concurring in result and dissenting.
In this case, appellant was convicted in an earlier trial of the murder of one Bart kowiak. This conviction should not be deemed sufficient to show an aggravating cireumstance under 1.0. 85-50-2-9(b)(7), which sets out such cireumstance as "The defendant has been convicted of another murder," because it occurred after the murder of Rubrake and Bosler. In Thompson v. State (1986), Ind., 492 N.E.2d 264, 270, this Court expressed a non-binding opinion that in order for this aggravator to exist, "the prior conviction must have existed at the time of commission of the principal murder charged." Under this rationale, the aggravator identifies one who was not deterred from killing other human beings by the experience of having been previously subjected to a trial and conviction for murder. I would elevate this nonbinding interpretation to a binding status in this case. Since the Bartkowiak conviction stands as an improper aggravator among several of the aggravating circumstances considered by the jury and was relied upon by the court in giving a single aggravating weight, I would, on this basis, order the sentence of death set aside.
The sentence of death was supported by the court's statement that "[the aggravating circumstances outweigh any mitigating circumstances that exist and warrant the death penalty." At the sentencing in court and in the court's sentencing order, the specific aggravating circumstances are fully stated; however, there is no explanation of what mitigating circumstances may have been considered and evaluated. Despite the strong indications in support of an aggravating circumstance, namely, the proof that appellant was the triggerman in the killing of two men, there must be specific written findings describing aggravating and mitigating circumstances found to exist. Judy v. State (1981), 275 Ind. 145, 416 N.E.2d 95. There is nothing in this record, as there was in Judy, showing that the sentencing court parcelled out the evidence of mitigating cireumstances into discrete categories and then simply did not recite them in the written findings. I would not, therefore, as was done in Judy, remand for an inclusion of such acts of judgment in the sentencing order, but instead would set aside the sentence of death and order a new sentencing hearing before the court, or in lieu thereof, the imposition of sentences for years. I do, however, vote to affirm the convictions.
Further, I believe that in a case such as this where irrelevant and highly prejudicial matter was received at the sentencing hearing and where the judge's written statement is silent as to whether it was considered in making the determination that the death penalty be imposed, the case should be remanded to the trial court with an order that he clarify what impact, if any, this matter had on his decision to sentence the defendant to death. The employment of a remand process, especially in these circumstances, is in accord with my views recently expressed in a separate opinion in Coleman v. State (1990), Ind., 558 N.E.2d 1059 (DeBruler, J., concurring in result and dissenting).