concurring, concurring specially, and dissenting.
I concur with the majority opinion with regard to parts I (The Preliminary Hearing), III (Transcript of Fain’s Statement), IV (Fain’s Polygraph Test), and VII (The Post-Conviction Order). I concur with part II (Admission of Cellmates’ Testimony), so far as it relates to the testimony of Ricky Lee Chilton and to the refusal to require Bobby Roberson to submit to a psychiatric examination or to take a polygraph test. I concur with part VI (The Death Penalty), so far as it relates to the right to jury sentencing, to proportionality, and to the weighing of aggravating and mitigating circumstances. I concur specially with part VI, so far as it relates to the lack of overlap of I.C. § 19-2515(g)(5) and (6). I dissent with regard to part II, so far as it relates to the testimony of Bobby Roberson and to part V (The Destroyed Swabs).
THE OVERLAP OF I.C. § 19-2515(G)(5) AND (6)
I concur specially with that portion of part VI of the majority opinion, so far as it relates to the lack of overlap of I.C. § 19-2515(g)(5) and (6). In my view there *110is some overlap between these two aggravating circumstances, but this overlap does not cause any problem, so long as the mitigating circumstances are weighed against each aggravating circumstances found, individually. State v. Charboneau, 116 Idaho 129, 774 P.2d 299 (1989).
Any overlap does not prejudice the defendant, since whatever element is included in I.C. § 19-2515(g)(5) that is also included in I.C. § 19-2515(g)(6) is weighed only once when each of these circumstances is weighed against all the mitigating circumstances. Only if the mitigating circumstances were weighed against all of the aggravating circumstances, collectively, would the overlap cause a problem. In that case the element that was overlapped would, in effect, have been included twice on the aggravating side. In my view, this would be impermissible.
ADMISSION OF THE TESTIMONY OF BOBBY ROBERSON
Because this is a death penalty case, we should apply special care in determining whether Fain’s rights have been violated. Cf., State v. Scroggins, 110 Idaho 380, 387, 716 P.2d 1152, 1159 (1985) (This Court must review a death sentence in a manner “qualitatively different than our review of an ordinary criminal sentence.”); Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687, 2710, 101 L.Ed.2d 702 (1988) (Justice O’Connor stated that “the death penalty has been treated differently from all other punishments.”) In my view the admission of the testimony of Bobby Roberson about what Fain told him after he was returned to Fain’s cell following an interview with a detective violated Fain’s rights under the sixth amendment to the United States Constitution and art. 1, § 13 of the Idaho Constitution.
In reaching my conclusion on this aspect of the case I have been guided by the decision of our Court of Appeals in State v. Currington, 113 Idaho 538, 746 P.2d 997 (App.1987), rev. den. (1988). Because we denied review in Currington, I believe it is now binding on this Court as controlling precedent.
The following facts concerning Roberson’s testimony appear in the record of this case:
1. Roberson was transferred by the jailer from cell P-3 to Fain’s cell. (Tr., p. 756.)
2. Approximately an hour and one-half after Roberson was put in the cell with Fain, Fain came to Roberson and said, “I suppose you might want to know the reason I’m in the cell.” Fain then explained to Roberson the reason he was there. (Tr., p. 726.)
3. Fain and another person in the cell were having conversation about sexual conduct with little girls. (Tr., p. 726.)
4. Roberson told the director of detention of the Canyon County jail that he wanted to see a detective. He said he had information concerning what Fain had been telling the inmates in the next cell concerning his actions in a crime. (Tr., pp. 757-58.)
5. The director of detention acted upon Roberson’s request by getting him to see Detective Hensen. Hensen was in charge of criminal investigation for the Canyon County Sheriff’s office. (Tr., pp. 759-61.)
6. The director of detention was aware that Fain was represented by counsel. (Tr., p. 762.)
7. Hensen was engaged in the investigation regarding the disappearance and death of Daralyn Johnson and had testified at Fain’s preliminary hearing approximately three weeks earlier. (Tr. of Preliminary Hearing, pp. 164-85.)
