dissenting.
«* » * Given that the imposition of death by public authority is so profoundly different from all other penalties, we cannot avoid the conclusion that an individualized decision is essential in capital cases. The need for treating each defendant in a capital case with that degree of respect due the uniqueness of the individual is far more important than in noncapital cases.” Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954 [2965], 57 L.Ed.2d 973 (1978).
In a capital-punishment case the sentencing phase may well be the most significant aspect of the entire proceeding. A capital-sentencing scheme, to meet constitutional standards, must insure that the jury’s discretion is “suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859, reh. denied 429 U.S. 875, 97 S.Ct. 197, 50 L.Ed.2d 158 (1976). Proper channeling of the sentencing authority’s discretion is essential to provide a
“ * ⅜ * meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not.” Furman v. Georgia, 408 U.S. 238, 313, 92 S.Ct. 2726 [2764], 33 L.Ed.2d 346, reh. denied 409 U.S. 902, [93 S.Ct. 89, 34 L.Ed.2d 164] (1972) (White, J., concurring).
To meet these constitutional standards and goals, the Wyoming legislature established certain factors to be considered by the jury as aggravating the offense of first-degree murder.1 The presence of one or more of these factors can justify the imposition of the death penalty. For these enumerated circumstances to fulfill their purpose, they must be construed and applied so as to focus the jury’s attention upon the distinguishing features of the case before it.
The majority in the instant case approve a rule which permits the jury to consider § 6 — 4—102(h)(vi) (now ’ § 6-2-102(h)(vi)), W.S.1977, murder “for pecuniary gain,” and § 6-4-102(h)(iv) (now § 6-2-102(h)(iv)), W.S.1977, “murder * * * committed while the defendant was engaged * * * in the commission of * * * any robbery,” as separate aggravating circumstances in a robbery-murder case. Rather than emphasize the differences between first-degree murder cases, this rule obscures relevant distinctions because it (1) treats an essential *559element of the crime — the underlying robbery in this robbery-murder case — as an aggravating circumstance and (2) affords double consideration of the fact that the defendant stole money.
AN ESSENTIAL ELEMENT OF AN OFFENSE CANNOT AGGRAVATE THAT SAME OFFENSE
The majority do not specifically address the issue of whether the jury may properly consider the underlying felony as an aggravating circumstance in a felony-murder ease. The North Carolina Supreme Court considered this question at length, however, in State v. Cherry, 298 N.C. 86, 257 S.E.2d 551, cert. denied 446 U.S. 941, 100 S.Ct. 2165, 64 L.Ed.2d 796 (1979). In that case the defendant was convicted of robbery-murder and sentenced to death. The jury had considered the fact that the murder was committed during the course of a robbery and the fact that the murder was committed for pecuniary gain as aggravating circumstances. The appellate court remanded the case for resentencing, holding that the act of robbery constituted the basis for, and an element of, the felony-murder conviction and, therefore, could not be considered an aggravating circumstance in support of the death penalty. In reaching this conclusion, the court discussed the disadvantaged position of the felony murderer compared to that of the premeditating murderer, when the underlying felony constitutes an aggravating factor:
“No element of a first degree murder which is committed with premeditation and deliberation is included in the list of aggravating circumstances found in G.S. 15A-2000(e). A defendant convicted of a felony murder, nothing else appearing, will have one aggravating circumstance ‘pending’ for no other reason than the nature of the conviction. On the other hand, a defendant convicted of a premeditated and deliberated killing, nothing else appearing, enters the sentencing phase with no strikes against him. This is highly incongruous, particularly in light of the fact that the felony murder may have been unintentional, whereas, a premeditated murder is, by definition, intentional and preconceived.
“It is well settled in this jurisdiction that when the State, in the trial of a charge of murder, uses evidence that the murder occurred in the perpetration of another felony so as to establish that the murder was murder in the first degree, the underlying felony becomes a part of the murder charge to the extent of preventing a further prosecution of the defendant for, or a further sentence of the defendant for, commission of the underlying felony. [Citations.] Although designed to prevent double jeopardy, a problem with which we are not here confronted, we think the merger rule sheds light on the question before us. Once the underlying felony has been used to obtain a conviction of first degree murder, it has become an element of that crime and may not thereafter be the basis for additional prosecution or sentence. Neither do we think the underlying felony should be submitted to the jury as an aggravating circumstance in the sentencing phase when it was the basis for, and an element of, a capital felony conviction. “We are of the opinion that, nothing else appearing, the possibility that a defendant convicted of a felony murder will be sentenced to death is disproportionately higher than the possibility that a defendant convicted of a premeditated killing will be sentenced to death due to the ‘automatic’ aggravating circumstance dealing with the underlying felony. To obviate this flaw in the statute, we hold that when a defendant is convicted of first degree murder under the felony murder rule, the trial judge shall not submit to the jury at the sentencing phase of the trial the aggravating circumstance concerning the underlying felony.” 257 S.E.2d at 567-568.
