concurring and dissenting.
I concur in parts I, II, III, IV, and V of the Court’s opinion.
I respectfully dissent from part VI (Proportionality) of the Court’s opinion. After making the review we are required to make pursuant to I.C. § 19-2827(e)(3), I conclude that the death sentence imposed in this case is excessive and disproportionate to the penalty imposed in similar cases, considering the circumstances of the defendant.
The legislature has directed us to determine “[wjhether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” I.C. § 19-2827(c)(3). This provision was copied from the death sentencing scheme enacted in Georgia following the decision of the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Ga.Code Ann. § 17-10-35(e)(3) (1982).
In Pulley v. Harris, 465 U.S. 37, 42-43, 104 S.Ct. 871, 875-76, 79 L.Ed.2d 29, 35-36 (1984), the Supreme Court differentiated between traditional proportionality and the proportionality to which I.C. § 19-2827(c)(3) refers:
Traditionally, “proportionality” has been used with reference to an abstract evaluation of the appropriateness of a sentence for a particular crime. Looking to the gravity of the offense and the severity of the penalty, to sentences imposed for other crimes, and to sentencing practices in other jurisdictions, this Court has occasionally struck down punishments as inherently disproportionate, and therefore cruel and unusual, when imposed for a particular crime or category of crime. The death penalty is not in all cases a disproportionate penalty in this sense.
The proportionality review sought by Harris, required by the Court of Appeals, and provided for in numerous state statutes is of a different sort. This sort of proportionality review presumes that the death sentence is not disproportionate to the crime in the traditional sense. It purports to inquire instead whether the penalty is nonetheless unacceptable in a particular case because disproportionate to the punishment imposed on others convicted of the same crime.
(Citations omitted).
In Pulley, the Supreme Court ruled that the statutory proportionality review mandated by statutes such as I.C. § 19-2827(c)(3) is not required by the eighth amendment. Id. In McCleskey v. Kemp, 481 U.S. 279, 306, 107 S.Ct. 1756, 1775, 95 L.Ed.2d 262, 288 (1987), the Supreme Court reaffirmed that this statutory proportionality review is not constitutionally required “where the statutory procedures adequately channel the sentencer’s discretion.”
Recently, the United States District Court for the District of Idaho noted that proportionality review is not constitutionally required but that Pulley and McCleskey “make clear that proportionality review may be considered and implemented by the states as an additional safeguard against arbitrarily imposed death sentences.” Beam v. Paskett, 744 P.Supp. 958, 960 (D.Idaho 1990).
Therefore, I conclude that the review required by I.C. § 19-2927(c)(3) is entirely governed by the statutory intent of the legislature and not by any constitutional considerations. This statutory intent is revealed by the other provisions of I.C. § 19-2827 and by decisions of this Court applying the statute.
I.C. § 19-2827(g) provides that the Court “shall collect and preserve the records of all cases in which the penalty of death was imposed from and including the year 1975.” In State v. Creech, 105 Idaho 362, 375 n. 2, 670 P.2d 463, 476 n. 2 (1983), the Court read I.C. § 19-2827(c)(3) and (g) together “as requiring a comparison of the capital cases from 1975 to the present.”
I.C. § 19-2827(a) provides that this Court must review a death penalty sentence “on the record.” In State v. Scroggins, 110 Idaho 380, 387, 716 P.2d 1152, 1159 (1985), the Court construed I.C. § 19-2827(a) and (c)(3) together to require “an independent *449review of the sentence on the record.” In Scroggins, the Court concluded that the sentence of death imposed in that case was “excessive and disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” 110 Idaho at 387, 716 P.2d at 1159. The Court said:
We have painstakingly considered the record, and in so doing, have focused not only on the crime and the circumstances surrounding its commission but on the age, characteristics, criminal record and personal involvement of this defendant. We must conclude that the death sentence should not have been imposed in this case because in light of the following considerations, the death sentence as applied to this defendant was excessive.
Id. (emphasis in original).
Among the considerations discussed by the Court in Scroggins were that Scroggins did not have a history of violent criminal conduct, that his mental age was only 13.8 years, that he was under tremendous psychological pressure, and that he had failed to develop mature responses to stressful situations. 110 Idaho at 388, 716 P.2d at 1160.
In State v. Windsor, 110 Idaho 410, 420-22, 716 P.2d 1182, 1192-94 (1985), the Court said:
Whenever the death penalty is imposed this Court is required to conduct an independent review of the record to insure ... that when both the crime and the defendant are considered, a sentence of death is not excessive or disproportionate. After careful consideration of both the crime and the defendant, we conclude that the sentence of death imposed in this case was excessive and disproportionate. We therefore set aside the death sentence and remand for resentencing.
