ON DENIAL OF PETITIONS FOR REHEARING
HUNTLEY, Justice.This appeal has been protracted and no doubt agonizing to those directly involved. We have heard oral argument on several occasions and have been presented with more than one troubling issue requiring resolution. The pertinent facts are these: Charles I. Fain was convicted of first degree murder, lewd and lascivious conduct with a minor and first degree kidnapping of nine-year-old Daralyn Johnson. He was sentenced to death. Fain’s appeal first came before this Court in March of 1985, for automatic review pursuant to I.C. § 19-2827 and upon several claims of error regarding both the conduct of the trial and the imposition of the death sentence. In August of 1985, this Court ordered further briefing on the single issue of whether Fain was denied due process and a fair trial as a result of the state’s failure to preserve certain swabs of bodily fluid taken from the victim. After hearing oral argument thereon in November 1985, this Court suspended Fain’s appeal to enable a post-conviction proceeding to take place, and to raise and resolve certain factual issues regarding Fain’s claim that potentially exculpatory evidence was destroyed by the State by its failure to preserve certain swabs of bodily fluid taken during the autopsy of the victim.
The trial court issued findings on remand in an order on petition for post-conviction relief in March 1987, finding that tests of Fain established conclusively that Fain was a Type A secretor. Therefore, the swabs might have been exculpating had they disclosed semen from other than a Type A secretor. On remand, the trial court also found that Dr. Droulard, a pathologist who performed an autopsy on the victim, inadvertently discarded the swabs while assisting in the preparation of a sex crime kit. Fain argues that his due process right to fair trial was impacted as a result of the State’s failure to preserve potentially exculpatory evidence. We respect that argument, particularly in view of the weighty evidence used to convict Fain and affirm the conviction. We discuss each of his assignments of error in turn.
I. THE PRELIMINARY HEARING
Fain argues that the evidence adduced at the preliminary hearing was insufficient to permit the magistrate to bind him over for trial. He claims that while the State presented evidence to establish that a crime had been committed, it totally failed to introduce evidence linking him to the crime. At a preliminary hearing, the state must prove only that a crime was committed and that there is probable or sufficient cause to believe that the defendant committed it. I.C.R. 5.1(b). State v. Gibson, 106 Idaho 54, 675 P.2d 33 (1983). This test may be met by means of circumstantial evidence supportive of reasonable inferences on the part of the magistrate, and a reviewing court may not substitute its judgment for that of the magistrate as to the weight of the evidence. Rideout v. Superior Court, 67 Cal.2d 471, 62 Cal.Rptr. 581, 432 P.2d 197 (1967).
In reviewing the testimony adduced at the preliminary hearing, we conclude that there was competent evidence, including reasonable inferences therefrom, to *85show probable or sufficient cause that the crimes charged had been committed and that the defendant was guilty of their commission. First, an automobile matching the description of Fain’s uniquely painted automobile was seen in the vicinity of the abduction prior to the victim’s disappearance. It matched the description of the automobile in which the child was allegedly abducted. Also, the child’s abductor was described as having “long, brown hair and a beard,” which description matched that of the defendant. John Michael Thompson, an acquaintance of Fain, testified that Fain had asked him, “What would you say if I told you I killed someone?” Thompson also testified that Fain had threatened him. The magistrate concluded that such a threat indicated a guilty state of mind. A sample of Fain’s pubic hair was found to be similar to pubic hairs found in the victim’s panties, and evidence was presented that Fain’s shoe tread could have made a footprint found and photographed near where the victim’s body was found. While none of the above factors standing alone would be sufficient to permit the magistrate to hold Fain to answer, the cumulative evidence supports the finding that there was probable cause sufficient to charge Fain with the crimes. Hence, the magistrate did not err in holding Fain to answer and the district court properly upheld the magistrate’s ruling.
II. ADMISSION OF CELLMATES’ TESTIMONY
Fain contends that the trial court erred in admitting the testimony of Bobby Roberson and Ricky Lee Chilton, two inmates who shared a cell with Fain. Fain’s assignment of error is based on his contention that Roberson and Chilton had been placed in his cell by the State in order to elicit incriminating information from him. Clearly, admission of statements made by an imprisoned defendant who is represented by counsel would violate the sixth amendment if the statements are deliberately elicited by governmental agents. Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980); and, State v. LePage, 102 Idaho 387, 630 P.2d 674 (1981). However, the sixth amendment does not forbid admission of an accused’s statements to a jailhouse informant who, placed in close proximity to the accused, does not make any effort to stimulate conversations regarding the crime charged. Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986).
In Kuhlmann, a jailhouse informant was placed in close proximity to the defendant and instructed to ask no questions but to listen for information regarding the crime with which defendant was charged. The informant listened and surreptitiously wrote notes detailing what defendant said. The Supreme Court held there was no sixth amendment violation, as “the defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks.” Kuhlmann, 477 U.S. at 459, 106 S.Ct. at 2630. (Emphasis added.) See also, Lightbourne v. Dugger, 829 F.2d 1012 (11th Cir. 1987).
Fain was in custody and under indictment at the time Roberson and Chilton were in his cell. He was also represented by counsel. However, at a mid-trial suppression hearing, Roberson and Chilton both testified that they were not informants collecting information for the State, that they were in no way induced by payment or other favorable treatment to elicit information for the State, and that they were not acting on any government instructions to obtain evidence. On the basis of that evidence, the trial court concluded that Roberson’s and Chilton’s testimony should not be suppressed in that neither man was an informant collecting information for the State. The trial court concluded that any incriminating statements which Fain had made to his cellmates were not the result of any deliberate action by the government or its agents. The court’s ruling on the suppression motion was clearly grounded in his belief of Roberson’s and Chilton’s accounts of the circumstances under which Fain spoke to them in his cell. Because of *86the trial judge’s ruling denying the suppression motion, we may infer that he found Roberson’s and Chilton’s testimony at the suppression hearing credible. The determination of whether a witness is credible is one of fact, and in the context of a suppression hearing, is to be made by the trial court. Jones v. Superior Court, 4 Cal.3d 660, 94 Cal.Rptr. 289, 483 P.2d 1241 (1971).
Fain also contends that the trial court erred in refusing to require Bobby Roberson to take a psychiatric or a polygraph test. Fain claims that Roberson had a history of mental problems and that, since Fain’s conviction was obtained almost entirely on the basis of circumstantial evidence, the issue of the admissibility of Roberson’s testimony was not a minor matter but a major issue and had the trial court required Roberson to take a psychiatric or polygraph test, Fain would have attempted to introduce the results of the test in order to show that Roberson had a motivation, reason, tendency or predisposition to lie. There is no authority for such a procedure and we find no error in the trial court’s denial of the request.