The North Carolina Supreme Court reaffirmed this holding in State v. Oliver, 302 N.C. 28, 274 S.E.2d 183 (1981), and State v. Silhan, 302 N.C. 223, 275 S.E.2d 450 (1981).
*560The Alabama Court of Criminal Appeals held in Bufford v. State, Ala.Cr.App., 382 So.2d 1162, 1173-1174 (1980), that robbery cannot be used to aggravate capital robbery, “or else the appellant is punished twice for the same act.” This position was reaffirmed in Reed v. State, Ala.Cr.App., 407 So.2d 153, 161 (1980), underlying conviction rev’d in Ex Parte Reed, Ala., 407 So.2d 162 (1981), where the court said:
“The crime charged consisted of two elements: (1) the robbery and (2) the intentional killing. An element of the offense charged cannot be used as an aggravating circumstance to that offense. In other words robbery cannot be used as an aggravating circumstance to the crime of capital robbery.”
I find the reasoning of these courts sound. Automatically instructing the sentencing body on the underlying felony in a felony-murder case does nothing to aid the jury in its task of distinguishing between first-degree homicides and defendants for the purpose of imposing the death penalty. Relevant distinctions dim, since all participants in a felony-murder, regardless of varying degrees of culpability, enter the sentencing stage with at least one aggravating factor against them.
Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), illustrates the extent to which distinctions can blur in a robbery-murder situation. In that case, the trial judge had sentenced the “lookout” in a robbery-murder case to death despite the fact that he had not intended to kill, attempted to kill or killed anyone. The judge justified his decision by specifying, inter alia, that the capital felony was committed during the course of a robbery and for pecuniary gain. The United States Supreme Court reversed the judgment upholding the death penalty on other grounds, but concluded that Enmund’s “punishment must be tailored to his personal responsibility and moral guilt.” 458 U.S. at 801, 102 S.Ct. at 3378.
A comparison of the sentencing treatments afforded first-degree-murder defendants further highlights the impropriety of using the underlying felony to aggravate felony-murder. The felony murderer, in contrast to the premeditated murderer, enters the sentencing stage with one aggravating circumstance automatically charged against him. This disparity in sentencing treatment bears no relationship to legitimate distinguishing features upon which the death penalty might constitutionally rest. Because the constitution requires a meaningful basis for distinguishing between capital cases, I would have held that the underlying felony may never be considered in aggravation of a felony murder.
DOUBLE CONSIDERATION OF AN AGGRAVATING FACT UNDERMINES THE CAPITAL-SENTENCING SCHEME
Generally, courts have disapproved of sentencing instructions which permit the jury to treat the same factual situation as embracing two or more aggravating circumstances. In Provence v. State, Fla., 337 So.2d 783, cert denied 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1976), discussed in the majority opinion, the Florida Supreme Court found reversible error where the jury considered the commission of a robbery and pecuniary gain as two separate circumstances aggravating robbery-murder. The court reasoned:
“ * * * [Hjere, as in all robbery-murders, both subsections [aggravating circumstances] refer to the same aspect of the defendant’s crime. Consequently, one who commits a capital crime in the course of a robbery will always begin with two aggravating circumstances against him while those who commit such a crime in the course of any other enumerated felony will not be similarly disadvantaged. Mindful that our decision in death penalty cases must result from more than a simple summing of aggravating and mitigating circumstances, State v. Dixon, 382 [283] So.2d 1, 10 (Fla.1973), we believe that Provence’s pecuniary motive at the time of the murder constitutes only one factor which we *561must consider in this ease.” 337 So.2d at 786.
Double consideration of the same aspect of a crime can impair the process of weighing the aggravating circumstances against the mitigating circumstances, with the result that the sentence of death must be vacated. Armstrong v. State, Fla., 399 So.2d 953 (1981).
