State v. Windsor , 110 Idaho 410 ( 1985 )

DONALDSON, Chief Justice.

Appellant Karla Windsor appeals from her conviction for first degree murder and from the imposition of the death penalty therefor.

On September 7, 1983, Sterling Grammer was stabbed to death in his Caldwell home. On September 10, 1983, Karla Windsor and Donald Fetterly were observed driving a vehicle registered to Grammer. They were subsequently arrested and charged with first degree murder, burglary, grand theft and the use of a deadly weapon in connection with Grammer’s death.

The record reveals that Windsor and Fet-terly had become acquainted with Gram-mer several weeks prior to his death. Grammer was dating Fetterly’s ex-mother-in-law, Viola Hogan, and Windsor and Fet-terly met Grammer through her.

The scenario that culminated in Gram-mer’s death on Wednesday, September 7 began unfolding on Monday, September 5 when Windsor and Fetterly showed up at Grammer’s home around dinner time. The pair had been living together for approximately six months at the time of Gram-mer’s death. They were unemployed and had sold most of their possessions to raise money in order to travel to adjacent states in search of work. When they arrived at Grammer’s doorstep on September 5, they were without money, a vehicle or a place to stay. Grammer invited them to stay for dinner and allowed them to spend the night in his extra room. Grammer woke them about 5:30 the next morning and they all left the house together.

Windsor and Fetterly had been told that there were several warrants out for their arrest and they spent the day of September 6 walking around and trying to devise a plan to get themselves safely out of the state. During their visit with Grammer, they had observed that he owned two vehicles, a large television, and a diamond ring. Windsor testified that they decided to ask Grammer to loan them a vehicle. She further testified that, if he refused, they had decided to tie him up and rob him. She stated that they never intended to hurt Grammer, only to rob him.

The pair returned to Grammer's house that afternoon and waited for him to come home from work. When he did not arrive, they entered the house through a window and waited for him. Grammer did not come home until about 6:30 the following morning. Viola Hogan testified that he had spent the night at her home.

Windsor testified that when Grammer arrived at home on Wednesday morning, she and Fetterly explained their situation and asked him to give them a vehicle and some money. When he refused, they decided to go ahead with the robbery. They had found some duct tape in Grammer’s bedroom which they used to bind his hands and feet. Windsor stated that Grammer agreed to let them tie him up and did not struggle. The autopsy, however, revealed an unexplained bruise to the back of Gram-mer’s head. The state’s medical expert testified that in his opinion a blow sufficient to have raised such a bruise would have rendered Grammer unconscious. From this, the state postulated that Windsor and Fetterly struck Grammer and that he was unconscious when they taped him.

Grammer’s face was also covered with duct tape. The state’s expert testified, over objection, that the placement of the tape would have completely cut-off Gram-mer’s air supply. Windsor testified that she taped Grammer’s face and that his breathing was not affected.

Windsor’s version of the stabbing is substantially as follows: Grammer was taped up and left lying on his bed while Windsor and Fetterly determined which of his possessions to take. Grammer began to make a lot of noise. Afraid that he would alert the neighbors, Windsor and Fetterly ran into the bedroom and attempted to quiet him. Grammer began to thrash around on the bed. Fetterly grabbed him and tried to hold him still. Grammer then began kicking his legs and Windsor laid across them. At that point, Fetterly reached across the headboard and grabbed the knife they had used to cut the duct tape. He held the knife to Grammer’s chest. When Grammer continued to struggle, Fetterly stabbed him several times in the chest. Windsor stated that the stabbing occurred so quickly that it was impossible for her to do anything to prevent it.

Grammer’s body was dumped in the Snake River where it was discovered by a pair of fishermen on September 9. The following day, a police officer observed Windsor and Fetterly driving around Caldwell in Grammer’s pickup. They were stopped and taken to the Canyon County Sheriff’s Office for questioning.

Windsor was placed in an interrogation room and questioned by Detective Jim Hen-sen as to the whereabouts of the deceased’s other vehicle. She was not given Miranda warnings prior to this questioning. Windsor’s answers enabled the police to locate the vehicle.

After Hensen had obtained the information about the vehicle, his supervisor, Richard Appleton, suggested Hensen leave the room as Windsor was becoming upset by what Appleton termed Hensen’s “firm attitude.” Appleton then talked to Windsor in an attempt to calm her. He told her that if she was involved in anything it would be best if she told the truth. Windsor responded that she was not going to make any statement without Fetterly being present. Appleton had Fetterly brought into the room and, after talking together, Fetterly and Windsor agreed to make a joint statement. At that point, Appleton read them their Miranda rights. Both Windsor and Fetterly signed forms waiving those rights and proceeded to give a detailed confession. On the basis of that confession, they were indicted on charges of first degree murder, burglary, grand theft and the use of a deadly weapon in the commission of a felony.

