State v. Scroggins , 110 Idaho 380 ( 1986 )

HUNTLEY, Justice.

Michael Shawn Scroggins appeals from a conviction of first-degree murder and attempted rape of thirteen-year-old Mondi Lenten. Scroggins was sentenced to death for first degree murder and received a fixed sentence of ten years for the attempted rape to run concurrent with the death sentence. Scroggins’ co-defendant, Albert Beam, was convicted of first-degree murder and rape and was sentenced to death for the murder and to a fixed 30 year term for the rape. In State v. Beam, 109 Idaho 616, 710 P.2d 526 (1985), this Court affirmed Beam's conviction and sentence.

Scroggins appeals his conviction arguing that the district court erred in using two separate juries, one for Scroggins and one for Beam, in a simultaneous trial. He also claims that the trial court improperly admitted into evidence certain state exhibits, erroneously refused to grant a new trial based upon new evidence and failed to properly instruct the jury.

Scroggins also appeals his death sentence challenging the constitutionality of Idaho’s death sentencing procedure and contending that the trial court’s findings in support of the death penalty were erroneous. He further maintains that the trial court imposed the death penalty in an arbitrary and capricious manner and that the sentence imposed was excessive and disproportionate.

I. STATEMENT OF THE FACTS

Michael Scroggins stood charged by Information of the following crimes:

COUNT III

That MICHAEL SHAWN SCROGGINS on or about the 8th day of July, 1983 in the County of Canyon and State of Idaho, then and there being, did then and there wilfully, knowingly, intentionally, unlawfully, feloniously and with malice aforethought and premeditation, kill a human being, to wit: Mondi Jeanine Lenten, by then and there causing the said Mondi Jeanine Lenten to be drowned, thereby mortally wounding said Mondi Jeanine Lenten, from which wounds said Mondi Jeanine Lenten died on or about the 8th day of July, 1983, in the County of Canyon and State of Idaho.

All of which is contrary to Idaho Code Sections 18-4001, 18-4003(a), and 18-4004 and against the power, peace and dignity of the State of Idaho.

COUNT IV

That MICHAEL SHAWN SCROGGINS on or about the 8th day of July, 1983 in the County of Canyon and State of Idaho, then and there being, did then and there wilfully, knowingly, intentionally, unlawfully, feloniously, forcibly and against the consent of Mondi Jeanine Lenten, not the wife of said defendant accomplish an act of sexual intercourse with said female and she was prevented from resistance by threats of immediate and great bodily harm, accompanied by an apparent power of execution on the part of the said defendant.

The Information also alleged that Scrog-gins, “did wilfully, knowingly, intentionally, unlawfully and feloniously commit those acts charged” in Counts III and IV “of the Information on file herein through the carrying, displaying, using, threatening or attempting to use a firearm or other deadly weapon, to wit: a knife.”

Scroggins’ co-defendant Beam took the stand as a state witness and testified that Scroggins had raped the victim and that after Scroggins had raped the victim, he, Beam, had raped her. Beam also testified that Scroggins took the victim to a creek and there began pushing her head under water. According to Beam, Scroggins then slit the victim’s throat. Beam claimed that because he, Beam, could not stand the sight of blood, he alone pushed her head under water until she was drowned.

Scroggins also testified at his own trial. He acknowledged that he had accompanied Beam and the victim to the creek and that at one point, he had handcuffed her. He conceded that the knife used to cut her throat belonged to him but said that he did not cut her. He admitted that he was present in the vicinity when Beam raped the victim, but said that he did not observe the act. He testified that he, Scroggins, had begun to mount the victim but had not proceeded to have intercourse with her. The morning after the crimes were committed Scroggins went to the police station and reported them. Although the officers did not at first believe Scroggins’ story, he convinced them to believe him and took them to the scene of the crime.

As the judge noted at the time of sentencing, the Scroggins’ jury, by its verdict, did not believe Beam’s testimony. Scrog-gins’ jury found that Scroggins did not use a knife, that he did not commit rape but was guilty of attempted rape, and that he did not directly commit the crime of murder but rather aided and abetted the commission of a felony-murder, a killing committed during the perpetration of an inherently dangerous felony, which in this case, was attempted rape.

II. DID THE TRIAL COURT DEPRIVE SCROGGINS OF DUE PROCESS BY JOINTLY TRYING HIM WITH HIS CO-DEFENDANT AND BY USING SEPARATE JURIES SITTING IN THE SAME COURTROOM?