III. TRANSCRIPT OF FAIN’S STATEMENT
At trial, Officer Newton testified as to statements Fain made during a taped police interview. The trial court disallowed the introduction of the tapes and the 58 page transcript thereof. The State did not introduce the transcript, but Officer Newton simply related his recollection of part of the conversation. Fain requested that the entire transcript be admitted into evidence; he did not limit his request to those portions of the transcript which explained, qualified or were relevant to that part of the conversation regarding which Newton testified. Such limited, relevant portions would have been admissible under the then existing Idaho evidentiary practice, which practice is now articulated in Idaho Rule of Evidence 106:
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
While we note that the State did not introduce a writing, the rationale of the above rule would seem to apply where, as here, the State introduces evidence of an oral communication which has been reduced to writing, and other portions of that conversation, also reduced to writing, “ought in fairness to be considered contemporaneously with it.” However, since Fain’s counsel failed to tailor his request in any respect so as to move for the admission of only those other parts of his statement which might be relevant in the context of Officer Newton’s testimony, the trial court committed no error in refusing to admit the full transcript of the taped interview or the tapes themselves.
IV. FAIN’S POLYGRAPH TEST
Fain further argues that the trial judge committed reversible error by not admitting evidence of the results of Fain’s polygraph test. Fain contends that with the exception of the testimony of the two cell mates, he was condemned by evidence which was wholly circumstantial. He argues that since he has consistently asserted his innocence, the critical issue for the jury was whether he or the two cell mates were telling the truth. Fain had taken a polygraph test prior to his arrest. We conclude that the trial court did not err in refusing to admit the test results.
As a general rule, results of polygraph examinations are inadmissible absent a stipulation by both parties. Hopkinson v. Shillinger, 645 F.Supp. 374 (D.Wyo.1986) reh’g den. 648 F.Supp. 141; Wilkie v. State, 715 P.2d 1199 (Alaska Ct.App.1986); State v. Sanford, 237 Kan. 312, 699 P.2d 506 (1985); Fernandez v. Rodriguez, 761 F.2d 558 (10th Cir.1985); State v. Montes, 136 Ariz. 491, 667 P.2d 191 (1983); State v. Crispin, 671 P.2d 502 (1983); Aguilar v. State, 98 Nev. 18, 639 P.2d 533 (1982); State v. Brown, 64 Or.App. 747, 669 P.2d 1190 (1983); State v. Rupe, 101 Wash.2d 664, 683 P.2d 571 (1984). Where *87stipulated polygraph results may be admitted, the defendant’s participation in the examination must be free and voluntary. The trial court has discretion to exclude evidence if it finds that an examiner was not qualified or that the conditions under which the test was administered were unfair. The opposing party must be permitted to cross-examine the examiner as to his or her expertise, the reliability of polygraph examinations, the accuracy of the apparatus used, and all other points reflecting on the accuracy of the polygraph both in general, and in the particular case. Also, the jury must be instructed that the examiner’s testimony as to the results of the test is not conclusive, but is to be taken only as an expert opinion. State v. Rebeterano, 681 P.2d 1265 (Utah 1984). In the instant case, the prosecution did not stipulate to the admission of Fain’s polygraph exam.
Moreover, the courts of many other states have held that results of polygraph examinations are not admissible in a criminal trial, regardless of whether the polygraph testimony is exculpatory. U.S. v. Rodriguez, 765 F.2d 1546 (11th Cir.1985); U.S. v. Nelson, 606 F.Supp. 1378 (S.D.N.Y. 1985); U.S. v. Grandison, 780 F.2d 425 (4th Cir.1985), rev’d on other grounds, 479 U.S. 1075, 107 S.Ct. 1269, 94 L.Ed.2d 130 (1987); U.S. v. Brevard, 739 F.2d 180 (4th Cir.1984); State v. Beachman, 189 Mont. 400, 616 P.2d 337 (1980); State v. Antone, 62 Haw. 346, 615 P.2d 101 (1980); Sheppard v. State, 670 P.2d 604 (Okla.Crim. App.1983). Federal law is in accord. U.S. v. Skeens, 494 F.2d 1050 (D.C.Cir.1974); U.S. v. Jenkins, 470 F.2d 1061 (9th Cir. 1972), cert. denied, 411 U.S. 920, 93 S.Ct. 1544, 36 L.Ed.2d 313 (1973); U.S. v. Watts, 502 F.2d 726 (9th Cir.1974); U.S. v. De Betham, 470 F.2d 1367 (9th Cir.1972), cert. denied, 412 U.S. 907, 93 S.Ct. 2299, 36 L.Ed.2d 972 (1973); U.S. v. Gloria, 494 F.2d 477 (5th Cir.1974), cert. denied 419 U.S. 995, 95 S.Ct. 306, 42 L.Ed.2d 267 (1974).
The foregoing authorities reflect the prevailing judicial view that the physiological and psychological bases for the polygraph examination have not been sufficiently established to assure the validity or reliability of test results. While scientific developments may one day refine the polygraph examination so that the results of the test may more frequently merit admission into evidence, we will not now overturn the trial court’s exclusion of such results absent a stipulation by both parties.
Fain also objects to the trial court’s decision to exclude evidence of a “psychological profile” prepared by the Federal Bureau of Investigation. The profile was nothing more than the Bureau’s guess, after evaluating the facts then before it, as to the personality composite of the unidentified subject. A profile, of course, is not a physical scientific test conducted upon actual evidence using well-established scientific principles. Moreover, the profile simply would not have been relevant evidence as to the issue of the identity of the perpetrator of the crimes charged. We conclude that the trial court did not err in refusing to admit the “psychological profile.”
V. THE DESTROYED SWABS
After the state had recovered the victim’s body, Dr. Droulard, a pathologist, performed an autopsy. The autopsy was conducted with the assistance of Officer Victor Rodriguez, a deputy sheriff with the Canyon County Sheriff’s Department. During the course of the autopsy, Dr. Droulard used swabs to obtain fluid samples from the victim’s body. The swabs were obtained as part of a “sex crime kit.” Prior to trial, defendant moved the court to compel the prosecution to produce the “sex crime kit.” That motion read, in part:
1. Previously this court ordered the State to turn over certain evidence to the State Laboratory for independent inspection.
2. From the inspection performed by the laboratory, Criminalist Pam Server has determined the presence of spermatozoa on the anal smear produced by the State.
3. The State did not produce nor deliver to the lab the vagina, throat, nose and anal swabs which, according to page 10 *88of Dr. Droulard’s autopsy report, were “given to Deputy Sheriff Victor Rodriguez for submission to the forensic laboratory.”
4. Criminalist Server has advised defense counsel that she is reasonably certain that by examining the swabs referred to above, and in particular the anal swab, she could determine the blood type of the offender of Daralyn Johnson.
5. It has been forensieally established that blood grouping factors are secreted in physiologic fluids other than blood, and that one such fluid is semen. See 2 Wecht, Forensic Sciences, Section 25.-09(d)(2)(i), pages 25-90: Criminalist Server will so testify.
