dissenting, in which
HUNTLEY, Justice, concurs.The record before us is literally fraught with error at every stage of the proceedings. However, in considering that record, I focus on but two of the more prominent errors that mandate reversal.
I.
As the majority notes, the appellant was tried in Washington for the murder of Scott Currier prior to his Idaho trial for the murder of Kimberly Palmer. Appellant was acquitted for Currier’s murder by a Washington jury. Despite that acquittal, however, and over appellant’s timely objection, evidence connecting appellant to Currier’s death was introduced in the Palmer trial. Appellant contends that the admission of this evidence was error. I agree and would, on this basis, reverse.
The evidence submitted by the prosecution linking appellant to the Currier murder was both extensive and highly prejudicial. *128The proffered evidence included the following photographs of Currier’s body, both at the site at which it was discovered and at the autopsy; photographs of evidence seized from appellant’s house relating to Currier’s murder; descriptions by investigating officers of both the murder and the evidence seized from appellant’s home; a thorough description by the coroner of the autopsy performed on Currier; and even reference by a Spokane County identification officer to Currier as “the victim.” All of this in a trial for the murder of Kimberly Palmer!
However, in view of the United States Supreme Court case of Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), and its progeny, it is clear that the doctrine of collateral estoppel bars the use of such evidence. Ashe applied the collateral estoppel to criminal proceedings as part of the Fifth Amendment guarantee against double jeopardy. As the Supreme Court noted:
“For whatever else that constitutional guarantee may embrace, North Carolina v. Pearce, 395 U.S. 711, 717 [89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969)], it surely protects a man who has been acquitted from having to ‘run the gauntlet’ a second time. Green v. United States, 355 U.S. 184, 190 [78 S.Ct. 221, 225, 2 L.Ed.2d 199 (1957)].”
397 U.S. at 446, 90 S.Ct. at 1195.
Following the Supreme Court’s lead in Ashe, the Fifth Circuit Court of Appeals applied collateral estoppel to cases such as the one before us where the state seeks to introduce evidence of prior acquitted criminal charges as evidence in a subsequent prosecution. In Wingate v. Wainwright, 464 F.2d 209 (5th Cir.1972), the Fifth Circuit Court stated:
“We do not perceive any meaningful difference in the quality of ‘jeopardy’ to which a defendant is again subjected when the state attempts to prove his guilt by relitigating a settled fact issue which depends upon whether the relitigated issue is one of ‘ultimate’ fact or merely an ‘evidentiary’ fact in the second prosecution. In both instances the state is attempting to prove the defendant guilty of an offense other than the one of which he was acquitted. In both instances the relitigated proof is offered to prove some element of the second offense. In both instances the defendant is forced to defend again against charges or factual allegations which he overcame in the earlier trial. We are in agreement with Judge Friendly’s conclusion in United States v. Kramer, 289 F.2d 909 (2d Cir.1961).
“ ‘The Government is free, within the limits set by the Fifth Amendment, ... to charge an acquitted defendant with other crimes claimed to arise from the same or related conduct; but it may not prove the new charge by asserting facts necessarily determined against it on the first trial, no matter how unreasonable the Government may consider that determination to be.’
“... The prosecution simply may not in the course of any subsequent trial of the same parties relitigate an issue which was determined as an issue of ultimate fact in an earlier prosecution.
“... We hold that under Ashe where the state in an otherwise proper prosecution seeks for any purpose to relitigate an issue which was determined in a prior prosecution of the same parties, then the evidence offered for such a relitigation must be excluded from trial and the state must be precluded from asserting that the issue should be determined in any way inconsistent with the prior determination.
“It is fundamentally unfair and totally incongruous with our basic concepts of justice to permit the sovereign to offer proof that a defendant committed a specific crime which a jury of that sovereign has concluded he did not commit. Otherwise a person could ever remove himself from the blight and suspicious aura *129which surround an accusation that he is guilty of a specific crime.” 1
464 F.2d at 213-14.
See also Blackburn v. Cross, 510 F.2d 1014 (5th Cir.1975); State v. Perkins, 349 So.2d 161 (Fla.1977).
The majority argues in response that the Washington jury which acquitted the appellant of Currier’s murder may have done so on the basis of a reasonable doubt as to whether Currier was killed in Washington or Idaho and thus acquitted because of that doubt. Further, the jury “could very well have believed that appellant had a connection with Currier’s death, but that the state did not prove beyond a reasonable doubt that appellant was the actual murderer of Currier.” And, finally, the majority says that “a verdict of acquittal in the previous case does not preclude all possibility of knowledge on the part of appellant of the [relevant] circumstances.”2 Supra, at 37. I contend that we need not and should not speculate as to the jury’s basis of decision. The simple fact is that twelve men and women were asked to decide whether Scott Currier was murdered by Donald Paradis. They reached a unanimous decision that Paradis was “not guilty” of murdering Scott Currier. Because Donald Paradis was put once in jeopardy of this charge and succeeded in demonstrating his innocence to a jury of his peers, he should not have been forced to essentially redefend himself against that same murder charge in additional proceedings.