Trial was set for December 12,1983. On November 21, 1983, the defense filed a motion for change of venue or, in the alternative, for selection of a jury from a county other than Canyon alleging that widespread pretrial publicity mandated such procedures. Both motions were denied without prejudice.

Several other pretrial motions were made, including a motion to sever the trial of the two defendants and a motion to suppress the joint confession. Additionally, the public defender moved to sever Windsor’s defense due to a conflict of interest. The court granted the motion to sever the trial, rescheduling Windsor’s trial for February 13, 1984, and allowed withdrawal of counsel from Windsor’s defense. The motion for suppression of the joint confession was denied.

The trial of co-defendant Donald Fetterly began on December 12,1983 and concluded on December 15, 1983. The jury returned a guilty verdict not only to first degree premeditated and deliberate murder, but to felony murder as well. Publicity regarding Fetterly’s trial and conviction was extensive. As a result, Windsor renewed her motion for a change of venue. The trial court took the motion under advisement indicating that the matter of venue would not be decided until trial. Jury selection in Windsor’s trial was commenced on February 13, 1984. Once the jury had been im-panelled, the court denied Windsor’s motion for change of venue without comment.

On February 16, 1984, the jury returned a verdict of guilty to the charges of grand theft, second degree burglary and first degree murder in the perpetration of a burglary. The verdict form for premeditated murder was returned unsigned. Windsor’s motion to have an acquittal entered on that charge was denied.

Notice of intent to seek the death penalty was filed on March 20, 1984. The court scheduled the matter for sentencing and ordered a presentence investigation. Alleging that the pre-sentence investigator interrogated Windsor regarding facts of the crimes charged in violation of her constitutional rights, the defense filed a motion to strike portions of the presentence report. The motion was denied. Prior to sentencing, Windsor moved for a formal sentencing hearing and for sentencing by jury. These motions were also denied and the hearing on aggravation and mitigation commenced on March 28, 1984. Following testimony and argument, the court determined that the aggravating circumstances outweighed the mitigating circumstances and the death penalty was imposed. The court also imposed a concurrent indeterminate five-year sentence for burglary and a concurrent indeterminate fourteen-year sentence for grand theft. A death warrant and findings were filed pursuant to I.C. § 19-2515.

Thereafter, Windsor filed a motion for reduction and correction of sentence. A hearing on that motion was held on November 14, 1984. At the hearing, Windsor objected to the fact that the prosecutor had filed a document with the court entitled “Memorandum Regarding Aggravation/Mitigation Hearing of Karla Windsor” without serving the defense with a copy. She also argued that the death penalty was disproportionate in her case. Windsor’s motion was denied without any discussion of her objection to the prosecutor’s memorandum. Windsor appeals from the judgment of conviction for first degree murder and from the imposition of the death penalty.

I.

Windsor alleges that the totality of the circumstances surrounding the taking of the joint confession rendered it involuntary and therefore inadmissible. Although conceding that she was read her Miranda rights and that she signed a waiver of those rights prior to giving the confession, she nevertheless asserts that she was coerced into making a statement in violation of Miranda. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). She contends that Officers Hensen and Appleton used a “good cop/bad cop” technique to psychologically pressure her into making a statement. She asserts that Officer Hensen assumed the role of “bad cop” badgering her to the point where she was visibly upset. Officer Appleton then intervened, she alleges, cajoling her into giving a confession which she would not otherwise have made.

Windsor raised this same issue before the trial court when she moved to suppress the joint confession. The record from that hearing does reveal that Officer Hensen questioned Windsor prior to reading her her Miranda rights and that Windsor was upset by what Officer Appleton referred to as Hensen’s “firm attitude.” However, the record also reveals that Hensen only questioned Windsor for a total period of approximately five minutes and that his questions were confined solely to ascertaining the location of Grammer’s car. Windsor provided him with a phone number of the residence where the car was located and he left the room. The joint confession was not taken until more than an hour later.

After Hensen departed, Windsor asked to speak to Fetterly. The pair conferred for some time and then agreed to make a joint statement. At that point, they were read their Miranda rights. The confession which followed was not connected in any way to the initial questioning as to the location of the car.