In similar fashion the Alabama Supreme Court in Cook v. State, Ala., 369 So.2d 1251 (1979), held that the trial judge erred in applying duplicative aggravating circumstances to a robbery-murder:
“ * ⅜ * At Cook’s sentencing hearing the trial judge found that two aggravating circumstances were present: (4) — a capital felony committed in the course of a robbery, and (6) — a capital felony committed for pecuniary gain. In so finding we feel that the learned trial judge misconstrued the latter aggravating circumstance, in effect condemning Cook twice for the same culpable act — stealing money. Subsection 6 would, of course, cover a variety of crimes committed with the hope of financial benefit, ranging from ‘murder-for-hire’ to an heir killing his benefactor to gain his inheritance. But we do not think it appropriate to apply this aggravating circumstance to situations already condemned under subsection 4 which by definition involve an attempt at pecuniary gain. Thus, to avoid repetition, subsection 6 should not be applied to a robbery. The trial court erred in considering it and including it in the findings of fact.” 369 So.2d at 1256.
The California Supreme Court recently embraced this concept in People v. Harris, 36 Cal.3d 36, 201 Cal.Rptr. 782, 798, 679 P.2d 433, 449 (1984), saying:
“ ⅜ * * [T]he constitutionally mandated objective of focusing on the particularized circumstances of the crime and the defendant is undercut when the defendant’s conduct is artifically inflated by the multiple charging of overlapping special circumstances or multiple special circumstances based on an indivisible course of conduct having one principal criminal purpose.”
The Nebraska Supreme Court, in State v. Rust, 197 Neb. 528, 250 N.W.2d 867, 874, reh. denied 434 U.S. 988, 98 S.Ct. 622, 54 L.Ed.2d 485 (1977), solved the problem of overlapping circumstances by narrowly construing the pecuniary-gain factor:
“ * * * We construe this factor to apply (1) to the hired gun, (2) to the hirers of the gun, and (3) to murder motivated primarily by a desire for pecuniary gain as in the case of a murder of an insured by the beneficiary of a life insurance policy for the purpose of obtaining the proceeds, or the murder of a testator by a legatee or devisee to secure a legacy or a devise. Where, as here, the murder was committed as part of an attempt to escape or to conceal the identity of the perpetrator, we do not consider the murder was committed for a pecuniary gain even though the result could possibly have been to enable Rust to keep the proceeds of the robbery. We think it is not reasonable to construe the definitions in such a manner as to make them overlap and make the same identical facts constitute two aggravating circumstances.”
The Nebraska court, in State v. Stewart, 197 Neb. 497, 250 N.W.2d 849, 864 (1977), expounded on the harm in permitting double consideration of an aggravating factor:
“We also note that were subsection (l)(c) [murder committed for pecuniary gain] to be construed to apply to murder committed in the course of a robbery, it would appear that defendants who commit such murders would, from the outset, have two aggravating circumstances applied to them, (l)(b) [murder committed to conceal commission of crime or identity of perpetrator] and (l)(c); whereas in the case of a premeditated murder, neither circumstance would apply. We do not believe the Legislature intended to treat persons who commit murder in the course of a robbery more harshly than those who commit premeditated murder. We also find that subsections (l)(b) and *562(l)(c) are separate and distinct circumstances and should be construed so as not to overlap.”
The majority in the instant case reject the reasoning of the above cases and hold that the jury may consider both robbery and pecuniary gain as aggravating circumstances in a robbery-murder case. The majority submit that pecuniary gain concerns the motive of the defendant while robbery goes to the character of his act. Both factors must be submitted to the jury, according to the majority opinion, to permit consideration of “aspects of the entire matter which are of significance.” The majority rely on North Carolina cases which hold that the jury may consider “for pecuniary gain” as an aggravating factor in robbery-murder cases, since that factor goes to the defendant’s motive and is not an element of the offense.
As discussed above, the perpetration of a robbery may not be considered as an aggravating factor in robbery-murder cases in North Carolina; hence the jury cannot consider both robbery and pecuniary gain as death-supporting circumstances in such cases. State v. Irwin, 304 N.C. 93, 282 S.E.2d 439 (1981). Furthermore, in State v. Goodman, 298 N.C. 1, 257 S.E.2d 569 (1979), the North Carolina Supreme Court ruled improper the application of two aggravating circumstances2 to the same evidence:
“We think the submission of the two issues on the same evidence was improper. This amounted to an unnecessary duplication of the circumstances enumerated in the statute, resulting in an automatic cumulation of aggravating circumstances against the defendant.” 257 S.E.2d at 587.
