As indicated in footnotes 23, 27, 29, and 30, I reach the same conclusions as the majority, but do so in four areas based on different analyses.
I
THE ENMUND/McDANIEL FINDING
As noted in Part 18(C)(1)(b), footnote 23, the majority concludes that the jury’s im*661plicit finding that defendant actually killed Mary satisfies Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) . Although I agree that the jury implicitly found that defendant actually killed Mary, I believe that Enmund requires an explicit finding that defendant did so, and would have this court make that finding based on the record.
The record discloses not only that the jury implicitly found that defendant actually killed Mary, it also reveals that the the trial judge made a like finding. In his special verdict, the trial judge stated,
While the giving of the felony murder instruction might under some circumstances be a mitigating factor, the court finds it no mitigation here where the defendant was the only participant in this offense.
(Emphasis added.)
While I believe that neither the jury's implicit finding nor the trial judge’s implicit finding satisfies Enmund, these findings coupled with the rest of the record compel a finding that defendant actually killed Mary. Accordingly, and like the records in McDaniel and Gillies I, the record in this case allows this court to find, beyond a reasonable doubt, that defendant actually killed Mary. See State v. McDaniel, 136 Ariz. 188, 199-200, 665 P.2d 70, 81-82 (1983) (“[Based on the record, we] conclude ... that McDaniel’s actions resulted in the victim’s death and that for purposes of Enmund ..., he did in fact kill.”) (emphasis added); Gillies I, 135 Ariz. at 515, 662 P.2d at 1022 (“While Enmund apparently changes the current test in Arizona for imposing the death penalty upon the felony-murderer, i.e., the court must now find that the defendant either killed, attempted to kill or intended to kill the victim, we are satisfied that this requirement has been met.”) (emphasis added).
Like the majority, I would hold that the trial judge’s failure to make an Enmund finding is not error. See State v. Emery, 141 Ariz. 549, 553, 688 P.2d 175, 179 (1984) (“Though the determination required by Enmund ... ought to be made by the trial court ..., we will not remand a case for resentencing whe[re] the record compels an affirmative finding that the defendant killed....”).
II
THE KIDNAPPING SENTENCE
As noted in Part 19, footnote 27, the majority ends its analysis of the classification of defendant’s kidnapping conviction without deciding whether defendant or the state has the burden of proving that defendant released Mary without physical injury in a safe place prior to defendant’s arrest. In support of defendant’s argument that the state carries this burden, he cites State v. McMillen, 154 Ariz. 322, 324, 742 P.2d 823, 825 (App.1987) (burden of proving that defendant did not release the victim without physical injury in a safe place prior to arrest is on the state), and State v. Sterling, 148 Ariz. 134, 136, 713 P.2d 335, 337 (App.1985) (same). Because I believe both McMillen and Sterling were wrongly decided, and because defendant put their continued validity in issue, I would take this opportunity to overrule them.
Subsection A of A.R.S. § 13-1304 sets forth the definition of the offense of kidnapping as follows:
§ 13-1304. Kidnapping; classification; consecutive sentence
A. A person commits kidnapping by knowingly restraining another person with the intent to:
1. Hold the victim for ransom, as a shield or hostage; or
2. Hold the victim for involuntary servitude; or
3. Inflict death, physical injury or a sexual offense on the victim, or to otherwise aid in the commission of a felony; or
4. Place the victim or a third person in reasonable apprehension of imminent physical injury to the victim or such third person.
5. Interfere with the performance of a governmental or political function.
6. Seize or exercise control over any airplane, train, bus, ship or other vehicle.
*662Pursuant to this statutory definition, the trial court gave the jury the following instruction:
The crime of kidnapping requires proof of the following three things.
1. The defendant knowingly restrained another person’s movements, and
2. The restraint was accomplished:
A. By physical force, intimidation or deception, and
B. In a manner which interfered substantially with the person’s movements, and
3. The restraint was with the intent to inflict death, physical injury or a sexual offense on a person.
This instruction, which mirrors A.R.S. § 13-1304(A)(3), is appropriate; the state needed to prove no elements other than those set forth in § 13-1304(A)(3) to establish that defendant committed the offense of kidnapping.
In its verdict, the jury found defendant guilty of kidnapping. Once found guilty, the trial court was required to sentence defendant. In Arizona, sentences are determined by the classification of an offense. Subsection B of A.R.S. § 13-1304 classifies kidnapping as follows:
B. Kidnapping is a class 2 felony unless the victim is released voluntarily by the defendant without physical injury in a safe place prior to arrest and prior to accomplishing any of the further enumerated offenses in subsection A of this section in which case it is a class 4 felony.
Defendant argues that because the state neither contended nor proved that he did not release the victim without physical injury in a safe place prior to arrest, he should have been sentenced for kidnapping classified as a class 4 felony. This argument presupposes that the state carries the burden of proving that defendant did not release the victim without physical injury in a safe place prior to defendant’s arrest. This argument finds support in both McMillen and Sterling.
