State v. Beam , 115 Idaho 208 ( 1988 )

DISSENT ON DENIAL OF PETITION FOR REHEARING

BISTLINE, Justice,

dissenting on denial of petition for rehearing.

On the direct appeal the Court’s opinion made a specific holding:

We hold that the sentence of death imposed in the instant case is not excessive or disproportionate to the penalty imposed in similar cases.

That assessment when made was sound, and it is still sound. No one can say other than that I have agreed with it. But, as pointed out in the brief supporting the petition for rehearing, proportionality has yet to be considered by the Court with respect to the life sentence which codefendant Scroggins received.

The trial judge, the Hon. Edward Lodge, now retired from the Bench, has made public his assessment that Beam was the less culpable of the two. Law enforcement officials shared that assessment. After a thorough perusal of the record in both cases, that also became my assessment.

I remain of the opinion that it is legally unsound for the Court to not reconsider Beam’s sentence in light of, at least, the views of the trial judge and the officers that Beam was less culpable than Scrog-gins.