The court commented in dicta, however, that dual consideration of circumstances might be appropriate for examining the defendant’s motive, rather than a specific factual element.
I find the majority’s distinction between “motive” and “character of the act,” as these factors apply to a robbery, much too subtle to be a part of the balancing process where a man’s life is at stake.3 A decision to impose death must be “ ‘controlled by clear and objective standards’ ”4 that provide “specific and detailed guidance”5 to the decision-maker, if arbitrary and capricious action is to be avoided.
In summary, the Federal Constitution requires that a capital-sentencing procedure be one that
“ * * * guides and focuses the jury’s objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a sentence of death.” Jurek v. Texas, 428 U.S. 262, 274, 96 S.Ct. 2950, 2957, 49 L.Ed.2d 929, reh. denied 429 U.S. 875, 97 S.Ct. 198 [50 L.Ed.2d 158] (1976).
In the present case, the jury was allowed to consider an essential element of defendant’s crime — the felony — as a circumstance which enhanced his culpability sufficiently to justify the death penalty. In addition, the trial court instructed the jury on two aggravating circumstances which describe the same, indivisible feature of the offense — the stealing of money. Considera*563tion of robbery and pecuniary gain in the sentencing phase of appellant’s trial prevented the jury from rendering the individualized decision essential in capital cases. Therefore, this case should have been remanded for resentencing upon consideration of the proper aggravating circumstances. As we said in Hopkinson v. State, Wyo., 664 P.2d 43, 60 (1983):
“ * * * [W]e must not compromise the weighing process between permissible aggravating circumstances and mitigating circumstances. The scales must not be tipped by impermissible factors leaving us in a quandary as to what the jury would have done had impermissible factors not been present. [.Hopkinson v. State, Wyo., 632 P.2d 79, 170-172 (1981).] «* * * Yfe accept the proposition that improper aggravating circumstances cannot go into the calculus of the decision of the sentencing authority.”
THE DEATH PENALTY IS UNCONSTITUTIONAL
I continue to adhere to my position, announced in Hopkinson v. State, Wyo., 632 P.2d 79, cert. denied 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1981) (dissenting opinion at 199-216), that the death penalty in all circumstances is cruel and unusual punishment and, therefore, violative of Art. 1, §§ 14 and 15 of the Wyoming Constitution.
“ * * * I find the sentence of death to be — not only cruel in fact — unusual in fact — but cruel and unusual in law. “When I say it is cruel in law, I rely heavily upon the parameters within which the testing process must take place as delineated in the Wyoming constitutional provision which says the criminal laws of this state must be founded in ‘the humane principles of reformation and prevention’ (Art. 1, § 15, Wyoming Constitution) and the doctrine which has been identified by the United States Supreme Court when it has been said that we will test the cruelty of punishment from time to time by taking into account the ‘evolving standards of decency that mark the progress of a maturing society.’ ” 632 P.2d at 215 (Rose, J., dissenting).
. Section 6-4-102(h) (now § 6-2-102(h)), W.S. 1977, limits the sentencing authority's consideration to eight potential aggravating circumstances. Majority opinion, n. 7.
. The two aggravating circumstances under consideration in that case were G.S. 15A-2000(e)(4), "'[t]he capital felony was committed for the purpose of avoiding or preventing a lawful arrest * * *,’ ” 257 S.E.2d at 585, and G.S. 15A-2000(e)(7), the ‘"capital felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.’ ” 257 S.E.2d at 587.
. The jury actually found the defendant’s motive to be a mitigating circumstance in this case — a fact which underscores the impropriety of treating pecuniary gain as a separate "motive” component of robbery. The jury specified this non-statutory mitigating circumstance:
“The robbery and murder committed by this Defendant may have been caused by his economic and family conditions.”
. Gregg v. Georgia, supra, 428 U.S. at 198, 96 S.Ct. at 2936, quoting from Coley v. State, 231 Ga. 829, 834, 204 S.E.2d 612, 615 (1974).
. Proffitt v. Florida, 428 U.S. 242, 253, 96 S.Ct. 2960, 2967, 49 L.Ed.2d 913, reh. denied 429 U.S. 875, 97 S.Ct. 198, 50 L.Ed.2d 158 (1976) (opinion of Stewart, Powell and Stevens, JJ.).