The Sterling court, on which the McMillen court relied, mistakenly believed that Arizona’s kidnapping statute created different offenses or degrees of kidnapping. Based on this mistaken belief, the Sterling court held that “the voluntary release by the defendant without physical injury of the victim in a safe place prior to arrest is an element of the offense of second-degree kidnapping.” Sterling, 148 Ariz. at 136, 713 P.2d at 337 (emphasis added). Nowhere in A.R.S. § 13-1304(A), which sets forth the elements of kidnapping, however, is there a safe release requirement. Further, as distinguished from § 13-1304(A), § 13-1304(B) merely sets forth the classification scheme for the offense of kidnapping; it has nothing to do with the elements the state must prove to convict a defendant of kidnapping, nor does it create different offenses or degrees of kidnapping. See State v. Brady, 299 N.C. 547, 563, 264 S.E.2d 66, 75 (1980) (Construing a kidnapping statute similar to Arizona’s, the court stated, “[Subsection (A) ] defines the offense of kidnapping. Proof of the elements set forth therein is all that the statute requires for a conviction of kidnapping____ [Subsection (B)] merely prescribes the punishment for one convicted of kidnapping. It does not affect the elements of the offense of kidnapping or create a separate offense.”) (emphasis in original); State v. Leslie, 14 Ohio App.3d 343, 345, 471 N.E.2d 503, 506 (1984) (to convict a defendant of kidnapping, the state need not allege or establish that the defendant failed to release the victim in a safe place unharmed); State v. Cornute, 64 Ohio App.2d 199, 200-01, 412 N.E.2d 416, 417-18 (1979) (same).
The effect of § 13-1304(B) is to reduce the penalty imposable upon a defendant if the defendant safely returns his or her victim. Such safe return is thus a type of mitigating circumstance. See State v. Schneckloth, 210 Neb. 144, 149, 313 N.W.2d 438, 441 (1981) (Construing a kidnapping statute similar to Arizona’s, the court, in a thorough analysis, stated, “The factors listed in subsection ([B]) are not elements of the offense of kidnapping, but are simply mitigating factors which may reduce the sentence of those charged [with kidnapping].”). Accordingly, I would hold *663that, similar to the mitigating circumstances in § 13-703(G), the safe return of a victim by a kidnapper prior to the kidnapper’s arrest is a mitigating circumstance that must be proved by the kidnapper by a preponderance of the evidence. See Loonier v. State, 768 P.2d 1042, 1046-47 (Wyo. 1989) (Construing a kidnapping statute similar to Arizona’s, the court stated, “The statute defines a single crime, kidnapping, which carries a sentence of 20 years to life but provides for a reduced sentence based upon defendant’s conduct subsequent to the kidnapping____ Therefore, the defendant has the burden of going forward with evidence to show that the circumstances exist.”); see also State v. Fierro, 166 Ariz. 539, 551, 804 P.2d 72, 84 (1990) (a defendant must prove the existence of mitigating circumstances by a preponderance of the evidence), citing State v. Jordan, 126 Ariz. 283, 614 P.2d 825 (1980).
Placing the burden on the defendant to prove mitigating circumstances is not a violation of due process. See Walton v. Arizona, 497 U.S. 639,---, 110 S.Ct. 3047, 3055-56, 111 L.Ed.2d 511 (1990) (placing burden of proof on defendant to prove mitigating circumstances by a preponderance of the evidence is constitutionally permissible), aff'g State v. Walton, 159 Ariz. 571, 769 P.2d 1017 (1989). In addition, because the safe return of a victim is not an element of the statutory offense of kidnapping, I would hold that the trial judge may make the determination whether a defendant has met this burden. See State v. Stewart, 175 Mont. 286, 573 P.2d 1138, 1146 (1977) (Construing a kidnapping statute similar to Arizona’s, the court stated, “The release or nonrelease of a kidnapper’s victim is [a fact which determines only the severity of punishment], and it is within the power of the state to allow the trial court, rather than the jury, to make this factual determination.”); Brady, 299 N.C. at 563, 264 S.E.2d at 75 (“Since the factors set forth in subsection ([B]) relate to sentencing, it is for the trial judge to determine their existence or nonexistence from the evidence presented____”); State v. Williams, 295 N.C. 655, 669, 249 S.E.2d 709, 719 (1978) (“Normally a jury need only determine whether a defendant has committed the substantive offense of kidnapping____ The factors set forth in subsection ([B]) relate only to sentencing; therefore, their existence or nonexistence should properly be determined by the trial judge.”). To the extent that McMillen and Sterling are inconsistent with this analysis, I would overrule them.
Ill
THE INFORMANT’S TESTIMONY
As noted in Part 22, footnote 29, the majority declines to address the state’s argument that the trial court erred in suppressing the informant’s testimony. In this Part III, I address the state’s argument by first setting forth the facts surrounding defendant’s incarceration in the Pima County Jail, the dates on which the state charged defendant with kidnapping and murder, and the apparent rationale of the trial court’s decision to suppress the informant’s testimony. I then discuss the scope of the sixth amendment right to counsel and the remedy for its violation.
