dissenting.
I respectfully dissent.
The principal opinion incorrectly focuses on whether the judge or a jury should have imposed the punishment. Assuming, ar-guendo, that appellant had a right to a jury determination at his punishment stage, appellant clearly waived any such right. The court asked appellant repeatedly whether he wanted a jury to decide the issue of punishment. Appellant, apparently against the advice of counsel and after strong indications by the judge that he might impose the death penalty, voluntarily choose to have the court decide the issue of punishment. Appellant has not preserved any challenge to the trial court’s having determined punishment. In appellant’s many assignments of error urged to this Court, he nowhere contends that he did not voluntarily waive any possible right to a jury determination of punishment. Instead, at issue in this case should be whether appellant’s death sentence is disporportionate. I believe that his sentence is disproportionate, and I would affirm the conviction but order the case remanded with directions to resentence appellant to life imprisonment without the possibility of probation or parole for 50 years as provided in § 565.008, RSMo 1978 (repealed).
Curtis Cutts and Melissa Wagner lived across the street from appellant, a 23 year-old man. Cutts, a former truck driver, quit his job after becoming dissatisfied with how his employer had reimbursed him for certain services and expenses. In retaliation against his former employer, Cutts recruited appellant and Wagner, his girlfriend, into a scheme to hijack one of his ex-employer’s trucks, tie up the driver, and sell the truck cargo to a salvage yard.
The first three attempts of the group ended in failure. During the first attempt, on October 19, 1983, the three managed to capture a truck and tie up and leave the driver by the side of the road. The truck, however, broke down and was abandoned. Their second and third attempts were equally unsuccessful.
Then, at dusk on November 23, 1983, Cutts, Wagner and appellant located a truck driven by Kenneth Wood. They were unable to stop the vehicle by throwing paint filled jars at the windshield of the truck. Next, appellant tried without success to shoot out the truck tires with a gun that he had obtained for that purpose. Cutts took the weapon from appellant and, while driving the car, managed to shoot out one of the tires. As the two vehicles continued north on Interstate 55 in Cape Girar-deau County, Cutts blinked the car lights and the truck pulled over onto the shoulder. Cutts stopped the car directly behind the truck, and then with appellant’s help pretended to assist Wood in changing the flat tire. Cutts left appellant standing alone behind Wood.
Appellant testified at his plea hearing that when Wood squatted to fix the flat tire, appellant suddenly became afraid that the victim would attack him. Appellant stated that he shot the victim once in the back of the head and thought he had killed the victim. Appellant testified that after the shot Cutts came and helped appellant drag the victim off the side of the road. After dragging the victim into the area beside the road and then returning to the highway shoulder, Cutts told appellant to go back to the body and take any money from the victim’s wallet. When appellant returned alone to the body, the victim moved and started to breathe “real hard.” Appellant claims that he became excited *468when the body moved, because he thought Wood was dead. He fired at the victim again. Appellant said that afterward he ran to the car, put the 9 millimeter gun on the back seat, and then jumped in the truck. Cutts drove the truck, leaving Wagner alone with the gun, the car, and the victim.
On December 1, 1984, appellant turned himself in to the authorities. He confessed to shooting the victim and participating in the hijacking. After confessing to agents of the Federal Bureau of Investigation, he repeatedly confessed to the Cape Girardeau police.
Ignoring the advice of counsel, but following discussions with his family and a priest, appellant pled guilty. When he tendered his plea, appellant admitted that he committed the crime. He told the court he put his fate in God’s hands and would not lie. Appellant had not entered into any plea agreement with the prosecutor. Appellant stated that he wanted to make his peace with God and apologized to the victim’s family.
The trial judge conducted appellant’s sentencing hearing on April 12 and April 14 of 1984. A succession of police officers and prison guards testified for appellant. Joseph Fink, Special Agent for the Federal Bureau of Investigation, testified that appellant turned himself in, voluntarily answered questions, was remorseful, and later helped find the murder weapon. Robert Hull, a City of Jackson police officer, and Robert Clifton, the Chief of Police for the City of Jackson, testified that appellant was always respectful and frequently participated in religious activities. Sergeant Larry Wade of the Jackson Police Department testified that appellant seemed remorseful and sorrowful. Sergeant Wade stated that appellant’s Pentecostal faith forbids lying and requires confessing one’s sins before being allowed into heaven. Lieutenant John Brown, an eight year veteran on the Cape Girardeau police force, declared that when he received appellant’s statement appellant was remorseful and in tears. Appellant provided the Lieutenant with several additions to his confession.