6. If the swabs are produced and the blood type determined is found not to be the defendant’s blood type, such evidence will scientifically exclude the defendant from the spermatozoa found, and will exculpate him.
7. It is therefore vital to the defense that the swab prepared by Dr. Droulard and delivered to the State be produced for scientific examination.
8. The defendant’s counsel was advised of the scientific discovery of spermatozoa only on Tuesday, October 11, 1983.
Prior to trial, defense counsel argued the above motion, informing the trial court that the evidence was material because it “could either include the defendant as a possible suspect, or specifically exclude him and be exculpatory evidence on his behalf.” (Emphasis added). The prosecutor informed the trial court that he had difficulty complying with the defendant’s request because he did not know where the swabs were. The trial court stated that if the swabs were available, then the defendant would be entitled to a reasonable opportunity to examine them. The prosecutor stated that he would produce the swabs if he could find them. The discussion concluded with the trial court asking the prosecutor to follow up on the matter and if the prosecutor could locate the swabs, he was to produce them for examination by the defense.
Immediately prior to the time of trial, defense counsel argued a motion to dismiss the charges on grounds that the defendant would be denied due process of law and a fair trial because the State had been unable to produce the swabs which were the subject of the pretrial motion to compel discovery. In support of the motion, defense counsel argued that Dr. Droulard, the physician conducting the autopsy, had by affidavit avowed that he had turned the swabs over to Officer Rodriguez of the Sheriff’s Department; that the FBI officials by affidavit and disposition had indicated that, although they had received the sex crime kit from Officer Rodriguez, they had never received the swabs; and that had the defendant had access to the swabs, it is possible that the blood type of the victim’s assailant could have been determined, and that the results could have exculpated the defendant in that it could have eliminated him as the offender.
Defense counsel cited Idaho v. Leatherwood, 104 Idaho 100, 656 P.2d 760 (App. 1982) and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) for the proposition that the prosecution must disclose to an accused, upon request, evidence material either to guilt or to punishment and that failure to do so violates the due process clause of the fourteenth amendment, irrespective of the good faith or bad faith of the prosecution. Defense counsel further cited State v. Ward, 98 Idaho 571, 569 P.2d 916 (1977), for the proposition that where the prosecution has a duty to disclose, that duty includes the requirement that it use earnest efforts to preserve evidence for possible use by the defendant.
Responding to defendant’s argument, the prosecutor presented the testimony of Pamela Server, a forensic chemist at the State Crime Laboratory in Boise. Ms. Server’s testimony on direct examination tended to establish that semen samples could be scientifically tested and could be helpful in determining the identity of a criminal suspect, or more precisely, could possibly exclude or exonerate certain suspects.
The prosecutor stated that he had spoken by phone with Victor Rodriguez, the depu*89ty sheriff to whom Dr. Droulard had referred in his autopsy report. The prosecutor represented that Rodriguez had told him “that the procedure at the hospital at the time the autopsy was conducted was to the effect that the physician who performed the autopsy collected all of the samples, put the samples in the sex crime kit, the sex crime kit was then sealed at the hospital. That sex crime kit was then, by Officer Rodriguez, tendered to the FBI lab in Washington, D.C.”
The prosecutor further stated that he had spoken with Bill Mclnnis, an F.B.I. agent who informed the prosecutor that he had received the sex crime kit and had broken its seal and that there were no swabs in the kit.
The trial court denied defendant’s motion to dismiss for two reasons: (1) it found that the State never had possession of the swabs; and (2) it determined that, at best, had the defendant had access to the swabs, any results of testing of the swabs would have produced evidence only as to the sexual molestation charges and not as to the homicide charge, the homicide being the result of asphyxiation. This ruling was made over defense counsel’s objection that many of the prosecutor’s statements were hearsay and that Dr. Droulard’s affidavit, submitted at the preliminary hearing, contradicted Officer Rodriguez’s representation that Dr. Droulard had discarded the swabs.
During the course of trial, outside the presence of the jury, an FBI special agent examiner, Douglas W. Deedrick, testified that, at the time he examined the sex crime kit in question, there were no anal, vaginal or oral swabs contained in the kit.
At trial, the prosecution called Dr. Droulard to the stand. During cross-examination Dr. Droulard testified that he had taken swabs of the rectal, vaginal and oral areas of the victim’s body, used some of them to make slides, and that he had turned some of the swabs over to a hospital technologist and that he had given the remainder of the swabs to Deputy Sheriff Victor Rodriguez for inclusion in the sex crime kit.
At trial, Officer Rodriguez testified that he had been present at the time Dr. Droulard had conducted the autopsy. He testified that he had had possession of the sex crime kit for the sole purpose of assisting Dr. Droulard in the doctor’s examination of the victim’s body for evidence. He also stated that he observed the doctor perform the vaginal, anal, and oral swabbing. His testimony conflicted with Dr. Droulard’s testimony in that he stated that Dr. Droulard had not given him the swabs for the sex crime kit, but had instead thrown the swabs in the garbage.
On remand ordered by this Court, the trial court found that if he had to choose, he was of the opinion that it was Dr. Droulard who had discarded the swabs.1
*90At the close of the State’s case-in-chief, the defense counsel argued that the trial court should dismiss the case. He stated:
Prior to the commencement of trial a motion was filed in regards to the destruction of evidence. Specifically the swabs taken at the time of the autopsy. Now that the testimony for the State is completed, it is compelling that the Court dismiss this case on that motion for dismissal.
Structure of the motion for dismissal was that it’s evidence, it’s potential exculpatory evidence, and the prosecuting attorney, through presentation of evidence, and upon statements to the Court, advised the Court that the swabs were never taken, and never delivered to the police department.
Now that we have concluded the evidence, Dr. Droulard has specifically stated in his testimony here today, and reaffirmed his autopsy report and affidavit, which is before the Court, as well as his testimony in the preliminary hearing transcript; that he did take the swabs, and he did deposit those to Officer Rodriguez.
Officer Rodriguez in his testimony as I recall indicated that he had given the swabs to the doctor, but that he never received the swabs back.
The criminalist has testified that given the swabs, she may have been able to exclude the defendant as a contributor of the sperm by typing of the blood. The word “may have been able” is not destructive to this argument for had the evidence been preserved, the defendant would have been able to pursue an avenue of exculpation which have [sic] now been closed by him — by state action.
This type of exculpatory evidence is even more critical now, because of the individuals of the jail, Roberson and Chilton. They have come down and they have testified that the defendant says he had intercourse with the girl. That he was only — that—that he was the only molester involved.
Therefore, it now is critical from a life and death standpoint for the defendant when we cannot pursue that avenue for the jury because the State destroyed, lost, or failed to preserve, whatever, whatever term we use, the evidence which we can pursue.
In attempting to refute the defendant’s argument, the prosecution stated:
[T]he evidence is not conclusive that the State ever did have possession of those swabs. There is inconsistent evidence. One witness, Dr. Droulard, stated that he did give the swabs to Detective Rodriguez. Detective Rodriguez, just as emphatically, emphasizes- that he did not ever receive the swabs from Dr. Droulard.
