dissenting.
Having participated in several dozen death penalty appeals now, I have come to accept that there are important differences among them. A few perpetrators are hapless losers who kill their victims under circumstances barely distinguishable from those in non-capital cases. Other perpetrators are hard and calculating killers who brutalize and dispose of their victims in ways shocking to the mind.
Stuart Kennedy's murder of Michelle Seagraves falls into this latter category, and thus I regret today's decision by this Court.
Michelle Seagraves was a totally innocent victim whom Stuart Kennedy kidnapped because he and Donald Jackson did not want to use Jackson's car to commit bank robbery. Witnesses at trial identified Kennedy as the person who abducted Sea-graves from the parking lot of her apart ment in Columbus, Ohio, and carried her all the way to Moores Hill, Indiana, for the job at Peoples National Bank.
A pathologist testified that Seagraves had been hit in the head with a blunt instrument, strangled with a flat black strap which was still around her neck at the time of the autopsy, and shot in the back of the neck with the bullet exiting just above her left eye. Death was caused by a combination of the strangulation and the gunshot wound.
Jackson told the police that it was Kennedy who delivered the fatal blows. Kennedy did return to his girlfriend's apart ment with a .41 caliber magnum revolver, carrying it in a gym bag she had loaned him. A ballistics expert testified at trial that this revolver could have been the murder weapon.
The prosecution has maintained that Kennedy was the principal actor in the actual killing, although it is plain that Donald Jackson was an active participant in the events of October 9, 1986. This Court noted the probable lesser role of Donald Jackson when it set aside the death penalty in his case and ordered a term of years. Jackson v. State (1992), Ind., 597 N.E.2d 950, 955-56.
Setting aside the penalty for Stuart Kennedy demonstrates the correctness of the fear expressed by Deputy Attorney General Arthur Thaddeus Perry during oral argument in this case. If two killers manage to be sufficiently obscure about who rendered the final blow, he said, they may both avoid the death penalty even for the most outrageous killings.
I think it is pretty clear, as we said in Jackson, that Stuart Kennedy pulled the trigger and shot Michelle Seagraves in the back of the head. There is no doubt, however, that her murder stands out as especially calculating, premeditated, and utterly without excuse. She was not killed in a *21moment of panic, or out of sexual sickness, or during a drug-crazed episode. She was captured hundreds of miles away because two bank robbers wanted a car nobody would recognize and then slaughtered because they thought it was inconvenient to leave behind an eyewitness.
We remanded this case to one of our best trial judges, John A. Westhafer, Jr., "(ble cause the trial court did not have [the Martinez-Chavez] standard available to it when Kennedy was sentenced to death." Kennedy, 578 N.E.2d at 637. Judge Wes-thafer had presided over a very lengthy trial. He heard from thirty witnesses during the death penalty phase alone. Having heard all that evidence and considered twice what sentence would be just, he still concluded that the jury's recommendation was unreasonable: "If any murder warrants the imposition of the death penalty, this case is surely it."
I agree with Judge WESTHAFER, and I would affirm his judgment.
GIVAN, J., concurs.