concurring and dissenting.
Appellant contends that it was impermissible for the trial court to consider as aggravating factors anything other than the statutory aggravating circumstances set out in 1.C. 85-50-2-9(b), being nine in number at the time of this killing in 1981. Appellant argues that the trial court was in error in applying the standard sentencing procedure's list of aggravating cireum-stances for enhancing terms of years set forth in I.C. 85-88-1-7, the criteria for sentencing. The attorney general argues that the case of Davis v. State (1985), Ind., 477 N.E.2d 889, holds that once the trial court finds that one of the specific aggravating cireumstances enumerated in the death sentence statute has been proved, it may then go on and give additional weight to other rational aggravating cireumstanc-es which are proved and which would be cognizable under I.C. 85-38-1-7, the general felony sentencing process, but which are not found in I.C. 35-50-2-9(b), the death sentence statute. I do not agree that Davis holds this. It does instead hold that once the judge is satisfied that one aggravating cireumstance set out in the death statute is pleaded and proved, the court may also give weight to other aggravating circumstances from that same statute which are proved but not charged. Since Judge Chezem gave weight to aggravating circumstances not specified in the death statute when comparing the weight of the mitigating side of the ledger to that of the aggravators, her decision cannot stand. Indiana's statutory system for giving death requires the sentencer to balance the weight of aggravating circumstances enumerated in the death statute against any mitigating circumstances. This is our death sentence procedure and it does not permit the sentencer to consider aggravating circumstances other than those enumerated in the death sentence statute when engaged in the weighing process.
In the foregoing respect, the Indiana statute is unlike the statutes in some other states, where the statutory aggravating cireumstances, once proved, provide an open door to a final and basically unfettered discretionary death decision. See Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). In our stat ute, by contrast, the enumerated aggravating cireumstances do not merely play a role in the "definition stage" by narrowing the class of defendants to which the death penalty may properly be given, but they also play a role in the "selection process" by providing weight upon which the death penalty in the individual case must rest, which weight can be offset only by the weight of mitigating circumstances.
The construction of the death statute put forth by appellant is further supported by the language of LC. 85-50-2-9(d). There it is provided that the jury at the sentencing hearing may consider the evidence at trial and that the defendant may present additional evidence concerning "the aggravating circumstances alleged." The word "alleged" here shows that the search at the sentencing hearing is limited by the allegations set forth in the State's charge, which is itself limited to the statutory list of aggravators, and therefore is not open to other menus of aggravating circumstances found, for example, in the general criteria for felony sentencing, 1.C. 35-88-1-7.
The court's findings at sentencing also were that the court was satisfied that appellant did murder the victim. The term "murder" includes both an intentional killing and a knowing killing. Death is appropriate only if the killing is intentional and the aggravating circumstance is the confluence of an enumerated felony with the intentional killing. 1.C. 35-50-2-9(b)(1). One might infer that the trial court used the term "murder" to mean an intentional killing; however, I cannot vote to permit the death sentence to be carried out without an express clarification because the finding of an intentional killing is necessary.
Appellant also contends that the evidence of robbery was insufficient. I agree. *484Shortly after the crime, appellant was in possession of a lot of change which was in a musty-smelling shaving kit. There was also some broken glass among the coins. The victim's husband testified that he and the victim kept a lot of change in a glass jug in the house and that the jug was there on September 20, 1981, when he travelled to California to do a job. He took no note of the jug again until he noticed that it was missing after the crime, which occurred on October 26, 1981. Between those two dates, the victim was present in the house for substantial periods of time. The victim's billfold was examined at the scene and found to be empty. From this evidence, a rational trier of fact could not conclude to a certainty beyond a reasonable doubt that appellant took the money he had from the presence of victim. The musty bag in which appellant had the coins was not connected to the crime. None of appellant's incriminating admissions contained references to money or a robbery. The broken glass in the bag would tend to support an inference that a glass container holding the coins was broken; however, the evidence as a whole supporting the verdict and the finding of the trial judge, that appellant did rob the victim, is insufficient. On this basis, I would reverse the robbery conviction and also set aside the death sentence.
Following our preliminary remand, it has become clear that the corpus delicti for rape is no longer present. It is no longer to be found as previously thought in inferences from the general violence to the person of the victim together with the presence of hair like appellant's on the victim's pubic region and the presence of secretions like appellant's in the victim's vagina. Now that we know that these last two items must be disregarded as a matter of law, the corpus delicti must be found, if at all, in the remaining evidence material on the point, namely, the general violence done to the person of the victim, and some material from a non-secretor of unknown blood type, deposited there at some unknown time, and in the same location on the rug as some other like material from a blood-type O secretor. The victim's husband was a blood-type O secretor, appellant was a blood-type O non-secretor. Surely this residual of lawful evidence is insufficient to warrant any rational inference that the victim suffered unlawful carnal knowledge at the occasion of her murder. The sole remaining evidence of guilt is the statement of appellant, attributed to him by his girlfriend, who was motivated to testify and repeat the statement out of a desire to save him from the electric chair, which statement was that it was "Ace" who had killed the woman, but that he, the appellant, did rape her.
The evidence of the rape is simply insufficient after excision of the statement of the officer that the hair from the victim's pubic region was similar to appellant's and the statement of Dr. Pless that secretions in the victim's vagina were like those of appellant. In my view, the trial court was in error on remand and should have granted the motion for new trial, set aside the conviction for rape and ordered the defendant discharged on that offense. I would therefore reverse the decision of the trial court, order the convictions for rape and robbery vacated and the death sentence set aside, and require a term of years for the crime of murder to be imposed.
DICKSON, J., concurs.