Without a conclusive showing that the State had those, I believe Mr. Bishop’s motion is unfounded; and even if the State did have them, his motion is unfounded, because of the testimony of Pam Server prior to the trial; that the possibility of obtaining a blood type grouping from those specimens were contingent upon several “if’s.” If enough semen was present. If it was not contaminated. If the types of blood characteristics were present in that semen, if it was even there; and from that it would not in any way be error on your part, Your Honor, to dismiss this motion because of the iffy contingency of the defense motion.
This would be a mere tangential procedural technicality not warranting a dis*91missal of this case, and we would submit it on, that argument.
The trial court denied defendant’s motion.
We agree with appellant that under certain circumstances due process requires that the state preserve the swabs. We do not, however, accept appellant’s assertion that the state’s failure to preserve the swabs requires the dismissal of the case. When evidence with a potentially exculpatory value to a criminal defendant has been lost or destroyed by the state, there is nothing the court can do to restore the defendant to exactly the same position he would have been in had the evidence been preserved. However, there are remedial measures which the trial court can and should employ to ensure that the defendant receives a fair trial even though he no longer has access to exculpatory material which the prosecution had at one time already gathered.
In the present case, the trial court properly denied defendant’s motion to dismiss because, in light of the circumstances (i.e. strong cumulative evidence of guilt), dismissal would have been an extreme sanction not warranted by the particular facts. The district court concluded that even if the defendant had the semen samples available for testing, such samples would yield test results that would only be material as to the lewd and lascivious conduct charge and could not possibly exonerate the defendant as to the kidnapping and murder charges. However, as defense counsel appropriately points out, the state offered no motive for the kidnapping and murder other than the sexual attack. There is no evidence to suggest that the killer and the sexual violator were not the same person. Thus, exclusion of the defendant as the sexual offender could exclude him from the other charges as well.
In California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), the Court held that the due process clause of the fourteenth amendment does not require that law enforcement agencies preserve breath samples captured by an “Intoxilyzer” in order to introduce breath-analysis at trial and further explained the concept of constitutional materiality, which concept implicates the state’s duty to preserve evidence. The Court stated:
Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality, see United States v. Agurs, 427 U.S. [97] at 109-110, 96 S.Ct. [2392] at 2400 [49 L.Ed.2d 342 (1976)], evidence must both possess ah exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.
467 U.S. at 488-89, 104 S.Ct. at 2534 (footnote omitted).
As explained below, swabs may possess an exculpatory value in that they may be tested and the results of those tests may exclude a criminal defendant from that class of persons who could have committed the offense. As a rule, the defendant does not have available to him other comparable evidence. Hence, under federal law the Constitution imposes on the states the duty to preserve semen samples which the state has already collected in a prosecution for sexual offenses as the samples might be expected to play a significant role in the suspect’s defense.
Tests have been devised to type seminal fluid. These tests, while of value in helping to identify a rape suspect, are similar to blood tests in that they do not positively identify a person as the perpetrator of the crime but may exclude the person suspected. 65 Am.Jur.2d Rape § 63 (1972). Evidence regarding the analysis and identification of seminal fluid is not always conclusive for purposes of identification. It is nevertheless admissible and may have considerable bearing on cases dealing with rape, criminal assault, homicide, or a combination of all three. Seminal fluid can sometimes be typed by the same classifications as blood types. This means that seminal fluid found at the scene of a sex offense may be typed, and then matched or *92compared with the blood type of the suspect or accused. Although a person cannot be conclusively identified in this manner, the matching process may aid-in excluding persons wrongfully accused of a sex crime.
Under ideal conditions, seminal fluid may be typed or grouped in much the same manner as blood is typed — as type A, AB, B, and O. However, unlike blood, it is not always possible to type or identify human semen as representative of one of the four basic blood groups. The person from whom the sample is taken must be a so-called “secretor.” It is estimated that from seventy-five to eighty percent of all human beings are considered to be “secretors;” that is, they possess, in fluids other than their blood, certain material properties that tend to be classified as would blood. Fain is a Type A secretor. In some instances, it has been possible to classify not only an individual’s semen but also his saliva, fingernails, hair, and even fluid from a blister on some portion of his body. See, 2 A.L.R. 4th 500.
In People v. Hitch, 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361 (1974), the California Supreme Court held that evidence is material if there is a reasonable possibility that the evidence would constitute evidence favorable to the defendant on the issue of guilt or innocence. The Hitch court held that the duty of disclosure of evidence to the defendant attaches in some form once the government has first gathered and taken possession of the evidence; before the request for discovery has been made, the duty operates as the duty of preservation.
The Hitch court cited United States v. Bryant, 439 F.2d 642 (D.C.Cir.1971) (“Bryant I”) (result affirmed after remand in “Bryant II”, United States v. Bryant, 448 F.2d 1182 (1971)), which suggested that, while sanctions should be imposed in cases of bad faith suppression of evidence, “[a]n exception for good faith loss of important evidence must not be allowed to swallow the discovery rules, and the burden of explanation on the Government must be a heavy one; but criminal convictions otherwise based on sufficient evidence may be permitted to stand so long as the government made ‘earnest efforts’ to preserve crucial materials and to find them once a discovery request is made.” 117 Cal.Rptr. at 17, 527 P.2d at 369. (Emphasis in original) (quoting 439 F.2d at 651-52). The Hitch court concluded:
For the future, ‘earnest efforts’ will be defined quite strictly____ Of course, the regular procedures for preservation must be adequate to the task. Systematic non-preservation of tapes involving Government undercover agents — as in the cases before us — might be regular, but would be insufficiently protective of defendants’ right to discovery. Accordingly, we hold that sanctions for nondisclosure based on loss of evidence will be invoked in the future unless the Government can show that it has promulgated, enforced and attempted in good faith to follow rigorous and systematic procedures designed to preserve all discoverable evidence gathered in the course of a criminal investigation. The burden, of course, is on the Government to make this showing. Negligent failure to comply with the required procedures will provide no excuse ... A right so crucial as that of disclosure ought not to be built on ... shifting sands. It ought, rather, to be protected by rules, systematically applied and systematically enforced. (Emphasis in part in original, in part added.)
117 Cal.Rptr. at 17, 527 P.2d at 369 (quoting 439 F.2d at 652) (footnote omitted).
In People v. Nation, 26 Cal.3d 169, 161 Cal.Rptr. 299, 604 P.2d 1051 (1980), the California court held that the prosecutor has the duty to disclose material evidence favorable to the accused even in the absence of a request from the defense. The Nation court further held that if the state recovers a semen sample of one who has made a sexual assault or has perpetrated a rape or attempted rape, the authorities must take reasonable measures to adequately preserve the evidence and to make it available to the defense, noting that an analysis of the semen sample might not only impeach the credibility of the prosecution’s witnesses but also might com*93pletely exonerate the defendant. The Nation court further stated, “[w]hether or not the police deem the crime sufficiently important to warrant such an identification analysis, they cannot make the decision for the defendant.” 161 Cal.Rptr. at 303, 604 P.2d at 1055 (emphasis added).
