concurring in part and dissenting in part.
The statutes require us to compare death sentences in the interest of uniformity. It is not sufficient to hold that the jury’s findings of guilt and of statutory aggravating circumstances are supported by the evidence. It is our duty to make an independent review of each case and to make diligent comparisons.
Most statutory aggravating circumstances are framed in terms of willfulness, deliberation, and hope of tangible benefit. The present offense appears to me to be a crime of passion. No motive appears. It is ironical that the Attorney General, who has often stressed the element of willfulness in some death sentence cases, now argues that the lack of motive in the present case is a circumstance to be considered.
The finding of “torture” is strained in the present case. It is based solely on the presence of antecedent violence. The record is sufficient to support a finding of capital murder, but the finding of torture borders on the speculative. I find little indication of pain inflicted for pain’s sake.
The principal opinion cites State v. Battle, 661 S.W.2d 487 (Mo. banc 1983); State v. Smith, 649 S.W.2d 417 (Mo. banc 1983), and State v. LaRette, 648 S.W.2d 96 (Mo. banc 1983) as examples in deciding that the sentencing in this case was not excessive or disproportionate. Battle and Smith, along with State v. Mercer, 618 S.W.2d 1 (Mo. banc 1981), are easily distinguishable because the intent to kill the victim was clear before the murder took place. In LaRette, the intent of the defendant is less clear. However, it is easier to infer such an intent in LaRette than in the present case. In LaRette, there was no prior relationship between the parties that would explain the defendant’s presence at the scene. In the present case, it is likely that the victim and defendant had gone off together and that an unplanned confrontation took place, even though she had expressed fear of him. She had previously driven off with him despite earlier statements that she feared him.
*25Smith is definitely distinguishable. In that case, the defendant had announced his intention to hurt the victim before the murder. He later admitted the murder, stating that he had wanted the victim to suffer. The murder was particularly brutal since the victim must have been alive and fearful throughout a long struggle. Smith chased the victim two and one-half blocks with an iron bar causing numerous injuries. These include: six head lacerations, multiple skull fractures, and contusions and abrasions of the brain. Indeed, the victim’s skull was caved in.
In LaRette, the injuries similarly appear to be more aggravated than in the present case. There was evidently a struggle— blood was found throughout the apartment. Additionally, there were multiple stab wounds. The victim was stabbed in the lung and in the heart. A third knife wound cut across her throat, nearly decapitating her. The victim was alive throughout the ordeal, could see that she was bleeding, and clearly could anticipate her death. There was evidence of attempted sexual assault. There was also evidence that the defendant had earlier slowly circled the victim’s apartment complex.
In Battle, an eighteen year old and his associate robbed and raped an eighty year old woman. Battle decided the woman had to die because she had seen them. He tried stabbing her with a butcher knife. The knife kept bending, so he stabbed her in the eye. When Battle left, the woman was still alive with the knife still stuck in her eye. She was saying prayers. She died later. The suffering involved is obvious.
Mercer is also distinguishable. There were not multiple wounds in Mercer. The woman was strangled. However, before her death, she was forced into a bedroom in Mercer’s house and was raped by Mercer and some of his friends, in a scene of debauched brutality. She had time to fear for her life. Mercer purposefully planned on killing the victim explaining to a friend that he should have killed an earlier rape victim (at the time of the murder, he was faced with rape charges from the earlier incident).
I do not believe that this case is comparable to others in which the death penalty has been decreed. There are numerous, more aggravated cases in which the jury has decreed life imprisonment.1
I would affirm the judgment of conviction but would remand for resentencing to life imprisonment with a mandatory sentence of fifty years.
. See, e.g., State v. Lawrence, 700 S.W.2d 111 (Mo.App.1985) (Defendant and two others robbed an apartment looking for drugs. In that process, they shot two people to death and wounded another by shooting her four or five times.); State v. Williams, 678 S.W.2d 845 (Mo. App.1984) (victim killed by being beaten with bricks and being run over five times by a car). I will not encumber this opinion with other cases in which the reported opinions do not discuss details available to the Court’s statutory assistant. See § 565.035.6, RSMo Supp.1984.