was during the perpetration of a felony because it was committed at the same place where the burglary was committed and also before the burglary was completed. Those facts are obviously distinguishable from the instant case in that the shooting here took place hours after and miles away from the commission of the other felonies. In short, nothing in Fetterly even supports, much less compels, the majority’s conclusion. In sum, there is insufficient evidence to support the jury’s finding that James Pratt committed first degree murder. Because he did not commit a crime for which the death penalty is a potential punishment, this Justice concurs in the result in part XVI(C) (death penalty disproportionate). In light of the above, I express no opinion as to the issues discussed in parts VIII (<HOLDING>), X (consideration of mitigating
holding when it is not clear that the sentencing judge would have imposed the same sentence if a lower sentencing range would have been available remand is required holding that at resentencing the state must present evidence on an enhanced sentencing factor despite having done so at the prior sentencing hearing holding that the boyce evidence was made available to james pratt prior to sentencing holding that disgorgement was appropriate only as to the profits made prior to the time insider information was made public recognizing that sentencing facts are based on the evidence and testimony presented at sentencing under a preponderance of the evidence standard