After laying this factual and legal foundation, I bifurcate the state’s argument and analyze first whether the trial court erred in suppressing the informant’s testimony during the guilt proceedings against defendant, and second, whether the trial court erred in suppressing the informant’s testimony during the sentencing proceedings against defendant as to the murder charge.
A. The Facts Surrounding Defendant’s Incarceration, the Dates on Which the State Charged Defendant with Kidnapping and Murder, and the Trial Court’s Ruling on Defendant’s Motion to Suppress the Informant’s Testimony
1. The Facts and the Dates
Defendant was arrested on September 20, 1984 in Kerrville, Texas in connection with Mary’s disappearance. One week later, on September 27,1984, the state filed a felony criminal complaint against defendant charging him with Mary’s kidnapping, *664in violation of A.R.S. §§ 13-1304(A)(3), -1304(B), -701, -702, -801, -803, -604(B), -604(D), and -604.01.
On October 31, 1984, defendant was transferred to the Pima County Jail. Housed in the same pod was the informant, a convicted felon. The informant, who had been transferred to Arizona from another state pending a rule 32 determination, had previously testified for the state as an informant. Although the state knew of his reputation as an informant, it did not deliberately bring the informant and defendant together.
The record indicates that although defendant did not speak to the informant for approximately one week, a “rapport” eventually developed between the two. On November 9, 1984, the informant left a message for Detective Leo Duffner of the Pima County Sheriff’s Department stating that he wanted to talk to the detective. The next day, Det. Duffner met with the informant at the Pima County Jail. During that meeting, the informant told Det. Duffner that he, the informant, had obtained and would continue to obtain information from defendant relating to Mary’s disappearance. (At that time, Mary’s remains had not yet been found.) Det. Duffner replied by telling the informant not to obtain any additional information and that he did not want the informant working for him, the Pima County Sheriff’s Department, or the County Attorney’s office.
Notwithstanding Det. Duffner’s instruction not to obtain additional information from defendant, the informant continued to obtain information, which he recorded in copious notes. In addition, although Det. Duffner had told the informant to stop obtaining information, Det. Duffner continued meeting with the informant to receive the forthcoming information. In fact, Det. Duffner testified that after the November 10, 1984 meeting, he met with the informant again on November 14, November 26, December 3, and December 19 of 1984, and on April 17, 1985.
Det. Duffner’s testimony that he did not meet with the informant from December 19, 1984 to April 17, 1985 is significant and consistent with statements made by the informant during a rule 15, Arizona Rules of Criminal Procedure, interview conducted from August 28, 1986 to September 18, 1986 by defendant’s trial counsel. During that interview, the informant told of a December 18, 1984 discussion he had with defendant during which defendant detailed the events of September 17, 1984 and admitted kidnapping and murdering Mary. After the informant told about the December 18, 1984 discussion, the following colloquy took place:
Q. [By defendant’s trial counsel] Did you talk to [defendant] after that?
A. [By the informant] After a while.
Q. Did you talk to him for the next four months?
A. Off and on, yes.
Q. Did you take any notes?
A. No.
Q. What happened to all the notes that are in the conversations that you had from December until April?
A. What more was there to find out?
Q. More details.
A. I felt I — I felt out that I had known everything that there was to know.
Q. That’s it, now. You really didn’t (inaudible).
A. No. Not from January to April.
Q. Not one word about it.
A. He surely talked about it from time to time.
Q. But, all of it was repetitious.
A. Redundant.
Q. Not one piece of new information.
A. —
Q. Correct?
A. Not that I can recall.
After learning that the informant had obtained virtually no new information from defendant after December 18, 1984, defendant’s trial counsel asked the informant about the April 17, 1985 meeting between Det. Duffner and the informant:
Q. [By defendant’s trial counsel] Now, you saw Duffner back on the 17th of April, 1985.
A. [By the informant] That’s correct.
Q. You wanted to see him again.
*665A. Right.
Q. So, for four months you didn’t need to see him anymore.
A. -That’s correct.
Q. Then you called him back. Now, you’ve got a new message, right?
A. Right.
Q. And what’s that now. What do you got for him now?
A. I heard the body had been found. And, I called him and told him I wanted to see him. And I gave him the last — uh, I gave him the notes on what [defendant] had said after the body had been found.
On May 15, 1985 — approximately one month after the April 17, 1985 meeting— defendant was indicted by a grand jury and charged with Mary’s murder in violation of A.R.S. §§ 13-1105, -703, and -710. Although the record indicates that Det. Duffner and other state agents met with the informant in another state after April 17, 1985, there is no indication that the informant obtained any information from defendant on or after May 15, 1985.