The United States Supreme Court recently addressed this issue in Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), holding that a suspect who has responded to unwarned, yet uncoerced, questioning is not thereby disabled from thereafter waiving his or her rights and confessing following proper Miranda warnings.

“Far from establishing a rigid rule, we direct courts to avoid one; there is no warrant for presuming coercive effect where the suspect’s initial inculpatory statement, though technically in violation of Miranda, was voluntary. (Footnote omitted.) The relevant inquiry is whether, in fact, the second statement was also voluntarily made. As in any such inquiry, the finder of fact must examine surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the volun-tariness of his statements. The fact that a suspect chooses to speak after being informed of his rights is, of course, highly probative.... We hold today that a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.” Id. at —, 105 S.Ct. at 1298.

After hearing testimony and argument on this issue, the trial judge concluded that

“when Mr. Hensen inquired about the automobile and was given a telephone number, nothing transpired there that was brought back to the Defendants that might cause them to be coerced or pushed into a confession.... [I]t is clear to the Court, at least as to Mr. Appleton’s interview, that the Miranda warnings were given in detail, and each paragraph was read, and a response was given back by the Defendants that they understood that right and that they waived the same, both being present and having had the benefit of conferring with each other and talking with each other as to whether they wanted to make that confession.... I think that the record is void of any psychological pressure brought to bear upon the Defendants. ... There is just no indication at all at this point that they were pressured or coerced in any way.”

We have carefully examined the record and we agree with the trial judge that it does not appear that Windsor was coerced into giving a statement. After examining the totality of the circumstances surrounding the making of the joint confession, we conclude that sufficient evidence was introduced to permit the trial court to conclude that the confession was voluntarily made and therefore admissible.

II.

Windsor contends that the trial court abused its discretion in denying her motion for a change of venue. She maintains that the extensive pretrial publicity coupled with the widespread media coverage of the trial and conviction of her co-defendant, Donald Fetterly, deprived her of the opportunity to be tried before an impartial jury.

The decision as to whether or not to grant a motion for change of venue lies within the discretion of the trial court. State v. Thomas, 94 Idaho 430, 432, 489 P.2d 1310, 1312 (1971). “[Wjhere it appears that the defendant actually received a fair trial and that there was no difficulty experienced in selecting a jury, refusal to grant a change of venue is not a ground for reversal.” Id.

The evidence in the record before us leads us to conclude that Windsor received a fair trial by an impartial jury. Despite the widespread publicity surrounding this case, a jury was selected from Canyon County with relative ease. From their answers to preliminary questions by the court, it appears that most of the jury panel was largely unfamiliar with the facts of this case. In individual questioning, most of the jurors indicated that any recall they did have was very vague. Only two prospective jurors were disqualified because of bias they had developed due to media coverage. Of the twelve jurors and two alternates selected, none had more than a hazy recollection of the circumstances surrounding the killing. None of these jurors were challenged for cause. In addition, we note that defense counsel did not exercise all of her peremptory challenges. All of the jurors who were finally selected stated they had formed no opinion, and could set aside anything they had heard and base their verdict only on the evidence at trial.

Considering the record as a whole, including the transcript of the voir dire examination, it appears that there was no difficulty in selecting the jury, and that the defendant received a fair trial. We conclude that the trial court did not abuse its discretion in denying Windsor’s motion for change of venue.

III.

Windsor next asserts that the trial court committed reversible error by admitting inflammatory testimony and photographs.

At trial, the state’s pathologist, Dr. Don-delinger, was permitted to testify, over objection, that the manner in which the tape was affixed to the victim’s face would have prevented any breathing. Windsor contends that such testimony served no probative function and that its admission could only have served to inflame the minds and passions of the jury against her.

Where allegedly inflammatory evidence is relevant and material to an issue of fact, the trial court must determine whether the evidence’s probative value is outweighed by its possible prejudicial effect. State v. Wilson, 93 Idaho 194, 196-97, 457 P.2d 433, 435-36 (1969). The determination of whether or not to admit such evidence is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. State v. Abel, 104 Idaho 865, 870, 664 P.2d 772, 777 (1983).

While we agree that the evidence was prejudicial, we do not agree that its admission was erroneous. As the trial judge recognized in admitting the evidence, a jury is entitled to base its decision upon a full and complete description of the events surrounding the commission of a crime. State v. Izatt, 96 Idaho 667, 670, 534 P.2d 1107, 1110 (1975). Dr. Dondelinger’s testimony was clearly relevant to provide a complete description of the crime and, because Windsor admitted that she did the taping, to show her state of mind and intent at the time of its commission. We conclude that the trial court did not abuse its discretion in admitting Dr. Dondelinger’s testimony.