The Nation court established as a matter of law that with respect to semen samples obtained from the vagina of an alleged rape victim, the sample is material evidence requiring preservation. However, as the following cases illustrate, the sanctions to be imposed depend upon the particular circumstances attendant to the loss or destruction of the material evidence in each case. People v. Moore, 34 Cal.3d 215, 193 Cal.Rptr. 404, 666 P.2d 419 (1983).
In State v. Mitchell, 140 Ariz. 551, 683 P.2d 750 (1984), the Arizona Court of Appeals stated, “[w]e agree with the California court and hold that the law enforcement officers have a duty to preserve the semen samples in a rape case, including refrigerating them.” 683 P.2d at 754. In Mitchell, the court held that the state’s failure to preserve a semen sample did not merit dismissal of a count, but only the suppression of any blood-grouping evidence. In Mitchell, such evidence had not been suppressed at trial; however, the court held that in light of the overwhelming evidence in the case, including the victim’s identification of the defendant, the trial court’s failure to suppress constituted harmless error beyond a reasonable doubt.
The State contends that no consequences should attach to its failure to preserve the semen samples because Dr. Droulard was not working for the prosecution. This contention is not persuasive. In State v. Vaster, 99 Wash.2d 44, 659 P.2d 528 (1983), the court held that the duty to preserve evidence applies not only to the prosecution, but also to its agents acting under prosecutorial authority. In Vaster, the court concluded that even though the police did not have physical control over vaginal samples destroyed'prior to the defendant’s trial for rape, they were properly held responsible for their destruction, where their silence, in response to the medical center’s notice that the vaginal samples were to be destroyed, indicated permission, albeit unintentional, that the sample be destroyed.
Here, we are not suggesting that Dr. Droulard was biased in any way or that he approached the autopsy in anything but a professional manner. However, he made his examinations and took the samples at the request of deputy sheriff Rodriguez, who was present throughout the examination. Regardless of whether Officer Rodriguez’s testimony as to what transpired with the swabs is accurate or whether Dr. Droulard’s account is accurate, under either account it is clear that at all relevant times either Dr. Droulard or Officer Rodriguez had possession of the swabs, which samples might have contained material evidence where, as here, the defendant is charged with a sexual offense. Moreover, even if Dr. Droulard were not deemed to be a state agent, Officer Rodriguez, having at least constructive control of the swabs, should have used earnest efforts to prevent the doctor from disposing of the swabs if, as Officer Rodriguez testified, the doctor in fact disposed of the swabs.
More recently, the Arizona Court of Appeals required dismissal in both State v. Youngblood, 153 Ariz. 50, 734 P.2d 592 (App.1986), and State v. Escalante, 153 Ariz. 55, 734 P.2d 597 (App.1986). In Escalante, the state failed to preserve semen stain evidence which had the potential to exonerate the defendant. The court stated that:
[w]hen identity is an issue at trial, and the police permit the destruction of evidence that could eliminate a defendant as the perpetrator, such loss is material to the defense and is a denial of due process. Dismissal is the appropriate remedy unless the evidence against the defendant is so strong that a court can say, beyond a reasonable doubt, that the destroyed evidence would not have proved exonerating. The cases that discuss the remedy for a denial of due process of this type do not speak in quite these terms. Instead, they tend to cast the inquiry in terms of prejudice to the defendant, i.e., the denial of due process is prejudicial when the case against the de*94fendant is weak and not prejudicial when it is strong. We believe the result is the same regardless of how the test is framed.
Here we cannot say that the evidence against Escalante was so strong that the loss of the evidence was harmless beyond a reasonable doubt.
734 P.2d at 603.
In determining that the evidence was not so strong as to render the loss of evidence harmless beyond a reasonable doubt, the court noted the existence in that case of mistaken and conflicting identifications of both the attacker and the attacker’s car.
In Crockett v. State, 95 Nev. 859, 603 P.2d 1078, 1081 (1979), the court stated, “[W]hen evidence is lost as a result of inadequate governmental handling, a conviction may be reversed.” There the defendant was convicted of rape and second degree murder based entirely on circumstantial evidence. The court held that the failure of lab technicians to report blood-grouping tests of the vaginal swab which were possibly exculpatory, and the intentional discarding of a sperm slide so prejudiced the defendant as to violate his due process right to a fair trial. The Nevada court stated:
Unfortunately, scientific verification is forever foreclosed because the government admittedly did not properly preserve the swab. Further, the sperm slide, which easily could have been preserved, was intentionally, though not maliciously discarded. The State now seeks to benefit from its own faulty procedures by urging factual possibilities which proper procedures might well have foreclosed. We think this approach is legally untenable. We cannot permit speculative inferences adverse to Crockett to be derived from the absence of evidence which the State should have preserved____
This obviously is not a case where an otherwise prejudicial loss may be ignored on the ground that evidence of guilt is overwhelming.
603 P.2d at 1081-82.
In Deberry v. State, 457 A.2d 744 (Del. 1983), the court ruled that as a matter of prudence agencies that create rules for evidence preservation should broadly define discoverable evidence to include any material that could be favorable to the defendant. The Deberry court held that when examining the conduct of the state in the loss or destruction of evidence, the court should inquire whether the evidence was lost or destroyed while in the state’s custody, whether the state acted in disregard for the interests of the accused, whether the state was negligent in failing to adhere to established and reasonable standards of care or police and prosecutorial functions, whether its acts, if deliberate, were taken in good faith or were reasonably justified, and whether the government attorneys prosecuting the case participated in events leading to the loss or destruction of evidence. It further held that certain kinds of evidence, including the testimony of persons who had custody of the material, any procedures for preserving evidence, specific practices followed in the particular case and steps taken to recover lost material after discovery of the loss, were relevant to the inquiry into the state’s conduct and the loss or destruction of evidence. The Deberry court held that when physical evidence such as the defendant’s clothing is lost or otherwise becomes unavailable through some apparent fault of the police, the state bears a heavy burden of overcoming defendant’s claim of prejudice, and a haphazard explanation of the loss will be insufficient. The court concluded that the state’s failure to produce the defendant’s clothes upon request or to conduct scientific tests, as was done on the apparel of the alleged rape victim, permitted the inference that any scientific evidence obtained from such items would have been favorable to the defendant. In Deberry, the defendant was not only charged with rape but also with kidnapping and a weapons charge. There, the court concluded that the kidnapping and weapons charges necessarily were interrelated with the rape conviction and could not stand independent of it.