The concept of individualized sentencing is firmly entrenched in modern American jurisprudence. The familiar maxim that punishment should fit the crime has been broadened to provide that punishment should also fit the criminal. With this in mind, we now turn our focus to the defendant as an individual, outlining those factors in Windsor’s background and character which convince us that the death penalty was excessive in this instance. We begin by noting that Windsor, unlike the majority of capital defendants, has no formal criminal record nor significant history of prior criminal activity. There is no history of violent criminal activity, nor is there an indication that Windsor possesses any propensity toward violence.
The Court then reviewed other circumstances of Windsor personally, including her skills and abilities, her education, her experience and training, her troubled childhood and serious problems in her home environment. 110 Idaho at 422-23, 716 P.2d at 1194-95.
In this case, Card murdered the Moreys without any provocation and apparently without having had any prior acquaintance with them. The record does not disclose that Card had any motive to kill the Moreys. The murders were senseless and irrational.
Prior to the killings, Card had an argument with a clerk in a convenience store adjacent to where the shootings occurred. Card arrived at the store at about 1:30 a.m. The clerk described the conversation with Card before he left the store:
Well, he purchased milk and a sandwich and pickle and stuff and then he plopped himself up on the counter where the employees have their cigarettes or breaks whenever—when there is no customers or something, and just made himself at home, opened up everything up there and started talking to me about death and things like that.
He just told me I was going to see somebody die, asked me if I had ever seen somebody die and said it was a gross sight or disgusting—I don’t remember his exact terms, but he basically just [said], “Honey, have you ever seen anybody die? What time do you get off work?” I told him I just started my shift. He kept asking me and told me, *450“Well, Honey, you can tell me what time you get off work.” “Honey,” “sweetheart” seemed like his favorite words and “death” and I was going to sit here and watch it.
He asked me if anybody else was on duty at that time and I told him yes. He asked where she was, I said she was in the cooler. He said—customers came in and he said “Hey, man, I know you” and the lady said, “I have never seen you before in my life,” I told him—he was starting to get a little irate. I told him he was going to have to leave the store, he told me I could do nothing to him. I told him, “You will have to leave the store,” and he got very mad at me. But he did leave the store after I told him he had to leave.
The clerk testified that after Card left the store he walked down the street toward the freeway.
At about 3:20 a.m. the same morning, another clerk in the same convenience store observed Card shoot three times into the driver’s side of the Morey’s automobile, then walk around to the passenger side and fire two more shots. Two other witnesses testified at trial that they also observed this sequence of events.
At trial, a witness testified that he had been incarcerated with Card following Card’s arrest. The witness related what Card told him about the murders:
[H]e told me about the night he went out drinking and he went to three bars and in those three bars he didn’t have a very good time. He went back to buy a sandwich or something at the [convenience store]. When he went to the [convenience store], he was going up to the cash register to pay for his purchase ... he picked up the girl who works there’s milk and drank some of it and the girl got irate that he had drank from her carton and I guess chastised him pretty well for doing it. So he paid for his purchase and he told the girl he planned on killing someone, and in his own mind he said he was going to come back and kill her. So I guess he ate his sandwich and left.
... Well, he went up to the apartment and got his gun and he went back with the thought of killing this girl for having the audacity to chastise him over some milk, and when he got back—or he went and got some cigarettes first. I guess he walked the railroad tracks and at the end of the railroad tracks there’s another store ... and ... he bought some cigarettes and he ran into a neighbor of his and the neighbor offered to give him a ride home.
At this point he was going to go ahead and take the ride because he had his cigarettes and then at that point he thought, “To hell with it, I’m going to go ahead and finish this job.” So he walked ... over to the [convenience store]. Apparently the girl had gotten off of duty, she wasn’t there. So he was ... mad because of the bars and he had gone to a restaurant and the people at the restaurant told him he couldn’t come in there because he had been in there and been obnoxious a few nights before so they wouldn’t allow him to have breakfast, and plus this girl. So he just went over and first he shot the man ... he shot the man through the glass and then reached in and shot him a couple of more times. Then he walked around behind the car and I guess the woman was getting out and he opened the door and just blasted her.
Then from what I understand he walked across the street and I guess there’s a parking lot and a park and he just walked up there and went home.
The police report indicates that both the Moreys suffered bullet wounds to the head and that it appeared they had been shot through the closed windows of their vehicle. All indications were that the Moreys were folding newspapers prior to delivering them.
At the time of these murders, Card was twenty-eight years old. He had never been married, had no children, and was living with his mother and step-father. Although he did not graduate from high school, he did obtain his GED. He had a history of periodic employment as a janitor, ranch *451hand and general laborer during the nine years prior to the murders. He had been convicted of reckless driving and three charges of driving while under the influence. He had no other criminal record.