Windsor also objects to the admission of photographs of the deceased’s body. Photographs of the victim in a prosecution for homicide, duly verified and shown by extrinsic evidence to be faithful representations of the victim at the time in question are, in the discretion of the trial court, admissible in evidence as an aid to the jury in arriving at a fair understanding of the evidence. State v. Martinez, 92 Idaho 183, 188, 439 P.2d 691, 696, cert. denied, 393 U.S. 945, 89 S.Ct. 317, 21 L.Ed.2d 283 (1968). Having reviewed the photographs, we find no abuse of discretion in their admission.

IV.

Windsor claims that her state and federal constitutional rights to due process of law were violated because she was tried and convicted on a charge of which she had no notice. She argues that there was a variance between the information by which she was charged and the verdict by which she was convicted, and that the variance is fatal and mandates reversal of her conviction.

Windsor was charged with first degree murder under Count I of the Information which read as follows:

“COUNT I

That DONALD KENNETH FETTERLY and KARLA YVONNE WINDSOR, on or about the 7th day of September, 1983, in the County of Canyon and State of Idaho, then and there being, did then and there wilfully, knowingly, intentionally, unlawfully, feloniously, with malice aforethought and premeditation, kill a human being, to wit: STERLING GENE GRAMMER, by then and there stabbing the said Sterling Gene Grammer in the chest with a knife, thereby mortally wounding said Sterling Gene Grammer, from which wounds said Sterling Gene Grammer died on or about the 7th day of September, 1983, in the County of Canyon, State of Idaho.

“All of which is contrary to Idaho Code Sections 18-4001 and 18-4003, and against the power, peace and dignity of the State of Idaho.”

The jury was instructed that a verdict of first degree murder could be returned on one of two theories: (1) a wilful, deliberate and premeditated killing or (2) a murder committed in the perpetration or attempt to perpetrate a felony. The jury returned a verdict of “guilty of the offense of First Degree Murder in perpetration of, or attempt to perpetrate, a burglary, as charged by Count I of the Information.” The verdict form for wilful, deliberate and premeditated murder was returned unsigned. Windsor contends that the information charged her only with the crime of “premeditated murder” and that she was never charged with what she views as a separate and distinct crime “first degree murder in the perpetration of or attempt to perpetrate a burglary.” Therefore, she insists that the verdict is inconsistent and irreconcilable with the information, mandating reversal of her conviction.

We deem it unnecessary to address the question of whether a variance existed, for, even assuming, arguendo, that there was a variance between the crimes charged and the proof at trial, we conclude that under the facts of the present case such a variance was not fatal.

The sufficiency of an indictment or information ultimately depends on whether it fulfills the basic functions of the pleading instrument. In Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), the United States Supreme Court, applying a functional analysis, set forth the following standard for testing the sufficiency of a pleading:

“Our prior cases indicate that an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs the defendant of the charges against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” Id. at 117, 94 S.Ct. at 2907.

Specifically, then, regarding the issue of variance, a determination of whether a variance is fatal depends on whether or not the basic functions of the pleading requirement have been met. As stated by the United States Supreme Court in Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935):

“The true inquiry ... is not whether there has been a variance in proof, but whether there has been such a variance as to ‘affect the substantial rights’ of the accused. The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.”

Thus, under the prevailing state standard, a variance is held to require reversal of the conviction only when it deprives the defendant of his right to fair notice or leaves him open to the risk of double jeopardy.¹ The notice element of the Berger standard requires courts to determine whether the record suggests the possibility that the defendant was misled or embarrassed in the preparation or presentation of his defense. Berger, supra at 82-84, 55 S.Ct. at 630-631.

Based on the foregoing, it becomes clear that in the present case there was no fatal variance. There is no evidence in the record to suggest that the defendant was either misled or embarrassed at trial by the fact that the prosecution’s theory of the case included a felony murder theory. It was clear from the very beginning of this case that the prosecution intended to proceed on both premeditated and deliberate, and felony murder theories. The record before us indicates that prior to trial the prosecution proposed a plea negotiation whereby Windsor would agree to plead guilty to both premeditated murder and felony murder in exchange for a sentence other than death. At the close of the trial, when the prosecution offered an instruction on felony murder, the defense objected only on the ground that the instruction did not properly define all of the necessary elements of the crime. It did not object on the grounds of surprise or variance. We conclude that the allegations of the information were sufficient to permit the jury to be instructed on a felony murder theory.

V.