2. The Trial Court’s Ruling
Before trial, defendant moved to suppress the informant’s testimony. In his motion, defendant argued that the informant’s conduct violated his fifth amendment right against compelled self-incrimination because the informant did not give him Miranda warnings. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). This argument has been rendered meritless by the Supreme Court’s recent ruling in Illinois v. Perkins, 496 U.S. 292, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990). In Perkins, the Court held that “[conversations between suspects and undercover agents do not implicate the concerns underlying Miranda." Perkins, 496 U.S. at 296, 110 S.Ct. at 2397. “Miranda was not meant to protect suspects from boasting about their criminal activities in front of persons whom they believe to be their cellmates.” Perkins, 496 U.S. at 298, 110 S.Ct. at 2398. In addition, defendant has not argued, nor is there any evidence, that his statements to the informant were coerced in violation of the fifth amendment as interpreted by Arizona v. Fulminante, — U.S. -, 111 S.Ct. 1246, 1261, 113 L.Ed.2d 302 (1991) (incriminating statements obtained by paid jailhouse informant through coercion held inadmissible), aff'g 161 Ariz. 237, 778 P.2d 602 (1988). Accordingly, I would find no violation of defendant’s fifth amendment rights.
Defendant also argued in support of his motion to suppress that the informant was a state agent and, therefore, his deliberate elicitation of incriminating statements from defendant violated defendant’s sixth amendment right to counsel. In opposition to this argument, the state candidly recognized that defendant had been charged with kidnapping at the time the informant deliberately elicited the incriminating statements from him and, therefore, his right to counsel as to the kidnapping charge had attached. The state argued, however, that defendant had not been charged with murder at the time the informant obtained the incriminating statements and, therefore, defendant’s right to counsel as to the murder charge had not attached. The state argued that, because defendant’s right to counsel as to the murder charge had not attached at the time the informant obtained the incriminating statements from defendant, those statements were not obtained in violation of defendant’s sixth amendment right to counsel, and, therefore, the informant’s testimony should not be suppressed.
At the hearing on defendant’s motion to suppress the informant’s testimony, the attention given by the trial court to the state’s argument was eclipsed by the attention it gave to defendant’s argument that the informant was a state agent. Ultimately, the trial court granted defendant’s motion and ruled that “[the informant] will not be a witness as to any of [defendant’s incriminating] statements.” The trial court granted defendant’s motion based on its conclusion that the informant was, in fact, a state agent, and that defendant’s right to counsel had attached and was violated as to both the kidnapping charge and the murder charge because those crimes were, as stated by the trial court, “so interrelated.”
*666B. The Scope of the Sixth Amendment Right to Counsel and the Remedy for its Violation
1. The Right to Counsel
The sixth amendment right to counsel does not apply to private conduct. Maine v. Moulton, 474 U.S. 159, 176, 106 S.Ct. 477, 487, 88 L.Ed.2d 481 (1985) (“|T|he 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.”). Rather, it applies only to conduct on the part of the state or its agents. Moulton, 474 U.S. at 176, 106 S.Ct. at 487 (“[T]he 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.”) (emphasis added).
The sixth amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” U.S. Const, amend. 6. The Supreme Court first discussed the sixth amendment right to counsel in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). Since Powell, the Court has developed a substantial body of sixth amendment right to counsel law which explains both the purpose of the sixth amendment right to counsel and when that right attaches.
The overarching purpose of the right to counsel is to safeguard those “rights deemed essential for the fair prosecution of a criminal proceeding.” Moulton, 474 U.S. at 169, 106 S.Ct. at 483. More specifically, the right to counsel affords a defendant charged with a crime the right to be heard. Justice Sutherland expounded on this idea:
The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him.
Powell, 287 U.S. at 68-69, 53 S.Ct. at 64; see also Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). More recently, the Court has said that the “core purpose” of the sixth amendment right to counsel is “to assure aid at trial, ‘when the accused [is] confronted with both the intricacies of the law and the advocacy of the public prosecutor.’ ” United States v. Gouveia, 467 U.S. 180, 188-89, 104 S.Ct. 2292, 2298, 81 L.Ed.2d 146 (1984), quoting United States v. Ash, 413 U.S. 300, 309, 93 S.Ct. 2568, 2573, 37 L.Ed.2d 619 (1973).
As intimated in the language of the sixth amendment itself and in the Supreme Court precedent discussed immediately above, the purpose of the right to counsel is served, and therefore the right to counsel attaches, only after adversary judicial criminal proceedings have been initiated. Prior to that time, there is no “criminal prosecution[ ],” no “accused,” and no need for a “defence.” U.S. Const, amend. 6.
Likewise, as Justice Sutherland recognized, the right to be heard becomes crucial only “[i]f [a defendant is] charged with a crime” for which “he may be put on trial....” Powell, 287 U.S. at 69, 53 S.Ct. at 64 (emphasis added). In addition, only after the initiation of adversary judicial criminal proceedings does a defendant need to prepare a “defense” with “the guiding hand of counsel____” Powell, 287 U.S. at 69, 53 S.Ct. at 64. Finally, it is only after the initiation of adversary judicial criminal proceedings
that the government .has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a *667defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.
