sentenced Sivak to death on the basis of his finding that the murder was especially heinous, atrocious or cruel, manifesting exceptional depravity. R. Vol. 4, 168. Sivak makes the argument, which the majority declines to address, that Idaho’s application of its “heinous, atrocious or cruel” aggravating circumstance violates the eighth amendment.
The United States Supreme Court has held that statutory aggravating circumstances must be given a limiting construction if the state is to meet its obligation to “tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty.” Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 1764, 64 L.Ed.2d 398 (1980). This Court appeared to be attempting to limit its I.C. § 19-2515(g)(5) “heinous, atrocious and cruel” aggravating circumstance with the following construction:
It is our interpretation that heinous means extremely wicked or shockingly evil; that atrocious means outrageously wicked and vile; and that cruel means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others. What is intended to be included are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of *332capital felonies — the conscienceless or pitiless crime which is unnecessarily torturous to the victim.
State v. Osborn, 102 Idaho 405, 418, 631 P.2d 187, 200 (1981) (emphasis in the original).
My dissent in State v. Charboneau, 116 Idaho 129, 774 P.2d 299 (1989), criticized this construction:
The limiting construction given to the (g)(5) aggravating circumstance by Osborn and reaffirmed today by the majority, is wholly insufficient to guide the sentencer’s discretion in limiting the application of the death penalty consistent with constitutional mandates. Terms beget terms. What is the “norm” of capital felonies? Who sets this “norm”? Indeed, all first degree murders involve the unlawful killing of another with malice aforethought. What sets this particular murder apart — not from the other crimes — but from the “norm” of first degree murder? In a domestic dispute husband kills wife with a gun. Do all such murders now warrant execution? If so, it can hardly be said discretion is limited.
Also, the Osborn “limiting” definition of the (g)(5) circumstance provides that the murder must be “unnecessarily torturous to the victim.” Clearly, however, this definition is simply duplicative of the (g)(7) circumstance which subjects defendants to death for murder by torture. In the final analysis, all first degree murders are “especially heinous, atrocious or cruel, manifesting exceptional depravity.” Nothing in the majority’s interpretation restricts the broad brush with which the subsection is drawn.
116 Idaho at 171-72, 774 P.2d at 341-42.
Sivak further argues that the district judge should not have made a finding of cruelty when the trial testimony showed that the victim was not conscious when the alleged cruel acts took place. Tr. Vol. III, 318-33, 359, Vol. II, 257, Record of Appeal, Sivak I, 105 Idaho 900, 674 P.2d 396. The Arizona Supreme Court has held that the state has an affirmative burden to demonstrate victim consciousness as a predicate to a finding of cruelty. As the Ninth Circuit noted in Adamson v. Ricketts, 865 F.2d 1011 (9th Cir.1988), “in nearly every case in which a finding of cruelty was reversed, the court concluded only that the prosecution had not proven the victim was conscious.” 865 F.2d at 1033 (citing Arizona Supreme Court cases). Idaho should similarly require a showing of victim consciousness as a predicate to a finding of cruelty.
CRIME WHILE IMPRISONED
During Sivak’s sentencing hearing a corrections officer testified that Sivak hid a weapon in his prison cell. Sivak argues that the district judge should not have considered this testimony in sentencing him because the alleged crime of possessing a weapon had not been the subject of a formal prosecution and finding of guilt beyond a reasonable doubt. Sivak cites Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) for the principle that there are limits on the evidence that can be offered to show aggravating factors against a capital defendant:
We think the Georgia court wisely has chosen not to impose unnecessary restrictions on the evidence that can be offered at such a hearing and to approve open and far-ranging argument____ So long as the evidence introduced and the arguments made at the presentence hearing do not prejudice a defendant, it is preferable not to impose restrictions.
428 U.S. at 203-04, 96 S.Ct. at 2939-40. Sivak argues that evidence of unadjudicated criminal conduct contravenes this requirement found in Gregg.
Although this argument certainly merits some consideration, the majority has declined to give it any. Sivak presents a tenable argument that the issue is better resolved in reference to Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). That case held that a sentencing judge has wide discretion in selecting “the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law.” 337 U.S. at 246, 69 *333S.Ct. at 1082. A sentencing judge is not limited to considering as aggravating factors only those acts for which the defendant has been convicted.