As mentioned above, Windsor maintains that the jury was erroneously instructed on the elements of felony murder. At trial, she requested an instruction to the effect that a burglary and a murder must be part of a continuous action closely related in time, place and causal relation before the murder can be found to be in the perpetration of the felony. It is Windsor’s position that under the facts of the present case the burglary was completed long before the victim was murdered and, therefore, that it was error to instruct on felony murder. We addressed the same issue in State v. Fetterly, 109 Idaho 766, 710 P.2d 1202, 1297-1298 (1985), wherein we held that such a narrow construction would deprive the felony murder rule of any validity unless the victim was killed while the burglar had one leg over the windowsill or one foot across the threshold. Our discussion in Fetterly, supra, is dispositive of this issue. The trial court was correct in refusing to give defendant’s requested instruction.

VI.

Windsor argues that Idaho’s capital sentencing process violates both the Idaho and Federal Constitutions in its failure to utilize a jury. This Court has previously addressed this issue. See State v. Sivak, 105 Idaho 900, 674 P.2d 396 (1983) cert. denied, - U.S. -, 104 S.Ct. 3591, 82 L.Ed.2d 887 (1984); State v. Creech, 105 Idaho 362, 670 P.2d 463 (1983) cert. denied, 465 U.S. 1051, 104 S.Ct. 1327, 79 L.Ed.2d 722 (1984). We continue to adhere to the position stated in both Creech and Sivak, and find the Idaho death penalty procedure to be constitutional.

VII.

Windsor next contends, citing Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), that the imposition of the death penalty upon her conviction for felony murder contravenes the eighth amendment’s prohibition against cruel and unusual punishment.

In Enmund, the United States Supreme Court held that the eighth amendment forbids the imposition of the death penalty against one who neither took life, attempted to take life, nor intended to take life. Id. at 797, 102 S.Ct. at 3376. The evidence introduced in Enmund established that the defendant, Earl Enmund, and two accomplices planned a robbery of the Kersey farm. The plan went awry and, while En-mund waited in the getaway car, his accomplices killed the Kerseys. Although En-mund did not participate in the actual killings, nor intend that the Kersey’s be killed, the Florida Supreme Court concluded that his role in the felony, out of which the murders arose, was sufficient to warrant imposition of the death penalty. The Supreme Court reversed holding that the death penalty could not be imposed on a co-felon who neither killed nor intended that a killing occur. The Court acknowledged that there was sufficient evidence to convict Enmund of the substantive capital offense, but concluded that the imposition of the death penalty in such circumstances was contrary to the eighth and fourteenth amendments. Id. at 788, 102 S.Ct. at 3372.

The Court, recognizing that the death penalty is unique in its severity and irrevo-cability, required that the state must focus on the defendant’s personal intent, character and culpability and not merely that of an accomplice, before the death penalty may be constitutionally imposed. Id. at 798, 102 S.Ct. at 3377.

“Enmund did not kill or intend to kill and thus his culpability is plainly different from that of the robbers who killed; yet the State treated them alike and attributed to Enmund the culpability of those who killed the Kerseys. This was impermissible under the Eighth Amendment.” Id.

Enmund, then, allows the state to impose the death penalty only if it first proves that the defendant either personally participated in the killing or personally intended that a death occur. Windsor asserts that her case falls within the scope of Enmund because the evidence establishes that she neither took life, attempted to take life, nor intended to take life. The record reflects that the trial judge specifically found that Windsor’s participation in the felony was accompanied by the specific intent to cause the death of a human being. Findings of the Court in Considering the Death Penalty Under § 19-2515, Idaho Code, Aggravating Factor No. 3. Windsor contends, however, that the trial judge’s finding is not conclusive. She asserts that the issue of specific intent is an issue of fact which must necessarily be decided by the jury as the trier of fact. She argues that because the jury convicted her of first degree murder in the perpetration of a felony, and not of deliberate and premeditated murder, the jury did not make a finding as to her intent.

Windsor is correct in her assertion that I.C. § 18-4003(d), the felony murder rule, does not include any element of intent. Under that section, a defendant who participates in a felony can be held liable for the death of any person killed during the commission of the felony, regardless of the individual defendant’s intent that a death occur. State v. Paradis, 106 Idaho 117, 125, 676 P.2d 31, 39 (1984). We need not address the issue of whether a jury finding on the issue of intent is constitutionally required, however, because our review of the record in the present case convinces us that the jury did indeed make such a finding.