8. Roberson informed Hensen of Fain’s conversation with another inmate about having sex with young girls. (Tr., p. 727.)
9. Roberson told Hensen he would stay in the cell with Fain and see if he could help on the case. Hensen told Roberson that it would be of no value because of legal problems it would encounter and that Hensen did not care to discuss it with Roberson. Hensen did not want Roberson “to become an *111agent for the Canyon County Sheriffs office.” (Tr., pp. 710, 721.)
10. Hensen told Roberson he would try and see if he could get Roberson moved from Fain’s cell, but that it might take a day to a day and one-half, or even longer. Hensen told Roberson he would do his best to see if he could get Roberson transferred. (Tr., p. 727.)
11. When Roberson left Hensen’s office, Hensen assumed that Roberson was going back to Fain’s cell. Hensen assured Roberson that he would get hold of the jail supervisor and see if he could assist in getting Roberson moved out. (Tr., pp. 717-18.)
12. Hensen knew that Fain was represented by counsel. Hensen did not attempt to contact Fain’s attorney with regard to his conversation with Roberson. On the same day as the conversation with Roberson, Hensen did advise the prosecuting attorney’s office of what Roberson had told him. (Tr., p. 718.)
13. Neither Hensen nor anyone else to his knowledge advised Fain that Roberson was in his cell obtaining information and providing it to Hensen. (Tr., p. 719.)
14. Hensen felt that some of the statements that Fain had made in Roberson’s presence incriminated Fain. (Tr., pp. 723-34.)
15. Roberson remained in the cell for another night after he talked to Hen-sen. (Tr., p. 762.) Roberson recalls that it was approximately a day to a day and one-half before he was transferred out of Fain’s cell. (Tr., p. 727.)
16. While Roberson was in the cell with Fain, after Roberson had been to talk to Hensen, Fain came over and started talking again about the young girls,
• what he would do, and how it felt. Fain then began talking about picking up Daralyn Johnson and revealed to Roberson what he had done to her. (Tr., pp. 781-85.)
17. Roberson obtained two maps that Fain had drawn depicting where he had picked up Daralyn Johnson and where he had taken her. (State’s Exhibit No. 43; Tr., p. 784.) Fain drew the maps after he told Roberson what he had done with the girl. Fain wadded the maps up in his hands and put them in the toilet. Roberson went over and sat on the stool, and when Fain walked away, Roberson picked the maps up out of the toilet and put them in his pants so that Fain couldn’t see them. (Tr., pp. 736-37.)
18. Roberson asked the jailer if he could have paper and some pencils. (Tr., pp. 737-38.) Roberson used the paper and pencils to write notes of the information that he had obtained from Fain. (Tr., p. 736.)
19. After Roberson was transferred from Fain’s cell, he had another conversation with Hensen in which he told Hensen what Fain had told him about what he had done with Daralyn Johnson. (Tr., p. 711.) Roberson also delivered to Hensen the maps that Fain had drawn. (Tr., p. 737.)
These facts distinguish this case from those cited in the majority opinion.
In Currington the Court of Appeals held that the State impermissibly took advantage of circumstances and violated the defendant’s sixth amendment right to counsel through an informant’s conversation with and recording of the conversation with the defendant who was free on bail. The Court of Appeals reviewed extensively the recent history of the right to assistance of counsel in the context of the testimony of informants about admissions made by defendants charged with the crime. The court invoked both the sixth amendment to the United States Constitution and art. 1, § 13 of the Idaho Constitution. After discussing Massiah and Henry, cited by the majority here, the Court of Appeals discussed Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985). There, a co-defendant approached state authorities because he had received anonymous threats. The police provided him with a telephone recording device and instructed him to record any threats or conversations had with the defendant. After *112recordings were made and reviewed by the police, the police attached a “body-wire” to the informant in advance of a meeting between the informant and the defendant to discuss their defense. At this meeting, which was scheduled by the defendant, the defendant made incriminating statements. The Supreme Court held that the sixth and fourteenth amendments barred admission of the statements with respect to pending, charged crimes.