Gouveia, 467 U.S. at 189, 104 S.Ct. at 2298, quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972). For all of these reasons, the Supreme Court in Gouveia expressly held that the sixth amendment right to counsel attaches only after the initiation of adversary judicial criminal proceedings. Gouveia, 467 U.S. at 189, 104 S.Ct. at 2298.
2. The Exclusionary Rule
Like the substantial body of law that developed around the sixth amendment right to counsel and Powell, a substantial body of law has developed since the Supreme Court first created the “exclusionary rule” in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). The exclusionary rule, originally applied only in federal prosecutions for fourth amendment violations, Weeks, 232 U.S. 383, 34 S.Ct. 341, has been expanded to apply to the states through the due process clause of the fourteenth amendment, Mapp v. Ohio, 367 U.S. 643, 654-55, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081 (1961), and to fifth amendment, Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966), and sixth amendment, Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246 (1964), violations.
The purpose of the exclusionary rule is simply stated: it is to discourage unconstitutional acts by law enforcement officials. United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 619-20, 38 L.Ed.2d 561 (1974). The scope of the rule is somewhat more difficult to state. I begin, however, by noting that the Supreme Court has expressly recognized that the rule is not absolute:
Despite its broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons. As with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served.
Calandra, 414 U.S. at 348, 94 S.Ct. at 620 (exclusionary rule not applied during grand jury proceedings); see also United States v. Leon, 468 U.S. 897, 926, 104 S.Ct. 3405, 3422, 82 L.Ed.2d 677 (1984) (exclusionary rule not applied when law enforcement officials relied in good faith upon invalid search warrant); Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct. 3037, 3052, 49 L.Ed.2d 1067 (1976) (exclusionary rule not applied during federal habeas corpus review); Walder v. United States, 347 U.S. 62, 66, 74 S.Ct. 354, 356, 98 L.Ed. 503 (1954) (exclusionary rule not applied during cross examination of defendant). Under Calandra and subsequent cases, then, the question whether to apply the exclusionary rule is determined by weighing the extent to which its application will deter law enforcement officials from committing unconstitutional acts against the extent to which its application will deflect the truthfinding process, free the guilty, and generate disrespect for the law and the administration of justice. Stone, 428 U.S. at 485-95, 96 S.Ct. at 3048-53; see also State v. Bolt, 142 Ariz. 260, 269-73, 689 P.2d 519, 528-532 (1984) (Cameron, J., and Hays, J., separately specially concurring) (proposing that courts, in determining whether the exclusionary rule should be applied, should weigh the costs of applying the rule against the benefits of applying the rule); State v. Alfaro, 127 Ariz. 578, 579-80, 623 P.2d 8, 9-10 (1980) (under weighing analysis, exclusionary rule held not applicable during probation revocation proceedings); James Duke Cameron & R. Lustiger, The Exclusionary Rule: A Cost Benefit Analysis, 101 F.R.D. 109 (1984) (reviewing the costs and benefits of the exclusionary rule and concluding that courts should adopt a balancing approach in determining whether the exclusionary rule should be applied).
C. Did the Trial Court Err in Excluding the Informant’s Testimony During the Guilt Proceedings Against Defendant?
A trial court’s decision on a motion to suppress is reviewed under a “clear abuse *668of discretion” standard. See State v. Fisher, 141 Ariz. 227, 236, 686 P.2d 750, 759 (1984) (“It is well established in this state that a trial court’s ruling on a motion to suppress will not be disturbed absent a clear abuse of discretion.”), citing State v. Adamson, 136 Ariz. 250, 665 P.2d 972 (1983); State v. Ferreira, 128 Ariz. 530, 627 P.2d 681 (1981). I do not believe that the trial court clearly abused its discretion in excluding the informant’s testimony during the guilt proceedings against defendant. I base this conclusion on (1) my finding that the trial court did not clearly abuse its discretion in finding that the informant was a state agent at the time he obtained the incriminating statements from defendant; (2) the fact that defendant’s right to counsel as to the kidnapping charge had attached and was violated when the informant obtained the incriminating statements from defendant; and (3) the fact that the weighing required in determining whether the exclusionary rule should be applied tipped in favor of excluding the informant’s testimony.
1. The Informant as a State Agent
I have reviewed the record to determine whether the trial court abused its discretion in finding that the informant was a state agent. Without giving any more detail than that provided in Part 111(A)(1) of this Special Concurrence, but noting that numerous additional phone calls, personal visits, conversations, etc., were held between Det. Duffner and other state agents and the informant than those described in Part 111(A)(1), and recognizing that the question whether the informant was a state agent is a close one, I would conclude that the trial court’s finding that the informant was, in fact, a state agent at the time he obtained the incriminating statements from defendant is supported by both the facts and the law. See, e.g., Maine v. Moulton, 474 U.S. 159, 176-80, 106 S.Ct. 477, 487-89, 88 L.Ed.2d 481 (1985) (Court affirmed trial court’s finding that informant was state agent); United States v. Henry, 447 U.S. 264, 270-71, 100 S.Ct. 2183, 2187, 65 L.Ed.2d 115 (1980) (Court upheld court of appeals’ finding that informant’s conduct was attributable to the government).