Dr. John Skaggs, Director of Psychological Testing at St. Francis Mental Health Center, testified for appellant. Dr. Skaggs examined appellant at the request of the trial court and diagnosed appellant as suffering from cyclothymic and dependent personality disorders. Dr. Skaggs observed that a person like appellant acts on impulse and when such people are without guidance they become panicky and act on emotion alone. Dr. Skaggs testified that when appellant was standing alone behind Wood, appellant could have suffered from an irrational bout of fear. Further, Dr. Skaggs declared that appellant could have been more panicked while alone in the woods with the victim’s body than while standing behind the victim alongside the highway.
Dr. Maria Lyskowski, a staff psychiatrist at St. Francis Mental Health Center, also examined appellant at the request of the court. She testified that while she would use different terminology, her findings were identical to those of Dr. Skaggs. Dr. Lyskowski explained that appellant suffered from multiple learning disabilities and dyslexia and was illiterate with an IQ of 75. She added that appellant had a passive personality disorder with extreme dependence on others and was impulsive and prone to panic. Dr. Lyskowski also had examined Cutts and found him to have an aggressive personality, and it was her opinion that Cutts dominated appellant.
Dr. Lyskowski testified that when appellant fired the first shot he was under “extreme duress.” According to Dr. Lyskow-ski, when appellant fired the later shots he was extremely disturbed and acted out of fear, anxiety, and panic. Dr. Lyskowski stated that appellant’s ability to-conform his conduct to the law was substantially impaired when he committed the murder. The report submitted to the trial judge by the Missouri Board of Probation and Parole also suggested that appellant did not anticipate the commission of a homicide but acted under the “heat of the situation.”
*469The State called Melissa Wagner to testify at appellant’s punishment hearing. Wagner stated that she had pled guilty to murder in the first degree as part of a plea bargain, but that she had not yet been sentenced. State and Federal authorities had agreed not to file any other charges against Wagner if she testified against Cutts and appellant. Wagner asserted that appellant initially left the car without the gun but later returned to the car for the pistol. Wagner said appellant stood alone behind Wood, by the truck, and shot the victim twice. She testified that she only saw appellant drag the body off the shoulder of the road. After seeing appellant drag the body into the forest, Wagner said that she heard three more shots. Wagner further testified that appellant came out of the woods and threw the gun into the car, appellant exclaimed that he had killed the victim because Wood had heard appellant call Cutts by his true name and could identify them. Wagner said Cutts and appellant drove the truck and she met them later.
During cross-examination, Wagner admitted that she loved and continues to love Cutts and that he fathered her child. She said she didn’t see Cutts anywhere near appellant when he shot the victim and dragged the body away from the road. She admitted that Cutts was in command, giving orders, planning the hijacking attempts, and paying for their supplies. Wagner admitted that she testified seeking gain and to avoid spending the rest of her life in prison.
The story Wagner told at appellant’s sentencing hearing differs from her earlier accounts. At appellant’s punishment hearing, Wagner said that after appellant shot the victim, he stated that he killed Wood because Wood could identify them. But on January 16, 1984, in a statement made to police, Wagner said that appellant told her before Wood was shot that Cutts and appellant were going to kill Wood because Wood could identify them.
Wagner also testified at appellant’s punishment hearing that appellant returned to the car for the 9 millimeter pistol used to kill the victim. However, in her December 2, 1983 statement to police and in her own plea hearing testimony, Wagner never mentioned appellant returning to the car for the pistol. Also at her plea hearing, Wagner admitted “I forget things every once in a while.”
Finally, at appellant’s punishment hearing, Wagner said she never saw Cutts help appellant drag the body away from the road. Cutts himself has admitted to police that he helped appellant carry the victim away from the road.
After reviewing the evidence, the trial judge found the following statutory aggravating circumstances: (1) that appellant “committed the offense of capital murder for himself and others for the purpose of receiving money or any other thing of monetary value;” (2) that appellant committed the offense of capital murder for the purpose of preventing the victim “from testifying in any judicial proceeding.”
The trial judge also found the following mitigating circumstances: (1) appellant was 23 years old at the time of the crime; (2) appellant had an IQ of 75; (3) appellant had a learning disability; (4) appellant is a personable, polite young man; (5) appellant is deeply religious; (6) appellant is now remorseful; (7) appellant voluntarily turned himself in and assisted the authorities by giving information against Curtis Cutts and Melissa Wagner; (8) appellant pled guilty.
The trial court imposed the death sentence.
In death penalty cases, the legislature of Missouri has given this Court a special duty to review, scrutinize, and possibly change the sentence of death. § 565.014, RSMo 1978 (now repealed). Our duties under this statutory provision go far beyond those of a reviewing court in other criminal cases.
