¶1concurring in result.
¶2I fully concur with the majority opinion except for section VII with which I concur in result. One of the issues presented by this case is whether the trial court is bound by the jury's sentencing recommendation. According to the majority the trial court is so bound. . See Op. at 287 ("In 2002, Indiana's death penalty statute was amended and one of the amendments altered the jury's sentencing determination from a recommendation to one that is binding on the court."). However, I am not so sure this is correct. The amended statute actually provides in pertinent part, "If the jury reaches a sentencing recommendation, the court shall sentence the defendant accordingly." Ind.Code § 85-50-2-9(e). The question of course is what does "accordingly" mean in this context? I agree with the view expressed by Justice Boehm:
[A] sentence imposed "accordingly" means a sentence that takes into account the jury's recommendation and implements it, subject to the constraints imposed by law.... [The instruction to sentence "accordingly" includes the need to set aside a recommendation if it is not supported by evidence and the power to decline to impose death if, after consideration of all aggravating and mitigating factors, including those in the sentencing report, the judge concludes that death is inappropriate.
¶3Helsley v. State, No. 68800-0303-CR-103, 809 N.E.2d 292, 307, 2004 WL 1153052 (Ind.2004) (Boehm, J., concurring in result) (footnote omitted). In this case, believing *292it had no choice other than to accept the jury's death sentence recommendation, the trial court lamented, "quite frankly, the Court would be inclined to override the jury if it could." Tr. at 173. If indeed the trial court concludes that a sentence of death is not appropriate, then it seems to me that even under the amended statute, the trial court is obligated to impose a term of years or life imprisonment without parole.
¶4For the reasons the majority explains, I agree this cause should be remanded for a new penalty and sentencing phase of trial. However, I am persuaded that should a new jury return a recommendation of death, the trial court is not necessarily bound thereby. Therefore I concur in result with this portion of the majority opinion. In all other respects I fully coneur.
¶5BOEHM, J., concurs.