2. Defendant’s Sixth Amendment Right to Counsel
The state charged defendant with Mary’s kidnapping on September 27, 1984. Thus, defendant’s right to counsel as to the kidnapping charge attached at that time. United States v. Gouveia, 467 U.S. 180, 188, 104 S.Ct. 2292, 2297, 81 L.Ed.2d 146 (1984). After being charged with kidnapping, defendant was taken to the Pima County Jail where he met the informant. Because the informant can properly be characterized as a state agent, and because the informant obtained the incriminating statements from defendant after defendant’s right to counsel as to the kidnapping charge had attached, all statements obtained by the informant from defendant were obtained in violation of defendant’s right to counsel as to the kidnapping charge. See Moulton, 474 U.S. at 176-80, 106 S.Ct. at 487-89; Henry, 447 U.S. at 270-75, 100 S.Ct. at 2186-89.
While defendant’s right to counsel had already attached as to the kidnapping charge at the time the informant obtained the incriminating statements from defendant, the informant appears to have obtained no statements from defendant after defendant’s right to counsel as to the murder charge attached. In fact, by December 18, 1984, almost 5 full months before defendant’s May 15, 1985 indictment for Mary’s murder, the informant believed he “[knew] everything that there was to know” about the kidnapping and murder. Further, the only new statements the informant obtained after December 18, 1984 were defendant’s statements relating to the finding of Mary’s body; and those statements were provided to Det. Duffner on April 17, 1985, almost one month before defendant was indicted for Mary’s murder. Accordingly, defendant’s sixth amendment right to counsel os to the murder charge was not violated.
3. The Exclusionary Rule
The trial court properly applied the exclusionary rule and suppressed the infor*669mant’s testimony during the guilt proceedings against defendant. As stated above, the informant obtained the incriminating statements in violation of defendant’s right to counsel as to the kidnapping charge. Although an argument could be made that the appropriate remedy in this case was to suppress the informant’s testimony only as it might prejudice defendant as to the kidnapping charge,31 the trial court did not clearly abuse its discretion in finding that, in this case, the kidnapping charge and murder charge were “so interrelated” that the appropriate remedy was to exclude the informant’s testimony in its entirety during the guilt proceedings against defendant.
The trial court reasonably could have concluded that the overarching purpose of the sixth amendment right to counsel — to safeguard those rights deemed essential for the fair prosecution of a criminal proceeding, Moulton, 474 U.S. at 169, 106 S.Ct. at 483 — would have been frustrated if the informant’s testimony was admitted. Specifically, the trial court reasonably could have concluded that any limiting instruction would have been ineffective, and the jury, although instructed otherwise, would have considered the informant’s testimony as to the kidnapping charge as well as the murder charge. In fact, there appears to be no way that the jury could have considered the informant’s testimony only as to the first degree murder charge, given the fact that in order for the jury to find defendant guilty of first degree murder, it had to find and did find that defendant killed Mary in the course of and in furtherance of the kidnapping, i.e., a prerequisite to finding defendant guilty of first degree felony murder was a finding that defendant kidnapped Mary.
Moreover, the trial court reasonably could have concluded that the extent to which the application of the exclusionary rule during the guilt proceedings against defendant would deter unconstitutional acts by law enforcement officials outweighed the risk of deflecting the truth-finding process, freeing the guilty, or generating disrespect for the law and the administration of justice. Stone v. Powell, 428 U.S. 465, 485-95, 96 S.Ct. 3037, 3048-53, 49 L.Ed.2d 1067 (1976). In sum, I would affirm the trial court’s decision to suppress the informant’s testimony in its entirety during the guilt proceedings against defendant.
D. Did the Trial Court Err in Excluding the Informant’s Testimony During the Sentencing Proceedings Against Defendant as to the Murder Charge?
As an initial matter, the state properly preserved for appeal the trial court’s decision to suppress the informant’s testimony during the sentencing proceedings against defendant as to the murder charge. At the beginning of his remarks to the court during the sentencing proceeding, the prosecutor asked to have the informant’s deposition “marked as an offer of proof for appellate purposes.” Specifically, the prosecutor believed the deposition would support the state’s argument that defendant killed the victim in an especially heinous, cruel, or depraved manner. See A.R.S. § 13-703(F)(6). Consistent with its earlier ruling, the trial court did not admit the informant’s testimony for sentencing purposes, but, over defense counsel’s objection, allowed the informant’s deposition to be marked for appellate purposes as requested by the prosecutor. This offer properly preserved the issue for appeal.