Windsor’s conviction for felony murder must be read to include a finding that her actions were accompanied by an intent to cause the death of Sterling Grammer. The jury was instructed that in order to return a verdict of first degree murder committed in the perpetration of,, or attempt to perpetrate, a burglary, it had to find the state had proven that Windsor “[w]ith malice aforethought, wilfully, unlawfully, and intentionally murdered Sterling Gene Gram-mer while perpetrating or attempting to perpetrate a burglary....” (Emphasis ours.)

Defense counsel herself told the jury in her closing argument that the key issue in the case was the issue of Windsor’s intent.

“I'm not going to suppose you’re naive enough not to realize that some laws were broken in this case. But I am going to ask you to hold her responsible for her criminal acts and for her intent and not for Donald Fetterly’s.

“Her crime in its majority was being associated with Donald Fetterly. Karla’s presence at the scene of Mr. Grammer’s death is not the key here. Karla’s intent is the issue.”

Unless they found that Windsor knowingly intended to bring about Grammer’s death, she told them, they could not find her guilty of murder.

“You have to decide whether Karla participated in bringing about Sterling Grammer’s death. And remember, you have heard the instructions. It can’t be accidental. You have to decide that Karla knowingly intended to bring about Sterling Grammer’s death or you’re going to have to decide if Donald Fetterly acted on his own.... Now, if you decide that Donald Fetterly acted on his own without Karla’s knowing and intentional assistance, then you can stop, because you are not going to have to go any farther.”

She stated that the theory of murder in the perpetration of a felony was inapplicable absent a finding that Windsor participated in the murder with the specific intent to bring about Grammer’s death.

“The prosecutor has also talked to you, and the judge has instructed you, on the second theory of murder, and given to you instructions. Any murder committed in the perpetration or attempt to perpetrate a burglary. In order for this theory to be applicable, you will of course first have to decide that there was a murder, again, a killing with malice aforethought. That Karla intentionally participated in the murder with specific intent of bringing about Sterling Gram-mer’s death.”

It is clear from the above that the jury’s verdict of guilty on the charge of murder committed in the perpetration of a felony included a finding that Windsor participated in the burglary with the specific intent to bring about the death of Sterling Grammer.

As both the trial judge and the jury found that Windsor intentionally participated in a killing while perpetrating a felony, there is no merit to Windsor’s contention that the imposition of the death penalty was constitutionally impermissible under the mandate of Enmund v. Florida.

VIII.

Windsor alleges that the death penalty was imposed under the one-sided influence of prosecutorial bias, passion and prejudice, and as a result of prosecutorial misconduct. She delineates several instances of alleged misconduct in support of these charges. In particular, she objects to the prosecutor’s filing of a memorandum entitled “Memorandum Regarding Aggravation/Mitigation hearing of Karla Windsor” which she alleges was never served upon the defense.

The record before us on direct appeal is devoid of the factual information necessary to allow us to evaluate Windsor’s allegations. The proper forum for raising allegations of this kind, which are outside the record on appeal, is via a petition for post-conviction relief. I.C. § 19-4901 et seq. See State v. Blackburn, 99 Idaho 222, 579 P.2d 1205.

IX.

Finally, we review the record in this case pursuant to the mandate of I.C. § 19-2827. Whenever the death penalty is imposed this Court is required to conduct an independent review of the record to insure (1) that the death sentence was not imposed under the influence of passion or prejudice; (2) that the evidence supports the judge’s findings as to the statutory aggravating factors; and (3) 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 penalty of death is qualitatively different from that of any other sentence. When the choice is between life and death, the fundamental respect for humanity underlying the eighth amendment to the United States Constitution mandates that we carefully consider both the character and record of the individual offender and the circumstances of the particular offense before we uphold the infliction of the ultimate penalty. Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976). Unlike other sentences, once a capital sentence is executed there is no opportunity for correction.

We begin our analysis by focusing on the crime itself and comparing the degree of involvement of the two participants. The evidence establishes that Sterling Grammer died as a result of multiple stab wounds to the chest. Donald Fetterly admitted that it was he who stabbed Grammer. He stated that he and Windsor were attempting to quiet Grammer who had been taped up and left lying in the bedroom. According to Fetterly, he was holding Grammer down on the bed and Grammer’s head struck his. At that point, Fetterly grabbed a knife lying on the headboard of the bed and began stabbing Grammer. He stated that while he remembers holding the knife to Grammer’s chest he has no memory of actually stabbing Grammer. Fetterly was subsequently convicted of both premeditated murder and felony murder and given the death penalty.