In the present case, the government's “explanation” of the loss of the swab sam*95pies was, at best, less than clear. Moreover, here, as in Deberry, the appellant was not only charged with a sexual crime but with additional crimes as well. Likewise, in the present case, those additional charges were interrelated with the sexual crime and it is unlikely that they would stand independent of it.
The State also contends that, even had the swabs been preserved, they would have been useless as yielding only inconclusive or unreliable test results. This argument is not relevant in a due process analysis. In People v. Newsome, 136 Cal.App.3d 992, 186 Cal.Rptr. 676 (1982), the court held that for purposes of determining whether to impose sanctions on the prosecution for failure to preserve a semen sample, a factual showing that a vaginal smear was taken from the complaining witness and that the swab showed the presence of seminal material required the trial court to treat the samples as material evidence, despite the claim by the state that the swab was rendered immaterial in fact when the swab failed to yield useful test results when tested by the state. In Newsome, the state argued that the swab was material evidence only in the abstract because two attempts to perform PGM typing yielded no useful results. There, the court concluded that the state’s contention sidestepped the issue. The court stated:
Assuming arguendo, that when tested ... the swab’s failure to yield useful PGM results rendered it at that point immaterial in fact (although the possibility remains that a test for ABO group may have been successful), the question remains whether its uselessness is attributable to the government’s failure properly to preserve the evidence____
Moreover, in United States v. Bryant [citations omitted], the court held that the duty to preserve evidence applies to all discoverable evidence, and the tapes at issue in that case were no less discoverable because they were unintelligible; “It is the defendant’s right to discover such evidence and decide for himself....” (Emphasis added.)
186 Cal.Rptr. at 681 (quoting from United States v. Bryant (Bryant II), 448 F.2d 1182, 1184, fn. 1 (D.C.Cir.1971)).
Even in the above cases which mandated dismissal of charges due to the state’s failure to preserve material evidence, a method of analysis was utilized which is cognizant of the degree and weight of the evidence accumulated against the defendant as well as the degree of culpability of the State in failing to preserve material evidence. Indeed, a strong line of cases do more than just recognize the relative strengths and weaknesses of those variables, but actively balance the magnitude of the State’s failure to perform its duty to preserve evidence against the degree of prejudice thereby sustained by the defendant. In State v. Vaster, 99 Wash.2d 44, 659 P.2d 528 (1983), the court adopted a “balancing approach” and noted that, in that case, “there [was] extremely strong evidence of guilt” including an “unusually detailed eyewitness identification.” 659 P.2d at 534. The Vaster court affirmed the conviction of the defendant despite the State’s loss of a vaginal sample. The court also distinguished the cases of People v. Nation, supra, and Crockett v. State, supra, noting that:
While the rationale of these cases appears persuasive, we note with interest that in both cases other evidence against the defendants was relatively weak.
659 P.2d at 533.
This kind of “balancing approach” was also used in United States v. Loud Hawk, 628 F.2d 1139 (9th Cir.1979), cert. den. 445 U.S. 917, 100 S.Ct. 1279, 63 L.Ed.2d 602 (1980), wherein the court stated: “[t]he proper balance is that between the quality of the government’s conduct and the degree of prejudice to the accused. The government bears the burden of justifying its conduct and the defendant bears the burden of demonstrating prejudice.” Id. at 1152. See also, United States v. Roberts, 779 F.2d 565 (9th Cir.1986).
The Ninth Circuit is not alone in its adoption of such a “balancing test.” In State v. Bailey, 144 Vt. 86, 475 A.2d 1045 (1984), the court affirmed defendant’s conviction *96for engaging in sexual acts with a person under the age of sixteen to whom he was not married, despite the state’s failure to conduct testing calculated to show the presence of sperm on certain bedding present in the “rape kit.” In balancing the “admitted negligence” of the State in failing to conduct the test against the prejudice to defendant from the denial of potential test results which were admittedly “relevant,” the court stated that:
[T]he omission must be evaluated in the context of the entire record. United States v. Agurs, supra, 427 U.S. at 112, 96 S.Ct. at 2402. We note there was strong evidence of defendant’s guilt in this case. He made several damaging admissions to the arresting officer concerning his presence and conduct during the incident. He admitted to the officer that “he knew she was too young to be with him.” We also note the fact that the complaining witness took the stand herself and testified in detail to the events of that day.
475 A.2d at 1052.
Recently, the balancing approach was again utilized in Commonwealth v. Willie, 400 Mass. 427, 510 N.E.2d 258 (1987). There, the court remanded to the trial court to conduct a determination of prejudice to the defendant from the commonwealth’s failure to preserve certain semen deposits. The court noted that “[t]he Commonwealth’s conduct is merely a factor to be weighed in determining its culpability. That culpability, if any, is then weighed along with the other two factors, materiality and prejudice, in determining whether, and to what extent, any remedy will be employed.” 510 N.E.2d at 262. The court further noted that “[njormally, the remedy for suppression of exculpatory evidence is a new trial unless the Commonwealth’s actions are so egregious that retrial would be unfair to the defendant, in which case dismissal may be appropriate. [Citation omitted]. Loss or destruction of evidence can engender similar sanctions.” 510 N.E.2d at 262-63. Concurring in part and dissenting in part in Willie, Justice Liacos noted the disfavor in which the remedy of dismissal is held by the courts, quoting from People v. Kelly, 62 N.Y.2d 516, 478 N.Y.S.2d 834, 837, 467 N.E.2d 498, 501 (1984), “[although the choice of ‘appropriate’ action is committed to the sound discretion of the trial court, as a general matter the drastic remedy of dismissal should not be invoked where less severe measures can rectify the harm done by the loss of evidence.”
The remedy of retrial, rather than dismissal, was also found appropriate in Commonwealth v. Chapman, 255 Pa.Super. 265, 386 A.2d 994 (1978). In Chapman, the court ruled that where the undershorts of a defendant accused of rape had been destroyed between his first and second trial by the state and, where the absence of the undershorts denied the defendant the opportunity to prove conclusively that the undershorts belonged to someone else and perhaps thereby to persuade the jury that someone else was the rapist, but where the defendant had failed to utilize this evidence available to him in the first trial, a new trial including a missing evidence instruction rather than dismissal was the appropriate sanction.
In this case an appropriate instruction would have read similar to the following:
You may take note of the fact that the state had obtained bodily fluid samples from the body of the victim, that such samples are, as a matter of law, material evidence in that scientific tests are available which may exclude an individual from that class of persons who could have committed the crime, that the state lost or destroyed the samples, and that the defendant therefore did not have an opportunity to conduct such tests. The fact that the state lost or destroyed the samples does not, in itself, require that you acquit the defendant. It is, however, one factor for you to consider in your deliberations.
Based on the foregoing analysis, we have determined that the State did not deprive the defendant of due process by failing to preserve the semen samples it had obtained.