Card started having a problem with drugs, specifically marijuana and alcohol, in high school. When he was about seventeen, he began to spend more time by himself, he withdrew from his friends, and he started acting more isolated and alone. When he was about twenty-one, he started talking about hearing voices and acting as though he were scared. He spent some time talking to himself when he was sitting around. He expressed the feeling that the television was also talking to him.
In 1984, Card told his mother and stepfather that he needed to be castrated because he was concerned that he was going to be made to travel in space and do things to women he didn’t want to do. He talked about leaving his body. Within three or four months before the murders he talked to members of his family about a spiritual friend who was his son. He said this son was conceived when he impregnated a woman through space.
In November 1985, Card was admitted to a psychiatric facility. His evaluation at that time reflected the presence of a psychotic disorder. The doctor diagnosed Card’s condition as schizophrenic and paranoid and recommended treatment. Card rejected the treatment.
Following Card’s arrest for the murders, Dr. Estess and Dr. Webb determined that he was mentally incompetent to stand trial because of his mental status. During Card’s treatment for this incompetency, a psychologist employed by the board of corrections diagnosed him as being mentally ill with schizophrenia. The psychologist described this illness as follows:
Well, it takes many forms, but generally the things you look for is some kind of loss of reality, some sort of specific symptoms of delusions, hallucinations, generally private, strange sorts of thought, some kind of persecution or some kind of omnipotence or some kind of unusual powers or something along those lines.
After approximately six months of treatment and medication, Card was declared competent to stand trial.
At trial, Dr. Estess testified:
Q With the information that you obtained and your evaluation of David in June, I guess, July, August on through probably February, were you able to or do you feel that you could come to an opinion as to his ability in early June to deliberate. That is to form a course of action as a result of careful thought and weighing the considerations for and against the proposed course of action?
A Yes, I have an opinion about that. I think I could, reasonably.
Q Could your express your opinion and explain it, please.
A It would be my opinion that his ability to do that or to reason was impaired and that he would not be able to do that, so I think that his capacity to reasonably deliberate and think and those kinds of things about even the consequences of this actions were significantly impaired. I don’t think he had the ability to do that, based on the information which I have and which I have reviewed.
Q Is that as a result of his mental illness?
A I think that is as a result of his mental illness, yes.
At the time of the sentencing hearing, Dr. Estess reaffirmed the opinion he gave at trial and added:
It was generally my perspective that despite David’s paranoid ideas and his psychotic state, which I think has gone on for some years, that he had been sort of able to work around it. And the position that I took prior to this trial ... was that it was my opinion that but for David’s intoxication, in many ways I’m not sure this would have occurred. I think that his intoxication allowed him to slide further than he might have if he had not been intoxicated. That is purely conjecture on my part, but it was my *452view that intoxication was a significant variable with respect to David’s going ahead and making the decision to overtly express anger in the way that he did, and as inappropriately as he did.
As directed by I.C. § 19-2827(c)(3) and the decisions of this Court interpreting it, I have reviewed the sentence of death imposed on Card compared to the penalty imposed in similar cases in which the sentence was imposed in 1975 or later, considering both the crime and the defendant, to determine whether Card’s sentence is excessive or disproportionate. For ease of reference, I append a summary of the cases I have compared.
The cases I find most similar to this one so far as the crime is concerned are:
1. State v. Paz (death penalty imposed).
2. State v. Charboneau (death penalty imposed).
3. State v. Osborn (death penalty imposed).
4. State v. Lindquist (death penalty imposed).
On the basis of this comparison of these cases in which the crime was similar to the murders in this case, I find the death sentence imposed on Card not to be excessive or disproportionate.
The cases I find most similar to this one so far as the defendant is concerned are:
1.State v. Enno (fixed life imposed).
2. State v. Searcy (fixed life imposed).
3. State v. Scroggins (death sentence vacated by Supreme Court as excessive and disproportionate).
4. State v. Bainbridge (fixed life imposed).
5. State v. Olin (sentence not stated, but presumably not the death penalty).
Except for the death penalty in State v. Scroggins, where this Court vacated the death sentence, the district judge imposed a life sentence in each of these cases. This comparison convinces me that Card’s sentence was excessive and disproportionate.
My conclusion is not intended as criticism of the decision of the district judge to impose the death penalty. In my view, the legislature has directed this Court, pursuant to I.C. § 19-2827(c)(3), to review a death sentence in a different manner than the scheme the trial court is required to follow, pursuant to I.C. § 19-2515, in imposing sentence. The trial court’s job is to determine if there are any statutory aggravating factors and, if so, whether the mitigating factors outweigh each of the aggravating factors. Our job is to determine on appeal from the imposition of the death penalty whether the sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
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