Beam testified before his own jury and also testified before Scroggins’ jury. Scroggins testified before his own jury only and did not testify before Beam’s jury. Scroggins argues that the joint trial procedure employed here effectively denied him due process of law particularly in light of the testimony of one Sandra Wahlen. Wahlen, Beam’s fiance, took the stand and began to testify as to statements made to her by Beam. Scroggins’ attorney requested that Scroggins’ jury be excused from the courtroom during Wahlen’s testimony because the prosecutor’s questions might elicit answers which would violate the Bruton rule. Beam’s counsel similarly objected. The objection was sustained as to Scroggins but was overruled as to Beam. The trial court then removed the Scroggins’ jury and the State pursued direct examination of Wahlen before the Beam jury only. Wahlen testified that on the evening of the murder, Beam told her, “I think I killed somebody.” (Emphasis added). Scrog-gins’ attorney considered that testimony to be inculpatory as to Beam but exculpatory as to Scroggins. Therefore, Scroggins’ attorney requested that that portion of Wahlen’s testimony be read back to the Scrog-gins’ jury. The trial court did not grant that request but instead permitted the state to again call Wahlen to the stand and testify before the Scroggin’s jury. When she resumed testimony, Wahlen stated that Beam had told her, “I think we killed somebody.” This testimony was, of course, inculpatory as to both Beam and Scroggins. Scroggins insists that Wahlen’s testimony violated the rule announced in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In Bruton, in a joint trial of the petitioner and his accomplice, the prosecutor introduced the accomplice’s confession into evidence through the testimony of a postal inspector. The accomplice, however, did not testify. The confession explicitly incriminated the petitioner. He objected, claiming a denial of confrontation. The district court cautioned the jury that the confession was admissible only against the accomplice. The Court of Appeals affirmed. On certiorari, the Supreme Court reversed. It found a denial of the right of confrontation notwithstanding the trial court’s cautionary jury instruction. In the present case, since the accomplice, Albert Beam, in fact testified at Scroggins’ trial, the Bruton situation was not present. In Bruton, the petitioner was unable to confront his accomplice because the accomplice did not testify. In the present case, Beam testified before Scroggins’ jury and Scroggins had the opportunity to cross-examine him as to any statements presented through the testimony of other witnesses, such as Ms. Wahlen. Had Beam not testified in Scroggins’ trial, our determination would be different, the result being that Ms. Wahlen's testimony would not have been admissible in Scroggins’ trial. However, since Beam testified at Scroggins’ trial, Scroggins was not denied the right of confrontation.

While we conclude that the use of the dual jury system in the present case does not pose grounds for reversal, the potential for serious error in a complicated case may caution against its use.

III. DID THE TRIAL COURT ERR IN ADMITTING INTO EVIDENCE PHOTOGRAPHS OF THE DECEASED’S BODY?

As part of the state’s case-in-chief, Dr. Thomas Donndelinger, a pathologist, was called to testify as to the cause of death, alleged in the Information to be drowning. During the course of the examination, the state presented several photographs of the decedent’s body, which photographs depicted bruises and abrasions. The prosecutor asked Dr. Donndelinger whether the photographs would assist him in describing his observations and in articulating medical conclusions. When the state moved to admit the photographs, Scroggins' counsel objected, claiming that the photographs were highly prejudicial and designed to inflame the jury. With regard to the photographs, Dr. Donndelinger’s testimony established the following: (1) Exhibit 64 depicted a photograph of the wound beneath the victim’s chin; (2) Exhibit 65 was a close-up of the left side of the wound; (3) Exhibit 66 was a close-up of the wound under the upper part of the neck; (4)Exhibit 67 was another close-up of the right side of the wound. The prosecutor’s questions for Dr. Donndelinger were not based on his observations of the photographs but of his observations of the actual throat wound. Scroggins contends therefore that the photographs were not introduced to assist Dr. Donndelinger in describing the wounds but rather to inflame the jury’s passion.

Where allegedly inflammatory evidence is relevant and material as to an issue of fact, the trial court must determine whether the possible prejudice that might inure to the defendant by admission of the evidence is outweighed by its probative value. State v. Wilson, 93 Idaho 194, 196-97, 457 P.2d 433, 435-36 (1969). The determination of whether or not to admit evidence challenged on the ground that it is more prejudicial than probative is within the trial court’s discretion. State v. Abel, 104 Idaho 865, 870, 664 P.2d 772, 777 (1983). The facts of the present case present a close question as to whether the trial court abused its discretion in admitting the evidence. Clearly, the photographs were somewhat prejudicial; and, in retrospect it is apparent that the photographs were not, in fact, used by the prosecution for the purpose for which they were ostensibly admitted. Nonetheless, we cannot conclude that the trial court abused its discretion in admitting the photographs.