*97Utilizing the “balancing approach” already .discussed, we note that the trial court specifically found on remand that the destruction of the swabs was inadvertent. Evidence adduced at trial included the testimony of two inmates who had shared a cell with Fain and who testified that he had claimed responsibility for the murder, and an admission made to another individual, from which it could be deduced that Fain had knowledge of the murder and its circumstances; a description of Fain’s automobile furnished by a witness of the car in which the victim was last seen riding; and the existence of similarity between a sample of Fain’s pubic hair and pubic hairs found in the victim’s panties.
We have little doubt that the circumstantial evidence presented, and from which the jury clearly drew the inference of appellant’s guilt, was sufficient to sustain a conviction. We have concluded that although the evidence against Fain is circumstantial, it is nonetheless significant and weighty. In particular, the testimony of more than one person to whom Fain allegedly admitted guilt, as in Bailey, supra, indicates to us that dismissal would be an overly severe sanction.
We have most carefully reviewed the record and have concluded that were we to remand this case for retrial with the appropriate instruction that, ante, there is no likelihood that the result would be changed. We therefore decline to reverse the conviction finding that any error was harmless beyond a reasonable doubt.
VI. THE DEATH PENALTY
A.
Among his many attacks upon the constitutionality of the Idaho death penalty procedure, Fain contends that article I, § 7 of the Idaho Constitution guarantees him the right to have a jury pass upon whether he should receive the death sentence, contrary to our holdings in State v. Creech, 105 Idaho 362, 670 P.2d 463 (1983), and, State v. Sivak, 105 Idaho 900, 674 P.2d 396 (1983).2 We continue to adhere to our holdings in those opinions.
Fain also contends that the constitutional requirement of proportionality has not been met in this case. The United States Supreme Court and this Court have held that the death penalty must be administered in a way that can rationally distinguish between those individuals for whom death is an appropriate sanction and those for whom it is not. Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340; State v. Aragon, 107 Idaho 358, 690 P.2d 293 (1984).
Comparing the circumstances and proof in this case to sentences imposed in similar cases, we cannot conclude that the sentence in the instant case was excessive or disproportionate. In 1983, in State v. Creech, 105 Idaho 362, 670 P.2d 463 (1983), this Court conducted an extensive review of Idaho murder cases. We find the sentence imposed in the instant case is not disproportionate to the sentence imposed in those cases reviewed in Creech where the death sentence was available as a form of punishment. We also have compared the instant case with our recent death penalty cases in State v. Creech, supra, and State v. Sivak, 105 Idaho 900, 674 P.2d 396 (1983), and find that the sentence imposed in the present case is not disproportionate to the sentences imposed in both of those cases.
*98The crime committed in the instant case was an intentional act perpetrated upon a helpless victim who did not provoke the attack. The kidnapping, sexual attack and drowning were brutal and perverse and could only have been intended to kill the victim. The crime committed in the present case is the same type of crime as that committed in State v. Aragon, supra. In Aragon, the defendant was convicted of first degree murder and was sentenced to death based upon the beating death of an eight-month old child. Thus, we conclude that the sentence imposed in this case is proportionate to those imposed in similar death cases.
Finally, we consider whether the trial court’s findings of factors in mitigation and aggravation in determining whether to impose the death penalty were proper.
B.
Idaho’s statutes and case law establish the limits for the factors properly to be considered as mitigating when making the determination of whether to impose the death penalty. In State v. Small, 107 Idaho 504, 690 P.2d 1336, 1338 (1984), this Court stated, “[i]t is improper for a legislature to limit the sentencing body’s consideration of mitigating factors to those enumerated in a statute.” See also, State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981). In Small, we also emphasized that “the legislature’s failure to list any mitigating factors in its capital sentencing scheme indicates its intent that the sentencing judge entertain the broadest of views in considering any and all matters appropriate to the determination of culpability,” supra, 690 P.2d at 1338. See also, State v. Owen, 73 Idaho 394, 253 P.2d 203 (1953). The broadest of views must be entertained in considering all potentially mitigating factors.
The judge is also provided with express guidelines concerning aggravating factors in determining whether to impose the death penalty in I.C. § 19-2515. For the most part, the guidance provided in that code section is clear and appropriate. However, Fain contends that the trial court erroneously utilized I.C. § 19-2515(g) in assessing factors in aggravation in determining whether to impose the death penalty.
From the arguments and the evidence at trial in the instant case, the court found the following aggravating factors:
(a) The murder was especially heinous and cruel manifesting exceptional depravity in that the defendant, a man of thirty-five years of age, abducted a nine-year-old girl off the street; took her to a remote site where he sexually assaulted her and then killed her.
(b) The circumstances surrounding the killing exhibited utter disregard for human life and particularly as to an innocent child of tender years.
I.C. § 19-2515(g) provides:
The following are statutory aggravating circumstances, at least one (1) of which must be found to exist beyond a reasonable doubt before a sentence of death can be imposed:
(1) The defendant was previously convicted of another murder.
(2) At the time the murder was committed the defendant also committed another murder.
(3) The defendant knowingly created a great risk of death to many persons.
(4) The murder was committed for remuneration or the promise of remuneration or the defendant employed another to commit the murder for remuneration or the promise of remuneration.
(5) The murder was especially heinous, atrocious or cruel, manifesting exceptional depravity.
(6) By the murder, or circumstances surrounding its commission, the defendant exhibited utter disregard for human life.
(7) The murder was one defined as murder of the first degree by section 18-4003, Idaho Code, subsections (b), (c), (d), (e) or (f), and it was accompanied with the specific intent to cause the death of a human being.
(8) The defendant, by prior conduct or conduct in the commission of the murder at hand, has exhibited a propensity to commit murder which will probably constitute a continuing threat to society.
*99(9) The murder was committed against a former or present peace officer, executive officer, officer of the court, judicial officer or prosecuting attorney because of the exercise of official duty.
(10) The murder was committed against a witness or potential witness in a criminal or civil legal proceeding because of such proceeding.
Fain contends the aggravating factor denoted by the trial court as “(a),” reflecting the language of I.C. § 19-2515(g)(5), and “(b),” reflecting the language of I.C. § 19-2515(g)(6) above, overlap. We disagree.
The aggravating factors specified in §§ 19 — 2515(g)(5) and (g)(6) describe two quite different kinds of culpability, each of which has been legislatively identified as a sentencing factor of special importance in cases where the death penalty may be imposed.
Section (g)(5), referring to the special heinousness, atrociousness or cruelty of the murder and the depravity of the act, specifically refers to the personal culpability of the killer exhibited by the manner in which the crime was committed. Thus, this factor was described in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), as one that relates to cases where
the offense of murder was outrageously and wantonly vile, horrible and inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.
Gregg, 428 U.S. at 165 n. 9, 96 S.Ct. at 2921 n. 9, 49 L.Ed.2d at 870 n. 9. See Gregg, at 193 n. 44, 96 S.Ct. at 2935 n. 44, 49 L.Ed.2d at 886, n. 44.