2. The supreme court of Missouri shall consider the punishment as well as any errors enumerated by way of appeal.
*4703. With regard to the sentence, the supreme court shall determine:
(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; and
(2) Whether the evidence supports the jury’s or judge’s finding of a statutory aggravating circumstance as enumerated in section 565.012; and
(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
§ 565.014, RSMo 1978.
Appellant maintains, inter alia, that his death sentence is disproportionate to the sentence given in similar cases. In this context, the Court must consider whether the sentence imposed is excessive or disproportionate to the penalty assessed in similar cases, considering both the crime and the defendant. § 565.014.3(3), RSMo 1978. This Court must examine all those capital murder convictions except those where the State waived the death penalty. The majority of cases where the death penalty has been imposed involve a murder for hire,1 a multiple killing,2 a vile torturous killing,3 or a carefully planned killing.4 These elements, however, are not present in the case at bar. Rather, this case involves a murder committed during the course of a robbery. Prior cases where this Court has affirmed the death penalty, when the murder was committed during a robbery, involve crimes where the murder was either contemplated or expected by the defendant.5 In State v. Johns, 679 S.W.2d 253 (Mo. banc 1984), the defendant killed a 17 year-old gas station attendant during a robbery after bragging before committing the crime that he “never left any witnesses.” I question whether appellant’s offense is as preplanned and *471premeditated as that of Johns or the offenders in previous cases.
The present case differs significantly from those cases where the Court has sustained the death sentence, but is similar to the situation this Court faced in State v. McIlvoy, 629 S.W.2d 333 (Mo. banc 1982). In McIlvoy, this Court reduced a death sentence to life imprisonment. Substantially all of the material facts and important characteristics of the defendant in the Mcllvoy case are present here.
As in Mcllvoy, appellant was neither a leader nor an instigator of his crime. Both in Mcllvoy and in this case, the co-conspirators, as part of a plea bargain, were given life sentences. More importantly, in Mcll-voy, there was some evidence of a killing for hire, there was some evidence of a prior rehearsal of the killing, and a jury found that Mcllvoy’s crime was “wantonly vile, horrible or inhuman in that it involved torture or depravity of mind.” Again, unlike Mcllvoy and all of our other previous death penalty cases, appellant here pled guilty.
This Court’s proportionality analysis requires including those similar capital murder convictions where the defendant received a sentence of life imprisonment. State v. Bolder, 635 S.W.2d 673 (Mo. banc 1982). Comparison of similar life sentence crimes becomes difficult because in most instances the crimes in those cases were much more aggravated than that of the instant case.6 I believe that State v. Jensen is comparable to the present case and indicates that appellant’s death sentence here is disproportionate. Jensen involved a young man who shot his supervisor when she discovered him stealing. Jensen turned himself in, voluntarily confessed, and was emotionally distressed when he shot his supervisor.
I have an even more basic concern about this and similar cases. The Eighth Amendment forbids the imposition of a death sentence when this penalty would be disproportionate to the punishment given for other similar crimes. Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910). *472The Legislature of Missouri has specifically ordered this Court to review death sentences imposed by Missouri courts and determine if the sentence is proportionate. § 565.014, RSMo 1978.
When we permit one person to plea bargain for his or her life in return for testimony that will insure another person’s death, we have rendered proportionality meaningless. This Court should not permit one individual, the prosecutor, to determine who shall live and who shall die. Proportionality cannot mean less than giving the defendant no greater punishment than that approved by the judicial system for the co-defendant who has plea bargained to save his life.
The question in this case should not be whether appellant voluntarily waived a right to a jury determination for punishment or whether appellant committed the crime and should be punished, but rather what level of punishment is appropriate. Because of the specific and special facts of this case, I would hold that a death sentence in this case is disproportionate.
. See State v. Bannister, 680 S.W.2d 141 (Mo. banc 1984); State v. Blair, 638 S.W.2d 739 (Mo. banc 1982).
. See State v. Byrd, 676 S.W.2d 494 (Mo. banc 1984); State v. Preston, 673 S.W.2d 1 (Mo. banc 1984); State v. Laws, 661 S.W.2d 526 (Mo. banc 1983); State v. Baskerville, 616 S.W.2d 839 (Mo. 1981).
. See State v. Gilmore, 681 S.W.2d 934 (Mo. banc 1984); State v. Battle, 661 S.W.2d 487 (Mo. banc 1983); State v. Smith, 649 S.W.2d 417 (Mo. banc 1983); State v. Trimble, 638 S.W.2d 726 (Mo. banc 1982); State v. Stokes, 638 S.W.2d 715 (Mo. banc 1982).