In reviewing the Supreme Court’s decision in Moulton, the Court of Appeals in Currington focused on that part of the Supreme Court’s opinion indicating that the state took advantage of the circumstances in obtaining the incriminating statements. The Court of Appeals quoted the following passage from Moulton:
The Sixth Amendment guarantees the accused, at least after the initiation of formal charges, the right to rely on counsel as a ‘medium’ between him and the State. As noted above, this guarantee includes the State’s affirmative obligation not to act in a manner that circumvents the protections accorded the accused by invoking this right. The determination whether particular action by state agents violates the accused’s right to the assistance of counsel must be made in light of this obligation. Thus, the Sixth Amendment is not violated whenever — by luck or happenstance — the State obtains incriminating statements from the accused after the right to counsel has attached. [Citation omitted.] However, knowing exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State’s obligation not to circumvent the right to the assistance of counsel as is the intentional creation of such an opportunity. Accordingly, the Sixth Amendment is violated when the State obtains incriminating statements by knowingly circumventing the accused’s right to have counsel present in a confrontation between the accused and a state agent.
113 Idaho at 542-43, 746 P.2d at 1001-02, quoting Moulton, 474 U.S. at 176, 106 S.Ct. at 487 (emphasis added in Currington).
After discussing Kuhlmann, cited by the majority, the Court of Appeals stated that “as illustrated by Henry and Moulton, the Sixth Amendment may apply, although the defendant initiated the conversation, if the state exploited a relationship or a set of circumstances where incriminating statements were likely to be made.” Id., 113 Idaho at 544, 746 P.2d at 1003.
I have read with interest the case of United States v. Yeager, 428 F.2d 182 (3rd Cir.1970). This case is the most factually similar case to the present case that I have seen. In Yeager the inmate who testified against the defendant had originally been placed in an adjoining cell. He had almost daily conversations with the defendant for a period of two months. He was then sent to a diagnostic center, apparently because of an emotional problem. At the center he was interviewed by two detectives investigating the defendant’s case. Eventually he told the detectives what he had learned from the defendant. No promises were made by the detectives in return for this information. The detectives asked him to keep them informed of any further conversations. When he returned to the jail he was placed in a cell with the defendant, and he talked with the defendant with a view toward getting information for the prosecution. Later, the prosecutor agreed that if he would testify against the defendant, he would be allowed to serve a previously imposed two to four-year sentence in a prison other than Trenton, where the defendant had numerous friends. The trial court ruled that any statements made by the defendant to the informant after his return from the diagnostic center were inadmissible, because after the interview the prosecution had placed the informant in the cell with the defendant, and the informant had questioned the defendant for the purpose of giving information to the prosecutor. The trial court did allow the informant to testify about inculpatory statements made by the defendant prior to the informant’s interview with the detectives in the diagnostic center.
*113While there are some distinctions with regard to the testimony of the informant in Yeager, and Roberson in this case, I am inclined to the view that those distinctions are not sufficient enough to dictate a different result here. None of the evidence Roberson obtained after his return to Fain’s cell following his interview with Hensen should have been admitted.
THE MISSING SWABS
While I agree with much of the majority’s analysis concerning the missing swabs, I cannot concur that the state did not deprive Fain of due process by failing to preserve them. In my view, the jury should have been instructed as requested by Fain. Fain’s requested instruction read as follows:
If you find from the evidence before you that the state or any agent of the state allowed material evidence to be destroyed, then you may infer that such evidence would have been against the interests of the state in seeking conviction.
This instruction was based on State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964) and State v. Hunter, 136 Ariz. 45, 664 P.2d 195 (1983). It focuses on evidence that the state has allowed to be destroyed. It fits the circumstances in this case and would leave to the jury the question of whether the state allowed the evidence to be destroyed and, if so, whether the missing evidence would affect the verdict of the jury.