I believe that the trial court clearly abused its discretion in excluding the informant’s testimony during the sentencing proceedings against defendant as to the murder charge. As stated above, defendant’s right to counsel as to the murder charge was not violated. Thus, as to that charge, the exclusionary rule was not implicated. The critical inquiry thus becomes whether the exclusionary rule, as implicat*670ed by the violation of defendant’s right to counsel as to the kidnapping charge, should be applied to suppress the informant’s testimony during the sentencing proceedings against defendant as to the murder charge when defendant’s right to counsel as to that charge was not violated and such testimony could not prejudice defendant as to the kidnapping charge for which he had already been found guilty and for which he was also being sentenced.
Based on the weighing required under the exclusionary rule, I conclude that the answer to this inquiry is no. I find the analysis in United States v. Lee, 540 F.2d 1205 (4th Cir.1976), to be helpful to my weighing analysis. Defendant Lee was convicted of illegal possession of firearms. The district court judge, in sentencing Lee to the maximum term permitted, specifically relied on a prior conviction for possession of heroin, even though that conviction had been reversed on appeal because it was based on the fruits of an illegal search. Lee argued that the district court judge should not have been allowed to consider the heroin conviction in sentencing him. The court of appeals disagreed.
In weighing the costs of applying the exclusionary rule against the extent to which its application fulfills its purpose of deterring unconstitutional acts by law enforcement officials, the Lee court first recognized the general rule that a “judge may, before sentencing, ‘conduct an inquiry broad in scope, largely unlimited either as to kind of information he may consider, or the source from which it may come.’ ” Lee, 540 F.2d at 1210, quoting United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972). The court then recognized that “[m]ost illegally-obtained evidence ... is not inherently unreliable____” Lee, 540 F.2d at 1211. The court considered the restriction on a sentencing judge’s inquiry and the loss of potentially reliable information to be a significant cost.
After recognizing the significant cost associated with suppressing the evidence, the court focused on the extent to which application of the exclusionary rule during sentencing would further the rule’s purpose. The court concluded:
We think that if the exclusionary rule were extended to sentencing in the ordinary case, its additional deterrent effect would be so minimal as to be insignificant. Generally, law enforcement officers conduct searches and seize evidence for purposes of prosecution and conviction — not for the purpose of increasing a sentence in a prosecution already pending or one not yet begun. If they are to be deterred from official lawlessness, it would seem obvious that the only effective deterrence is the threat that the prosecution arising out of the specific search and seizure in which they acted illegally would be rendered ineffective. The additional threat that a future sentence might be less severe because they acted unlawfully can be predicted to have little practical effect to accomplish its main objective.
Lee, 540 F.2d at 1211; see also United States v. Graves, 785 F.2d 870, 876 (10th Cir.1986) (sentencing court entitled to consider prior dismissed charges and alleged offenses for which charges were not filed because of illegally obtained evidence); United States v. Butler, 680 F.2d 1055, 1056 (5th Cir.1982) (fruit of illegal search admissible during sentencing because no potential for inaccuracy and deterrent value of excluding illegally obtained evidence at sentencing substantially less than at trial); United States v. Larios, 640 F.2d 938, 941-42 (9th Cir.1981) (sentencing judge properly considered illegally obtained evidence).
I now apply these considerations to the facts of this case. Initially, I believe that in determining whether to impose the death sentence, the trial judge should, within the parameters of A.R.S. § 13-703 and rule 15.1(g)(2), Arizona Rules of Criminal Procedure, be able to “ ‘conduct an inquiry broad in scope, largely unlimited either as to kind of information he may consider, or the source from which it may come.’ ” Lee, 540 F.2d at 1210, quoting United States v. Tucker, 404 U.S. at 446, 92 S.Ct. at 591; see also Larios, 640 F.2d at 942 (judges given broad discretion during sentencing so *671sentence is properly in tune with defendant); United States v. Schipani, 435 F.2d 26, 27 (2d Cir.1970) (“A sentencing judge’s access to information should be almost completely unfettered in order that he may ‘acquire a thorough acquaintance with the character and history of the man before [him].’ ”), quoting United States v. Doyle, 348 F.2d 715, 721 (2d Cir.1965). Because the trial court rejected the informant’s evidence on other grounds, no finding was made as to reliability, and the record does not lead me to believe that the incriminating statements made by defendant to the informant are “inherently unreliable.” See Lee, 540 F.2d at 1211. Thus, the costs associated with applying the exclusionary rule in the Lee case are also present here.