. See State v. Gilmore, 681 S.W.2d 934 (Mo. banc 1984); State v. Bannister, 680 S.W.2d 141 (Mo. banc 1984); State v. Byrd, 676 S.W.2d 494 (Mo. banc 1984); State v. Lashley, 667 S.W.2d 712 (Mo. banc 1984); State v. Griffin, 662 S.W.2d 854 (Mo. banc 1983); State v. Laws, 661 S.W.2d 526 (Mo. banc 1983); State v. Gilmore, 661 S.W.2d 519 (Mo. banc 1983); State v. Gilmore, 650 S.W.2d 627 (Mo. banc 1983); State v. Larette, 648 S.W.2d 96 (Mo. banc 1983); State v. Blair, 638 S.W.2d 739 (Mo. banc 1982); State v. Trimble, 638 S.W.2d 726 (Mo. banc 1982).
. See State v. Nave, 694 S.W.2d 729 (Mo. banc 1985) (defendant murdered during a robbery, kidnapping, sodomy spree); State v. Malone, 694 S.W.2d 723 (Mo. banc (1985) (defendant murdered a cab driver and had previously murdered others); State v. Kenley, 693 S.W.2d 79 (Mo. banc 1985) (defendant murdered victim during armed robbery and kidnapping spree); State v. Gilmore, 681 S.W.2d 934 (Mo. banc 1984) (defendant robbed and killed elderly people); State v. Johns, 679 S.W.2d 253 (Mo. banc 1984) (defendant killed a gas station attendant during a robbery); State v. Byrd, 676 S.W.2d 494 (Mo. banc 1984) (defendant planned a robbery involving multiple murders and carried it out); State v. Lashley, 667 S.W.2d 712 (Mo. banc 1984) (defendant waited for the elderly woman who raised him to return to her apartment, he killed her with a frying pan and a knife); State v. Laws, 661 S.W.2d 526 (Mo. banc 1983) (defendant was part of a gang which robbed and killed the elderly); State v. Gilmore, 661 S.W.2d 519 (Mo. banc 1983) (defendant robbed and killed elderly people); State v. McDonald, 661 S.W.2d 497 (Mo. banc 1983) (defendant had attended college, he shot and robbed a police officer, discovering the officer's identity the defendant returned and shot the officer again); State v. Battle, 661 S.W.2d 487 (Mo. banc 1983) (defendant entered elderly woman’s home, waited for her to return, brutalized her, raped her, stabbed her); State v. Stokes, 638 S.W.2d 715 (Mo. banc 1982) (defendant accompanied a woman home, strangled and robbed her); State v. Baker, 636 S.W.2d 902 (Mo. banc 1982) (defendant shot, killed, and robbed a policeman). State v. Newlon, 627 S.W.2d 606 (Mo. banc 1982) (defendant discussed with his friends the robbery of a store and the killing of the proprietor, the store owner was killed with two deliberate blasts from a shotgun); State v. Mercer, 618 S.W.2d 1 (Mo. banc 1981) (defendant with others raped, beat, and killed a woman).
. Comparable cases where a capital murder was committed in the course of a robbery and the defendant received a life sentence include: State v. Turner, 623 S.W.2d 4 (Mo. banc 1981) (defendant killed two people); State v. Jensen, 621 S.W.2d 263 (Mo.1981) (defendant killed his supervisor when she discovered him stealing); State v. Baskerville, 616 S.W.2d 839 (Mo.1981) (defendant killed a 7 year-old boy, his mother, and his uncle); State v. Mitchell, 611 S.W.2d 223 (Mo. banc 1981) (defendant and his friend robbed a store stabbing the owner and an employee); State v. Royal, 610 S.W.2d 946 (Mo. banc 1981) (defendant robbed a bank, kidnapped and killed a teller); State v. Downs, 593 S.W.2d 535 (Mo.1980) (defendant and friends robbed a store, killed the owners, and killed the daughter as she begged for mercy); State v. Williams, 678 S.W.2d 845 (Mo.App.1984) (defendant robbed his uncle, beat him with bricks, and ran over his uncle 5 times with a car); State v. Laws, 668 S.W.2d 234 (Mo.App.1984); (defendant stabbed, choked, and burned his 68 year-old victim); State v. Henderson, 666 S.W.2d 882 (Mo.App.1984) (defendant killed an elderly man during a robbery); State v. Woolsey, 664 S.W.2d 37 (Mo.App.1984) (defendant carried out his plan to kill his mother-in-law, he took her to a remote área, shot her, and hid the body); State v. Woods, 662 S.W.2d 527 (Mo.App.1983) (defendant, who had attended college, stabbed a young woman seven or eight times; State v. Scott, 651 S.W.2d 199 (Mo.App.1983) (defendant entered an elderly couple’s home, robbed, and stabbed them).