By Information, the state sought to enhance the murder charge by an allegation that a knife had been used in its commission. Even though the cause of death in the murder charge itself was drowning, it is clear that the victim had had her throat slit and that the throat slitting had either preceded the drowning or had happened at the same time. Hence, evidence establishing that the victim had her throat slit was relevant to the murder charge and the accompanying allegation that the defendant had used a knife. Although we are somewhat troubled by the fact that the prosecutor’s purported reason for admitting the photographs was to assist Dr. Donndelinger with his testimony, and in retrospect, it appears that the photographs may not have been used for that purpose, they were nonetheless relevant evidence and their admission is not cause for reversal.

IV. DID THE TRIAL COURT ERR BY DENYING SCROGGINS’ MOTION FOR A NEW TRIAL BASED UPON SCROGGINS’ REPRESENTATION THAT BEAM HAD NOT TOLD THE WHOLE TRUTH AT TRIAL?

After trial, while Scroggins was incarcerated on death row, Beam delivered a note to Scroggins. In the note, which Scroggins’ counsel attached to the motion for a new trial, Beam stated, “Please forgive me Shawn I was worry [sic] by not telling the truth and about you as well.” Scroggins filed for a new trial based upon his contention that the note was evidence that Beam’s testimony had been perjured. The motion was denied without prejudice.

I.C. § 19-2406 provides in relevant part: Grounds for new trial. — When a verdict has been rendered against the defendant the court may, upon his application, grant a new trial in the following cases only:

7. When new evidence is discovered material to the defendant, and which he could not with reasonable diligence have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly-discovered evidence, the defendant must produce at the hearing in support thereof the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits the court may postpone the hearing of the motion for such length of time as, under all the circumstances of the case, may seem reasonable.

I.C.R. 34 provides:

The court on motion of a defendant may grant a new trial to him if required in the interest of justice____

The question of whether the interest of justice requires a new trial under the circumstances of a particular case is directed to the sound discretion of the trial court; and the trial court’s decision thereon will not be disturbed absent an abuse of that discretion. State v. Olin, 103 Idaho 391, 399, 648 P.2d 203, 211 (1982). Hence, our inquiry here must be whether the trial court should have granted a new trial in the interest of justice based upon the note from Beam to Scroggins. Scroggins contends that three inferences must be drawn from Beam’s statement: (1) that Beam did not tell the truth in court; (2) that Beam did not tell the entire truth about his own participation; and (3) that he lied about Scroggins’ participation. The state, on the other hand, claims that those inferences should not be drawn because the note does not state that Beam lied at trial, rather, it merely relates that he did more that night than he said he did. The state contends that the only proper inference is that Beam meant that he, Beam, was more culpable than he had previously admitted, but that Scroggins was no less culpable.

The circumstances giving rise to the motion for a new trial are troubling. In fact, the note is ambiguous and, indeed, both the inferences urged by the defendant and the inference urged by the prosecution could be drawn from it.

In Larrison v. United States, 24 F.2d 82 (7th Cir.1928), the court held that where a party contends that a government witness falsly testified at trial, the following elements must be met: (1) that “[t]he court is reasonably well satisfied that the testimony given by the material witness is false;” (2) “[t]hat without it the jury might have reached a different conclusion;” (3) “[t]hat the party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after the trial.” Larrison, 24 F.2d at 87-88 (emphasis omitted). Although the circumstances of the instant case do not fall neatly within the purview of I.C. § 19-2406(7) above, under the holding of Larrison, it would seem that in appropriate circumstances, where a defendant submits an affidavit by a government witness in which the witness recants his testimony and specifies in what ways he dishonestly testified and in what ways he would, if given the opportunity to testify again, change that testimony and where a defendant makes a showing that such changed testimony may be material to a finding of his guilt or innocence, a new trial should be held. In this case the note is subject to multiple inferences and does not constitute an affidavit. At this point, the record is simply not sufficiently developed to permit this Court to conclude that the trial court abused its discretion in denying the motion.

V. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY FAILING TO INSTRUCT THE JURY REGARDING ACCOMPLICE TESTIMONY?

