concurring and dissenting.
I would affirm the convictions of Rouster and Williams on two counts each of felony murder, but set aside the penalty of death as to each and remand for the assessment of terms of years.
Review by this Court of the sentence of death is mandatory, automatic, and cannot be waived. Cooper v. State (1989), Ind., 540 N.E.2d 1216. This review includes consideration of whether the procedure before the jury and court by which the penalty has been imposed accords with the dictates of the sentencing statute, and whether the *1352evidence renders the sentence appropriate. Vandiver v. State (1985), Ind., 480 N.E.2d 910; Benirschke v. State (1991), Ind., 577 N.E.2d 576.
Here, the sentencing court was in error in giving weight to three separate death aggravators, i.e., 1) the intentional killing of Mrs. Rease while robbing, 2) the intentional killing of Mr. Rease while robbing, and 3) the double murder of the Reases. At the time of instructing the jury, and in arriving at its own sentence, the trial court concluded that the double murder aggravator rested upon the two felony murder convictions and required no proof of an intent to kill. In my opinion this was error. The aggravator in I.C. 35-50-2-9(b)(7), "has been convicted of another murder," and the aggravator in I.C. 35-50-2-9(b)(8), "committed another murder," each employing the term "murder," create at least an ambiguity of meaning. They should therefore be construed strictly to encompass only intentional murder and not felony murder. Such a construction would also aid in conforming the Indiana capital sentencing process to the eighth amendment requirements of a highly culpable mental state. Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987).
In evaluating the remaining valid aggra-vators, one finds that in addition to the worsening elements identified in the majority opinion, two ameliorative ones emerge from the record. The first is that the Reases were both armed and both received a form of warning when appellants yelled angrily and fired twice outside the house before entering the second time and employing deadly force. The second is that, rightly or wrongly, appellant Rouster believed the Reases had not provided him with the six dollar portion of the monthly support payments intended for his clothing. The trial judge concluded that this claim was a pretext indulged in by appellant to disguise his evil intent. I do not find this conclusion supported by the record. Appellant Rouster clearly planned this robbery over a period of time and had the intent to rob, i.e., to take that which did not belong to him. Such an intent does not preclude the existence of an intent also to get even for a perceived injury. To conclude as the trial judge did, that appellant Rouster did not truly indulge this perception of injury, is to reject what is plainly shown by this record. He asked his former welfare worker about it. He confronted his former foster parents with the claim and persisted in it. He permitted himself then, though armed, to be thrown out of the house. Accordingly, I find that the weight of these two aggravators is in the middle range.
With respect to mitigating circumstances, the trial judge concluded that there were none with respect to appellant Rouster which were entitled to the least weight, saying, "The Court finds nothing in mitigation." (Record at 148) With respect to appellant Williams, the court granted weight to one mitigating circumstance, namely no prior - eriminal - conduct. Williams is entitled to additional mitigating value for his regular employment and the aid and acts of kindness which he consistently gave to members of his family. Rouster is entitled to additional mitigating value because of his youth and the unsta-bie environment in which he grew up, and could not develop. Rouster was a normal, black, male child who was made a ward of the court when discharged from the hospital at age 7 days. He remained in that status until his 18th birthday. His adoption was never sought. His first placement in Gary with a foster couple was disrupted at age 5. His second placement in Indianapolis with a single parent foster family was disrupted at age 9. He had a speech defect and stuttered. Before reaching the Reases at age 17, he was then moved through six institutional placements and found to fall in the following categories: mildly mentally ill, emotionally disturbed, needing therapy at Tri-City Mental Health, could develop in a stable home environment to average if encouraged to develop his intellectual and school abilities, underachievement in school, stealing, group delinquent behavior, excessive alcohol intake, and poly-drug usage (cocaine, LSD, & marijuana).
In sum, for the purpose of deciding whether death or long term imprisonment *1353is appropriate in these cases, I find that the aggravating and mitigating circumstances are evenly balanced. Accordingly, my vote is to set aside both sentences of death.