¶1concurring in result and dissenting.
¶2I vote to affirm these convictions, set aside the sentence of death, and order new jury and judge death sentencing hearings or the imposition of a term of years for the murder conviction. The judge's sentencing order should be set aside because there is need for a specific clarification with regard *1066to the question of whether or not he did consider the highly irrelevant and prejudicial testimony of Mary Hillard when making the death decision. I cannot agree with the majority opinion wherein it concludes that the defendant in an Indiana capital case is not prejudiced when a judge receives such testimony at a sentencing hearing, and the judge then sentences the defendant to death, making no mention of having considered such irrelevant and highly prejudicial matter. When received by a sentencing jury, such matter creates an unacceptable risk that the jury will impose the death penalty on an arbitrary and capricious basis. Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). When an appellate court is satisfied that such matter has been received by a sentencing judge and is not satisfied that it played no role in the decision to give the death penalty, I would adopt the procedure of remanding the case to the trial judge to amend his written statements supporting the consideration of aggravating and mitigating circumstances to clarify the picture.
¶3A remand is particularly appropriate here because the judge expressly ruled at the sentencing hearing that such testimony of Mary Hillard was not irrelevant. In the aftermath of that ruling, the absence of any mention in the judge's written findings of Mary Hillard's extreme despondency does not provide a satisfactory indication that he did not consider it.
¶4I also find that I am unable to agree with the majority of the Court wherein it concludes that the Eighth Amendment protection against the death sentencing use of irrelevant and prejudicial victim impact information pronounced by the United States Supreme Court in Booth should in some manner be deemed waived for the purposes of review because of the lack of a contemporaneous objection by defense counsel to the admission of such information. Because of the special character of the death penalty, the unique problems in implementing it, and the great need to ensure its integrity, I would not employ the waiver for failure to object at all in resolving constitutional claims against the death penalty made in the first direct appeal or in any motion to correct errors immediately preceding it. Such a finding of waiver in non-death penalty areas is seldom the final resolution of the appellate claim and is most often the prologue to a low-serutiny, truncated form of review of the appellate claim on the merits. That level of serutiny I find intolerable when reviewing the propriety of the death penalty. If a finding of waiver is not followed by such a lesser review process, but a full-blown one instead, then I see no purpose in maintaining the waiver, as it would be no more than pretense.
¶5The jury's recommendation of death cannot stand here because one of the two aggravating circumstances upon which it is based is non-existent. Despite the fact that appellant does not complain, the defect is apparent. The second aggravating circumstance is based upon 1.0. 85-50-2-9(b)(7), which provides:
The defendant has been convicted of another murder.
¶6Beyond the legitimate questions of what constitutes a conviction and what constitutes a murder for the purposes of the statute, is the question most pertinent here, namely, the question of when the conviction constituting the aggravating circumstance must occur in relation to the charged murder. The dominant character of all of the aggravating circumstances set forth in the statute is their close proximity in time and space to the criminal conduct constituting the charged murder. They include the state of mind of the defendant at the time of the murder, the means by which the murder is committed, the cireum-stances and condition of the murder victim, and the circumstances and conditions of the defendant at the time of the crime. The aggravating circumstance in I.C. 85-50-2-9(b)(7) falls in the last-mentioned category. It identifies a condition or quality of the defendant at the time of the crime, namely, that at the time of the decision to kill, the defendant had already experienced detection and arrest, had been subjected to the judicial processes including conviction for murder, and was undeterred by such experiences. It is apparent that appellant Cole*1067man does not fall in this class of persons, as at the time he committed this murder, he had not yet been convicted in Ohio of the two murders alleged. Upon this error, apparent on the record, I would include in the remand order to Judge Maroc that the sentence of death be ordered, if at all, solely upon the basis of the first aggravating circumstance as identified in the majority opinion.