After trial, Scroggins moved for acquittal or, in the alternative, for a new trial on the grounds that the trial court committed reversible error by failing to instruct the jury with regard to accomplice testimony. The court denied the motion.

Scroggins contends that the only testimony implicating him in the homicide came from his co-defendant, Albert Beam.

I.C. § 19-2117 provides:

A conviction cannot be had on the testimony of an accomplice, unless he is corroborated by other evidence, which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration is not sufficient, if it merely shows the commission of the offense, or the circumstances thereof.

(Emphasis added.)

Scroggins contends that Beam’s testimony was not corroborated by other evidence as required by I.C. § 19-2117. In response, the state contends that sufficient circumstantial evidence was introduced at trial so as to corroborate Beam’s testimony. Moreover, the state contends that Scroggins’ counsel’s failure to object to the court’s failure to give an accomplice instruction waived any right Scroggins had to such an instruction. The state acknowledges that fundamental error may be raised for the first time on appeal but suggests that matters relating to the credibility of witnesses do not raise questions of fundamental error and that accomplice corroboration instructions are concerned only with witness credibility.

In State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981) this Court held:

Death is clearly a different kind of punishment from any other that may be imposed, and I.C. § 19-2827 mandates that we examine not only the sentence but the procedure followed in imposing that sentence regardless of whether an appeal is even taken. This indicates to us that we may not ignore unchallenged errors. Moreover, the gravity of a sentence of death and the infrequency with which it is imposed outweighs any rationale that might be proposed to justify refusal to consider errors not objected to below. Other jurisdictions similarly do not allow technical appellate rules to preclude a comprehensive review of those cases where a sentence of death has been imposed.

Id. at 410-11, 631 P.2d 192-93 (citations omitted).

We disagree with the state’s assertion that this Court should not address the issue of the court’s failure to instruct the jury as to accomplice testimony. Assuming, without deciding, that such an instruction should have been requested by counsel and, in the absence of such a request, the trial court should have so advised the jury, we deem any failure in this regard to be harmless. Scroggins’ own testimony at trial was sufficient to corroborate portions of Beam’s testimony. At trial, Scroggins admitted that he assisted Beam in taking the victim to the creek, that he, Scroggins, had handcuffed the victim, that Beam had used Scroggins’ knife, that he, Scroggins, had attempted to rape the victim and that he had been in the vicinity when Beam had, in fact, raped and murdered the victim.

Mere presence at the place of a crime or acquiescence in its commission, without participation, does not constitute a crime. State v. Bradford, 683 P.2d 924, 929 (Mont.1984); State v. Hystad, 36 Wash.App. 42, 671 P.2d 793, 798 (1983); Morrison v. State, 518 P.2d 1279, 1281 (Okl.Cr.1974). Some aiding, abetting or actual encouragement on the part of the person charged is essential to make that person an accomplice. State v. Brooks, 103 Idaho 892, 904, 655 P.2d 99, 111 (Ct.App.1982). “To be an aider and abettor one must share the criminal intent of the principal; there must be a community of purpose in the unlawful undertaking.” State v. Duran, 86 N.M. 594, 526 P.2d 188, 189 (1974) cert. denied, 86 N.M. 593, 526 P.2d 187 (1974); State v. Boast, 87 Wash.2d 447, 553 P.2d 1322, 1327 (1976). In a prosecution for felony-murder, the state is relieved of the burden of proving that a defendant had the specific intent to kill and instead need only prove that all individuals charged as principals had the specific intent to commit the predicate felony. Scroggins was convicted of aiding and abetting a felony murder, wherein the underlying felony was rape or attempted rape. Scroggins admitted to facts permitting the jury to conclude that he had attempted to rape the victim. “[A]n accomplice, having agreed to participate in a criminal act, runs the risk of having the primary actor exceed the scope of the preplanned illegality.” State v. Davis, 101 Wash.2d 654, 682 P.2d 883, 886 (1984). Hence, although Scroggins’ testimony did not corroborate Beam’s version of the facts, it was sufficient to permit a finding that Scroggins was connected with the commission of the offense. Therefore, the district court’s failure to give the accomplice instruction, even if it were erroneous, was harmless and hence does not give cause for reversal.

VI. IS IDAHO’S CAPITAL SENTENCING PROCESS UNCONSTITUTIONAL BECAUSE OF ITS FAILURE TO REQUIRE THAT A JURY, AND NOT THE JUDGE, IMPOSE A SENTENCE OF DEATH?