Moreover, I believe that the exclusionary rule’s deterrent effect was sufficiently achieved by the trial court’s suppression of the informant’s testimony during the guilt proceedings against defendant. I agree with the Schipani court that “applying the exclusionary rule for a second time at sentencing after having already applied it once at the trial itself would not add in any significant way to the deterrent effect of the rule.” Schipani, 435 F.2d at 28; see also Lee, 540 F.2d at 1210-12 (exclusionary rule not applied during sentencing proceeding); United States v. Lynch, 934 F.2d 1226 (11th Cir.1991) (same), cert. denied, — U.S. -, 112 S.Ct. 885, 116 L.Ed.2d 788 (1992); United States v. McCrory, 930 F.2d 63 (D.C.Cir.1991) (same), cert. denied, — U.S. -, 112 S.Ct. 885, 116 L.Ed.2d 788 (1992); United States v. Torres, 926 F.2d 321 (3rd Cir. 1991) (same); United States v. Graves, 785 F.2d 870 (10th Cir.1986) (same); United States v. Vandemark, 522 F.2d 1019 (9th Cir.1975) (same); but see Verdugo v. United States, 402 F.2d 599 (9th Cir.1968) (exclusionary rule applied during sentencing proceeding when evidence was illegally obtained for the purpose of increasing the defendant’s sentence). This is especially true where, as here, the evidence was obtained not in violation of defendant’s right to counsel as to the crime for which defendant was being sentenced — murder—but rather in violation of defendant’s right to counsel as to the kidnapping.
In concluding that the trial court clearly abused its discretion in suppressing the informant’s testimony during the sentencing proceedings against defendant as to the murder charge, I do not rely on the language in Moulton that “[i]ncriminating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached, are, of course, admissible____” Moulton, 474 U.S. at 180 n. 16, 106 S.Ct. at 489 n. 16 (emphasis added). I could not, in good faith, call Mary’s murder an “other erime[]” as I believe the Supreme Court meant that term. See, e.g., Moran v. Burbine, 475 U.S. 412, 431-32, 106 S.Ct. 1135, 1146-47, 89 L.Ed.2d 410 (1986) (no sixth amendment violation when the state deliberately instigated meeting between defendant and government informant and recorded incriminating statements relating to ongoing cocaine investigation even though defendant had been charged for the sale of marijuana). Rather, I recognize that Mary’s kidnapping and murder were transactionally related. The fact that the crimes were transactionally related, however, does not dilute my belief that, on these facts, the exclusionary rule’s application at the sentencing proceedings against defendant as to the murder charge was improper.
Even though I would find that the trial court erred in suppressing the informant’s testimony during the sentencing proceedings as to the murder charge, I would not remand this case for a hearing to determine whether the informant’s testimony established a § 13-703(F)(6) aggravating circumstance. I would not do so because the state, presumably knowing that a remand in this case would result in additional and unforeseen delays and possibly the proliferation of issues, has not asked this court to remand. However, in the event defendant is resentenced for any reason in the future, I would allow the state to seek to introduce the informant’s testimony at that time.
*672IV
DOUBLE JEOPARDY ISSUES IN THE EVENT OF RESENTENCING
As noted in Part 23, footnote 30, defendant argues that the double jeopardy clause would prohibit the trial court from finding that he killed Mary in an especially heinous, cruel, or depraved manner. I would reject this argument, as did the Supreme Court in Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986). In Poland, the Court stated,
We reject the fundamental premise of petitioners’ argument, namely, that a capital sentencer’s failure to find a particular aggravating circumstance alleged by the prosecution always constitutes an “acquittal” of that circumstance for double jeopardy purposes____ [T]he proper inquiry is whether the sentencer or reviewing court has “decided that the prosecution has not proved its case” that the death penalty is appropriate____
Aggravating circumstances are not separate penalties or offenses, but are “standards to guide the making of [the] choice” between the alternative verdicts of death and life imprisonment____ Thus, under Arizona’s capital sentencing scheme, the judge’s finding of any particular aggravating circumstance does not of itself “convict” a defendant (i.e., require the death penalty), and the failure to find any particular aggravating circumstance does not “acquit” a defendant (i.e., preclude the death penalty).
[T]he Double Jeopardy Clause does not require the reviewing court ... to ignore evidence in the record supporting another aggravating circumstance which the sentencer has erroneously rejected.
Poland, 476 U.S. at 156-57, 106 S.Ct. at 1755-56 (citations and footnote omitted).
V
CONCLUSION
I agree with the majority that defendant’s convictions and sentences must be affirmed. Unlike the majority, however, I believe that this court should make the Enmund finding instead of relying on the jury’s implicit Enmund finding. Further, because I believe that the two cases cited by defendant in support of reversing his kidnapping sentence were decided incorrectly, see State v. McMillen, 154 Ariz. 322, 742 P.2d 823 (App.1987), and State v. Sterling, 148 Ariz. 134, 713 P.2d 335 (App. 1985), I would overrule them. Finally, I believe that the trial court incorrectly suppressed the informant’s testimony during the sentencing proceedings against defendant as to the murder charge, and, in the event defendant is resentenced for any reason in the future, I would allow the state to seek to introduce that testimony.
. For example, the trial court might have admitted the informant’s testimony and instructed the jury that it was to be considered only with regard to defendant’s guilt as to the murder charge and not as to the kidnapping charge.
See, e.g., Moulton, 474 U.S. at 180 n. 16, 106 S.Ct. at 489 n. 16. ("Incriminating statements pertaining to other crimes, as to which the Sixth Amendment right has not attached, are, of course, admissible____”).