There was never any contention that Karla Windsor actually stabbed Gram-mer. Windsor admitted that she aided Fet-terly in trying to quiet the victim, and that she witnessed the stabbing. She testified that the stabbing occurred so quickly that she was powerless to stop it. The jury found Windsor guilty of felony murder, but acquitted her on the premeditated and deliberate murder charge. Like Fetterly, she was sentenced to death.

Taking into account the differences in their level of participation in the crime, in their background and in the jury verdicts, we conclude that it was disproportionate for Windsor and Fetterly to receive the identical sentence. Our conclusion is consistent with the result reached in the companion cases of State v. Sivak, 105 Idaho 900, 674 P.2d 396 (1983) and State v. Bainbridge, 108 Idaho 273, 698 P.2d 335 (1984), and in the companion cases of State v. McKinney, 107 Idaho 180, 687 P.2d 570 (1984), and State v. Small, 107 Idaho 504, 690 P.2d 1336 (1984). In both sets of cases, the defendant who did the actual killing was given the death penalty while his co-defendant received a life sentence. The difference in their degree of participation in the crime appeared to be the primary factor justifying the disparity in sentences in both sets of cases. McKinney, supra, 107 Idaho at 186, 687 P.2d at 576. While we are not suggesting that the death penalty is always inappropriate in a case where the defendant did not actually wield the murder weapon, we do conclude that this fact when combined with Windsor’s background and individual characteristics serves to make the death penalty excessive in the present case.²

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. See generally United States v. Barker, 771 F.2d 1362 (9th Cir.1985). 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.

We next note Windsor’s cooperation with the authorities both after her arrest and during her incarceration. Windsor and Fetterly gave a joint confession to the arresting officers without the benefit of counsel. They then agreed to accompany the officers to the crime scene and to participate in a video re-enactment of the crime. Two officers from the Canyon County Detention Center testified at the Aggravation/Mitigation Hearing. Both officers stated that Windsor is an ideal inmate. They indicated that she has volunteered to do bookkeeping and laundry, and that she does the Center’s mending. They stated that she is very industrious and spends much of her time cleaning up the Center. In addition, one officer testified to two incidents where Windsor had come to the aid of fellow inmates. In one case, she cared for an inmate who was experiencing acute alcohol and drug withdrawal and notified the staff when the woman had a seizure. In addition to the officers, several other witnesses testified at the sentencing hearing on Windsor’s behalf. The state did not offer any rebuttal witnesses.

Windsor has skills and abilities which indicate she might ultimately be capable of maintaining employment and functioning as a productive member of society. She graduated from high school and attended one semester of college. She has some secretarial skills, and the art work she has completed during her incarceration evinces considerable artistic ability. Additionally, Windsor has experience and training in caring for handicapped individuals. She spent one year caring for a quadriplegic as a home health aid, and another six months caring for two elderly women in the same capacity.

Next, we note that Windsor’s childhood was extremely troubled. The presentence investigation revealed serious problems in the home environment. As a result of these problems, Windsor was removed from her home and made a ward of the court at the age of thirteen. She remained in shelter care throughout her teenage years.

After careful consideration of the entire record, with specific attention to the circumstances of the offense, the character of the offender and the protection of the public interest, we hold that the death penalty was excessive in the instant case. We therefore vacate the death sentence and remand this case for resentencing in accord with the views expressed herein.³

SHEPARD, and BAKES, JJ., concur. SHEPARD, J., concurs in the result in Part IX.

1 . Commentators have argued that the double jeopardy element is no longer as vital a function of the pleading document as it once was since now transcripts of the trial itself are available and more readily relied on to establish what was before the court and jury and ultimately resolved by them, as a bar to future prosecutions. 2 W. LaFave & J. Israel, Modern Criminal Procedure, § 19.2(b), at 446 (1984), citing State v. Smith, 102 Idaho 108, 626 P.2d 206 (1981). "Accordingly, it is argued, ‘protection against successive prosecutions for the same offense ... [should] not require of an accusation any more completeness than the notice function demands.’” 2 W. LaFave & J. Israel, supra, § 19.2(b) at 446, quoting Scott, Fairness in the Accusation of Crime, 41 Minn.L.Rev. 509, 516-17 (1957).