In State v. Sivak, 105 Idaho 900, 906 674 P.2d 396, 402 (1983) and State v. Creech, 105 Idaho 362, 373-74, 670 P.2d 463, 474-75 (1983), this Court considered this issue and concluded that Idaho’s capital sentencing scheme does not violate the Idaho and Federal Constitutions. We continue to adhere to that precedent.¹

VII. WAS THE DEATH SENTENCE PROPERLY IMPOSED?

Pursuant to the provisions of I.C. § 19-2827 we are required to review the trial court’s decision to impose the death sentence in this case. I.C. § 19-2827(a), (b) and (c) provide:

(a) Whenever the death penalty is imposed, and upon the judgment becoming final in the trial court, the sentence shall be reviewed on the record by the Supreme Court of Idaho.

(b) The Supreme Court of Idaho shall consider the punishment as well as any errors enumerated by way of appeal.

(c) With regard to the sentence the court shall determine:

(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor, and

(2) Whether the evidence supports the judges finding of a statutory aggravating circumstance from among those enumerated in section 19-2515, Idaho Code,, and

(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

Our review of a death sentence is qualitatively different than our review of an ordinary criminal sentence which is subject to review in this Court on an abuse of discretion standard. E.g., State v. McPhie, 104 Idaho 652, 662 P.2d 233 (1983); State v. Wilson, 100 Idaho 725, 604 P.2d 739 (1970); I.C. §§ 19-2515, 19-2827. However, with a death sentence I.C. § 19-2827(a) requires this Court to make an independent review of the sentence on the record, and the abuse of discretion standard which otherwise applies in criminal sentencing reviews is not applicable.

For reasons set forth below, we conclude that the sentence of death is excessive and disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

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.

In the seminal death penalty case of Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), the United States Supreme Court recognized that the death penalty is unique in its severity and irrevocability, and 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. Hence, while all principals in the commission of a crime may be charged identically, regardless of who committed which act, for purposes of sentencing, the court must focus on the particular acts of the individual defendant.

In Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) the United States Supreme Court underscored the fact that the death penalty is qualitatively different from that of any other sentence. The Court emphasized that a reviewing court must carefully consider the circumstances of the particular offense and the record of the individual offender. Clearly, Scroggins was morally culpable and should be severly punished. However, keeping in mind the jury verdicts in Scrog-gins’ case and Beam’s ease, we are reminded that the Scroggins’ jury’s verdict reflected that Scroggins’ level of participation in the crime did not rise to the same level as Beam’s. According to the jury verdicts, Beam alone did the actual killing. According to the jury verdict, Scroggins did not personally commit the crime of murder but aided and abetted the commission of a felony murder. Scroggins’ jury returned its verdict form leaving the section charging Scroggins with premeditated and deliberate murder unsigned. Beam raped the victim while Scroggins went only so far as to attempt rape but did not complete the act. According to the jury verdict, Scroggins did not cut the victim’s throat. We also note that Scroggins not only reported the crime to the police but insisted upon taking them to the crime scene even when they disbelieved his story. In State v. Windsor, 110 Idaho 410, 716 P.2d 1182 (1985) we acknowledged that where co-defendants are each charged with and convicted of first degree murder and where they receive disparate sentences, such disparity may be justified where one defendant did the actual killing while the other did not, and where, because of their respective levels of criminal involvement, one defendant may be deemed more culpable than the other. It would seem that in this instance, the trial court’s focus was on the crime and not on the personal culpability of this particular defendant as that culpability is reflected by the jury verdict and the evidence adduced at trial upon which the verdict was clearly based.

As the presentence report indicates, Scroggins does not have a history of violent criminal conduct. While it is true that he has been under the supervision of the Department of Health and Welfare for a number of years, that supervision was necessary because of his particularly unstable, unnurtured, and inadequate upbringing. Scroggins was eighteen at the time of the crime. His mental age was 13.8 years. Because of his chaotic and troubled childhood, Scroggins was and is under tremendous psychological pressure and has failed to develop mature responses to stressful situations.

In Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) the United States Supreme Court reversed a judgment imposing a death sentence on sixteen-year-old Monty Lee Eddings. In reaching that result the Court instructed:

The trial judge recognized that youth must be considered a relevant mitigating factor. But youth is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage. Our history is replete with laws and judicial recognition that minors, especially in their earlier years, generally are less mature and responsible than adults. Particularly “during the formative years of childhood and adolescence, minors often lack the experience, perspective, and judgment” expected of adults. Bellotti v. Baird, 443 U.S. 622, 635 [99 S.Ct. 3035, 3044, 61 L.Ed.2d 797] (1979).