. Booth, involved a Maryland case in which the death penalty sentencing was done by a jury. In State v. Charboneau, 116 Idaho 129, 150, 774 P.2d 299, 320 (1989), this Court held that Booth applied to Idaho death penalty cases even though sentencing is by a judge rather than a jury. Justice Johnson sees the Idaho rule of stare decisis as compelling the Court to abide by its language in Sivak II, 112 Idaho 197, 731 P.2d 192 (1986). That view is justified. But when Booth arrived on the scene in 1987, a year after Sivak II, it occurs to me that Booth, based on provisions of the Constitution of the United States, preempts the field and nullifies Sivak II
The High Court’s Booth opinion was indeed welcome. The High Court in 1987 ruled out the use of victim impact statements. This was four years after this one member of the Idaho Supreme Court "ruled” against them, with as much effect as the whispering wind. Accordingly, it was with both relief and gratification that I welcomed Booth. Somehow the High Court had a much easier time in gaining the attention of some members of the Court, as constituted at that time, than my efforts had produced. Only Justice Huntley took notice of what I had written.
Today's opinion for the Court has produced the motivation to revisit Sivak II, which in turn resulted in turning again to Sivak I. At Sivak I, 105 Idaho 900, 674 P.2d 396, appears the following passage:
I am also greatly troubled by some of the testimony that was offered and accepted at the ’live’ portion of Sivak’s sentencing hearing. In particular, there was little reason or justification for the prosecutor to put on the stand a Mr. Frank Sattler. His testimony, in my view, transgresses beyond that which a sentencing jury, or judge, should hear — having nothing to do with the circumstances of the crime of the character of the defendant. Sivak I, 105 Idaho at 918, 674 P.2d at 414 (emphasis supplied, and with justifiable pride). Mr. Sattler, the victim’s employer, was questioned by the prosecutor in open court:
Q: Mr. Sattler, if you were in a position to pass down a sentence in this case, what would that sentence be?
A: My personal opinion?
Q: Yes.
A: I’d hang him.
MR. HARRIS: That’s all I have Judge. Sivak I, 105 Idaho at 919, n. 6, 674 P.2d at 415.
The victim’s husband was likewise called to the stand by the prosecutor to describe the effect the murder had on the family, the father and three children ages 12, 13, and 19. My further comments are there, in 105 Idaho at 908-21, 674 P.2d at 404-17. Sivak II followed Sivak I by three years. Justice Huntley was again the only support for my views. Of the three who were not interested, not one wrote a single word attempting to challenge or explain away the views of Justice Huntley and myself.
Because of the Court’s obduracy, it continued ruling against Sivak’s contentions, consistently. The result could not help but have had a devastating impact on Sivak. It is true that he was involved in the homicide as also was Randall Bainbridge, but, to my mind, it may come within the scope of cruel and inhuman punishment to incarcerate any person for almost ten years while all the time suspended over his head is the sword of Democoles waiting to execute him. The point I make is that this Court’s pattern of erring in Sivak’s appeal continues to prolong the agony. When Sivak eventually gets a final decision from this Court, one which is free from error, and therefore final, then follows his habeas corpus route through the federal courts, it is reasonable to believe that if Sivak one day is executed, he very well may have by that time served fifteen years on death row.
. In Sivak I the opinion for the Court did not directly discuss whether it was proper for the trial judge to consider or rely on the co-defendant’s statement. It discussed only the issue of whether the trial judge’s findings were supported by the evidence. The relevant portion of Sivak I follows:
Appellant [Sivak] cites two of the trial court's findings and argues that they are not supported by the evidence. The allegedly objectionable findings are:
5....
a. ... The defendant dominates his co-defendant, and is primarily responsible for all that occurred.
6....
d. The defendant, both by prior conduct and conduct in the commission of the murder at hand, has exhibited a propensity to commit murder which will probably constitute a continuing threat to society.
The evidence before the trial court was more than sufficient to sustain both of these findings. An in-depth interview of appellant's accomplice was conducted, and was included in the presentence report. It contains references to the relationship between the two, lending support to finding 5a. Finding 6d is supported by evidence of the brutal murder committed by this defendant, by his lack of remorse, willingness to participate in the crime, and by testimony of his prior offer to do violence to and, inferentially, to kill another person other than Dixie Wilson. Because these findings are supported by the evidence, we will not disturb them.
105 Idaho at 906, 674 P.2d at 402. This Court’s disposition was much too summary.