2 . In arriving at our conclusion that the death penalty is excessive in the present case, we have also considered our other cases in which the death penalty has been imposed. Those cases that we have reviewed include:

State v. Fetterly, 109 Idaho 766, 710 P.2d 1202 (1985); State v. Beam, 109 Idaho 616, 710 P.2d 526 (1985); State v. Aragon, 107 Idaho 358, 690 P.2d 293 (1984); State v. Bainbridge, 108 Idaho 273, 698 P.2d 335 (1984); State v. Paradis, 106 Idaho 117, 676 P.2d 31 (1983); State v. Gibson, 106 Idaho 54, 675 P.2d 33 (1983); State v. Sivak, 105 Idaho 900, 674 P.2d 396 (1983); State v. Creech, 105 Idaho 362, 670 P.2d 463 (1983); State v. Major, 105 Idaho 4, 665 P.2d 703 (1983); State v. Mitchell, 104 Idaho 493, 660 P.2d 1336 (1983), cert. den. 461 U.S. 934, 103 S.Ct. 2101, 77 L.Ed.2d 308 (1983); State v. Carter, 103 Idaho 917, 655 P.2d 434 (1982); State v. Olin, 103 Idaho 391, 648 P.2d 203 (1982); State v. Stormoen, 103 Idaho 83, 645 P.2d 317 (1982); State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981); State v. Griffiths, 101 Idaho 163, 610 P.2d 522 (1980); State v. Padilla, 101 Idaho 713, 620 P.2d 286 (1980); State v. Fuchs, 100 Idaho 341, 597 P.2d 227 (1979); State v. Needs, 99 Idaho 883, 591 P.2d 130 (1979); State v. Lindquist, 99 Idaho 766, 589 P.2d 101 (1979); State v. Bradley, 98 Idaho 918, 575 P.2d 1306 (1978); State v. Birrueta, 98 Idaho 631, 570 P.2d 868 (1977); State v. Allen, 98 Idaho 782, 572 P.2d 885 (1977); State v. Ward, 98 Idaho 571, 569 P.2d 916 (1977); State v. Gerdau, 96 Idaho 516, 531 P.2d 1161 (1975); State v. Powers, 96 Idaho 833, 537 P.2d 1369 (1975), cert. den., 423 U.S. 1089, 96 S.Ct. 881, 47 L.Ed.2d 99; State v. Hokenson, 96 Idaho 283, 527 P.2d 487 (1974); State v. Hatton, 95 Idaho 856, 522 P.2d 64 (1974); State v. Standlee, 96 Idaho 165, 525 P.2d 360 (1974); State v. Foley, 95 Idaho 222, 506 P.2d 119 (1973); State v. Beason, 95 Idaho 267, 506 P.2d 1340 (1973); State v. Atwood, 95 Idaho 124, 504 P.2d 397 (1972); State v. Sanchez, 94 Idaho 125, 483 P.2d 173 (1971); State v. Gomez, 94 Idaho 323, 487 P.2d 686 (1971); State v. Dillon, 93 Idaho 698, 471 P.2d 553 (1970), cert. den., 401 U.S. 942, 91 S.Ct. 947, 28 L.Ed.2d 223 (1971); State v. Radabaugh, 93 Idaho 727, 471 P.2d 582 (1970); State v. Rodriguez, 93 Idaho 286, 460 P.2d 711 (1969); State v. Jiminez, 93 Idaho 140, 456 P.2d 784 (1969); King v. State, 93 Idaho 87, 456 P.2d 254 (1969); State v. Gonzalez, 92 Idaho 152, 438 P.2d 897 (1968); State v. Chaffin, 92 Idaho 629, 448 P.2d 243 (1968); Carey v. State, 91 Idaho 706, 429 P.2d 836 (1967); State v. Koho, 91 Idaho 450, 423 P.2d 1004 (1967); State v. Anstine, 91 Idaho 169, 418 P.2d 210 (1966); State v. Gish, 87 Idaho 341, 393 P.2d 342 (1964); State v. Clokey, 83 Idaho 322, 364 P.2d 159 (1961); State v. Burris, 80 Idaho 395, 331 P.2d 265 (1958); State v. Snowden, 79 Idaho 266, 313 P.2d 706 (1957); State v. Buchanan, 73 Idaho 365, 252 P.2d 524 (1953); State v. Owen, 73 Idaho 394, 253 P.2d 203 (1953) (considered only in terms of crime committed and penalty imposed; overruled on substantive law point in State v. Shepherd, 94 Idaho 227, 486 P.2d 82 (1971) ); State v. Pettit, 104 Idaho 601, 661 P.2d 767 (Ct.App.1983); State v. Fenley, 103 Idaho 199, 646 P.2d 441 (Ct.App.1982).

3 . Windsor also objects to certain portions of the presentence report and to the procedure by which the report was obtained. In light of our decision that the death sentence must be reversed, we find it unnecessary to address this issue.