Even the normal 16-year-old customarily lacks the maturity of an adult. In this case, Eddings was not a normal 16-year-old; he had been deprived of the care, concern and paternal attention that children deserve. On the contrary, it is not disputed that he was a juvenile with serious emotional problems, and had been raised in a neglectful, sometimes even violent, family background. In addition, there was testimony that Eddings’ mental and emotional development were at a level several years below his chronological age. All of this does not suggest an absence of responsibility for the crime of murder, deliberately committed in this case. Rather, it is to say that just as the chronological age of a minor is itself a relevant mitigating factor of great weight, so must the background and mental and emotional development of a youthful defendant be duly considered in sentencing.

We are not unaware of the extent to which minors engage increasingly in violent crime. Nor do we suggest an absence of legal responsibility where crime is committed by a minor. We are concerned here only with the manner of the imposition of the ultimate penalty: the death sentence imposed for the crime of murder upon an emotionally disturbed youth with a disturbed child’s immaturity-

Eddings, 455 U.S. at 115-16, 102 S.Ct. at 877-78.

Although unlike Eddings, Scroggins was not a minor at the time of the criminal act, at eighteen years of age he had barely reached the age of majority. We cannot ignore the Court’s admonition that “youth is more than a chronological fact.” Just as Eddings was not a normal sixteen-year-old, Scroggins was not a normal eighteen-year-old. Like Eddings, Scroggins had been deprived of the “care, concern and paternal attention that children deserve.” Also like Eddings, Scroggins’ mental and emotional . development were at a level well below his chronological age. There is little question that Scroggins is deserving of moral blame and lengthy incarceration, but in our view he should not be put to death.

In sentencing Scroggins, the judge remarked:

I have agonized over this for a long time because of the jury’s finding, because of the fact that maybe you did not directly commit that crime. But, I have resolved in my mind maybe why you did not directly commit that crime, that your criminal culpability was every bit as great but nevertheless, because you are eighteen years of age and you do not have a prior criminal record, there may be sound legal argument for a fixed life sentence, but going over that and giving long consideration to it, in my judgment I believe that a fixed sentence is wrong, even though the jury has decided this matter in the manner in which they have.

The reason I feel it is wrong is because the record is clear as we have talked about it. Extensive efforts have been made to treat and rehabilitate you and there has been no measurable success. The psychological evaluation that was requested by both counsel and yourself has described you as being unpredictable and dangerous to others. The home environment in which you have been raised and with the history that exists here, in my judgment if you were placed in a penitentiary setting, your condition could only worsen. Your self-image would deteriorate. The overall test profile according to the medical authorities, “It is indicative of a prepsychotic personality with a predisposition towards paranoid schizophrenia.” Again, it would be a violation of this court’s conscience to believe that effective treatment is available to you in the penitentiary setting, that if you were given a fixed life sentence, even if it were available, that the necessary funds would be expended by the state to remedy that situation by placing you in a different environment and with the constant medical treatment and counseling that would be necessary.

The nature of the crime, your age, your intelligence level being in the dull-normal range, your physical, mental appearance, your ingrained sexual fantasies, your abnormal behavior would assure, in my judgment, your being victimized in the penitentiary by other inmates unless you were kept confined and away from other inmates, in and of itself a source of cruel and unusual punishment because of the constant confinement.

To put a person in the penitentiary that realistically is incapable of being rehabilitated on any subjective criteria that we have, would likewise victimize, in my judgment, society as well as the victim in this case inasmuch as the cost[s] of warehousing a person [and] institutionalizing them are prohibitive when there is no light at the end of the tunnel.

The court thereby expressed concern that Scroggins, if imprisoned, would not receive the type of medical and psychiatric care he would need in order to be rehabilitated because the state would not appropriate sufficient funds. Assuming for purposes of this discussion that the state refuses to properly fund its rehabilitative program, that would not be a reason to choose death over life. There is simply no authority for the proposition that a state's failure to expend adequate funds for inmate services is a factor to be considered in imposing the death penalty.

Our holding today reflects our concern that the death penalty only be imposed in cases where its imposition is unmistakably warranted. This is not such a case. We therefore affirm the conviction, vacate the sentence and remand for re-sentencing.

DONALDSON, C.J., and BAKES, J., concur.

1 . The author of this opinion continues to adhere to the views expressed in his Sivak and Creech dissents.