This court took the same approach to characterizing the meaning of factor (g)(5) in State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981):
What is intended to be included are those .capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies — the conscienceless or pitiless crime which is unnecessarily torturous to the victim.
102 Idaho at 418, 631 P.2d at 200, quoting State v. Dixon, 283 So.2d 1, 9 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974).
On the other hand, the “utter disregard” factor refers not to the outrageousness of the acts constituting the murder, but to the defendant’s lack of conscientious scruples against killing another human being. In Osborn, the court explicitly construed the utter disregard factor as one referable to circumstances different from those encompassed by § 19-2515(g)(5):
Since we will not presume that the legislative intent was to duplicate any already enumerated circumstance, thus making I.C. § 19 — 2515(f)(6) mere surplusage [citation omitted], we hold that the phrase “utter disregard” must be viewed in reference to acts other than those set forth in Idaho Code §§ 19-2515(f)(2), (3) and (4). We conclude instead that the phrase is meant to be reflective of acts or circumstances surrounding the crime which exhibit the highest, the utmost, callous disregard for human life, i.e., the coldblooded, pitiless slayer.
102 Idaho at 405, 631 P.2d at 187.
The particularly cold-blooded killer need not act sadistically or in a particularly outrageous fashion in order to commit a killing with utter disregard for human life. One who commits a crime in an especially heinous way is punished for the heinousness of his crime, not because he acted with utter disregard for human life, although it may be expected that most especially heinous, atrocious or cruel murders will have been committed with utter disregard for human life. See e.g., Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987).
We therefore decline to reverse the judgment and order imposing the sentence on the basis of the asserted overlapping of aggravating factors.
C.
The fact that there is no overlap between I.C. § 19-2515(g)(5) and (6) does not conclude our consideration of the sen*100tencing. In another opinion issued by this Court today, we have held that the trial court may sentence the defendant to death only if the trial court finds that all the mitigating circumstances do not outweigh the gravity of each of the aggravating circumstances found, making imposition of death appropriate. State v. Charboneau, 116 Idaho 129, 774 P.2d 299 (1989). Here, the trial court imposed the death penalty for both the conviction of first degree murder and the conviction of first degree kidnapping. In each case the trial court found that the “mitigating factors” did not outweigh the “aggravating factors.” It appears that the trial court incorrectly weighed all of the mitigating circumstances against all of the aggravating circumstances, collectively, rather than individually as required by Charboneau. For this reason, we vacate the sentence and remand for resentencing in accordance with our decision here and in Charboneau.
VII. THE POST-CONVICTION ORDER
On May 15, 1987, this Court ordered the filing of supplemental briefs on the issues of the findings on remand regarding the destroyed and potentially exculpatory evidence and further ordered the consolidation of all collateral post-conviction issues into one single proceeding. Defendant Fain contends that this Court’s order requiring such consolidation violated his constitutional right to equal protection since non-death penalty defendants are not required to raise and pursue all grounds for post-conviction relief under an equally restricted and limited time schedule. We disagree and reaffirm our position that such consolidation orders are appropriate in order to reasonably expedite the processing of these cases in a manner that both protects the defendant’s right to fair trial, while also accommodating the public’s interest in the elimination of endless delay occasioned by multiple, serial appeals. We have considered appellant’s additional assignments of error and find them to be without merit.
Conviction affirmed, remanded for resentencing.
SHEPARD, C.J., concurs in the result. BAKES, J., concurs in Parts I, II, III, IV, VI(A), (B) and (C), and VII; concurs specially in Part V. HUNTLEY, J., concurs in part and dissents in part. JOHNSON, J., concurs as to Parts I, II (Chilton), III, IV, VI(A) and (C), and VII; concurs specially as to Part VI(B); and dissents as to Parts II (Roberson), and V. BISTLINE, J., concurs in Part I; concurs specially in IV; and dissents as to Parts II, III, V, VI, VII.. Attached hereto is an Appendix, page 1 of which is a photocopy of the cover of the Sex Crime Kit. The upper document on page 2 is a photocopy of outer envelope # 2 in which genital swabbing should be placed, which is initialed by F.B.I. agents Douglas W. Deedrick and William B. Mclnnis, which suggests the results may have been completed and something put in the envelope.
The lower portion of page 2 to Appendix A is a photocopy of the inner envelope to envelope # 2, which would supposedly contain the actual swabs. It also is initialed suggesting it may have contained something.
Envelope #2 contained specific written directions regarding creation and preservation of the genital swabs. It is most difficult to understand the testimony of Officer Rodriguez in light of these explicit instructions.
As already mentioned, Rodriguez testified that Droulard discarded the swabs. Droulard testified that he gave them to Rodriguez. If Officer Rodriguez's testimony is to make sense, it means that Rodriguez sealed and deposited an empty envelope into the kit.
The trial court’s finding on remand that, if forced to choose, he would believe the testimony of Rodriguez would mean that at some point Rodriguez would be standing there with an empty envelope in his hand. One would think at that point there would be a conversation between the doctor and officer about the need to fill the empty envelope, but neither the doctor nor the officer testified as to any conversation taking place between them. Indeed, Rodriguez testified that it did not occur to him to question Dr. Droulard. We find this entire state of events, as well as the conflicting testimony thereon, most peculiar.
A further, curious factor is that at some time someone with handwriting dissimilar to that of *90the two F.B.I. agents wrote on the outer envelope of "Step 2 Genital Swabbing":
“Oral, vaginal and anal smears part of evidence 8."
If that were written on the envelope at the time of the autopsy, it would suggest that a knowing decision was made to ignore preserving the swabs as required by Step 2 and using the Step 9 smear samples as a substitute. This possibility is, of course, directly contrary to the testimony of Rodriguez and does not square with the fact that envelope #2 was sealed and sent to the F.B.I. In fact, our suspicions are further aroused by the fact that envelope 2 was at one time sealed. When samples are neither taken nor preserved, sealed envelopes for the preservation of such evidence are not submitted. Here, no saliva samples were taken, so envelope 8 was neither sealed nor inserted into the completed Sex Crime Kit.
. The author and Justice Bistline continue to adhere to their dissents in Creech, supra, and Sivak, supra, and remain firm in their belief that the Idaho Constitution provides for jury participation in the capital sentencing process. We are further persuaded that a jury is required for the reasons articulated in Adamson v. Ricketts, 865 F.2d 1011 (9th Cir., 1988), but the majority of this Court does not concur with Adamson for the reasons articulated in State v. Charboneau, 116 Idaho 129, 774 P.2d 299 (1989). I write a separate opinion as to my view of the effect of Adamson.
Were I able to get a majority to reinvest Idaho juries with their constitutional powers in a given case, I would make the decision in that case prospective only and not apply it to other inmates on death row, which procedure has been approved by the United States Supreme Court in a line of cases including Jenkins v. Delaware, 395 U.S. 213, 218, 89 S.Ct. 1677, 1680, 23 L.Ed.2d 253 (1969).