However, the majority also claims that “the evidence of Currier’s death and its connection to appellant was not introduced for the primary purpose of showing the guilt of appellant regarding the death of Currier, but rather to explain to the jury a possible motive the appellant may have had to participate in the murder of Kimberly Palmer and to connect him with that murder.” Supra, at p. 37. My rejoinder is essentially two-fold. First, it is obvious that the evidence in question could not be used to show appellant’s guilt with regard *130to the Currier murder — appellant had just been acquitted of that crime, and even the majority must agree that the double jeopardy clause precludes actually retrying a person for the same crime.3 Thus, the majority’s reasoning that the evidence of appellant’s complicity in the Currier murder is not meant to actually show appellant’s guilt is tautological and in fact proves too much because it will always be true. The prosecution will always want such evidence for some other reason than to prove the defendant’s guilt — either for proof of motive, intent, a common scheme or plan, or even to provide, as Judge Haman said in this case, a “rational and cohesive scenario.” Such “primary” use of the evidence is precisely what was considered and rejected in Wingate and Blackburn. It should have been rejected in this case as well.
Second, if it is indeed true that the prosecution was not attempting to show that Paradis in fact murdered Currier, I wholly fail to comprehend the relevance of photographs depicting Currier's mutilated corpse and other evidence relating not to the murder of Kimberly Palmer, but to the murder of Scott Currier.4 In view of prosecution witnesses referring to Currier as “the victim,” the jury is certainly to be forgiven if it became confused as to precisely for which crime they were trying Donald Para-dis. Even assuming, arguendo, that some modicum of truth existed in the conclusion of the trial court that evidence of the Currier murder was necessary to provide for the jury a “rational and cohesive scenario,” was it absolutely necessary to parade before the jury all the gory details of a murder for which the appellant had been acquitted? In my view, the trial court could clearly have satisfied any such need to portray a rational and cohesive scenario by permitting the State to show the fact of Scott Currier’s death and of his relationship with Kimberly Palmer, while at the same time excluding the lurid details of the event.5 See State v. Sharp, 101 Idaho 498, 515, 616 P.2d 1034, 1051 (1980) (Bistline, J., dissenting). Truly, the effect of the accumulated testimony concerning Scott Currier’s murder was to seriously prejudice the appellant and force him to “run the gauntlet a second time,” Ashe, supra, by again refuting evidence of a crime for which he had already been acquitted.
Even if this Court were not prepared to adopt the view that notions of collateral estoppel are sufficient to bar evidence of prior criminal charges for which a defendant has been acquitted, the Court, nevertheless, could and should have held the probative value of such evidence to be outweighed by the prejudice it created for the appellant. Previous Idaho case law in this area has extended the rule of State v. Needs, 99 Idaho 883, 591 P.2d 130 (1979) to evidence “of other crimes for which [defendants] have not been charged.” State v. Izatt, 96 Idaho 667, 534 P.2d 1107 (1975) (emphasis added). See State v. Crawford, 99 Idaho 87, 577 P.2d 1135 (1978). But, before today it has never been the law in Idaho that evidence of prior acquitted criminal charges are admissible on any of the justifications in Needs. In this case, *131the defendant had been charged — and acquitted. I regret the Court’s unfortunate decision to further extend the Needs rule to evidence of crimes for which the defendant has been acquitted as well as not charged, and would hold such evidence to be inadmissible.
The majority cites 86 A.L.R.2d 1132 for the proposition that “evidence of a prior acquitted crime is generally allowed if it falls within one of the recognized exceptions.” Supra, at 36. However, the comments of that annotation’s author are instructive in this context. After noting that, indeed, “the numerical weight of authority” had adopted the rule cited by the majority, the author states the following:
“On the other hand, a few authorities take the view that, as a general proposition, evidence as to another offense of which the defendant was acquitted is not admissible. This view rests primarily on the persuasive ground that defendant’s acquittal of an offense should relieve him from having to answer again, at the price of conviction for that offense or another, evidence which amounts to a charge of a crime of which he has been acquitted.
“In view of the fact that some of the courts which follow the rule under which, notwithstanding defendant’s acquittal of another offense, evidence of the facts which were the basis of the prosecution is admissible concede that upon his introducing the record of acquittal, that record is to be regarded as a conclusive adjudication that the defendant did not commit the other offense, and that the jury should be so instructed, it seems preferable not to submit to the jury the facts regarding the other offense, since the impression, unfavorable to the defendant, resulting from his former arrest and the charge of crime at an earlier occasion never can be erased from the mind of the jury.”
86 A.L.R.2d 1132, 1135 (1962) (emphasis added).
In addition, however, there is ample authority for the proposition that evidence of prior acquitted crimes should be excluded as involving undue prejudice to the defendant. State v. Little, 87 Ariz. 295, 350 P.2d 756 (1960); Asher v. Commonwealth, 324 S.W.2d 824 (Ky.1959); McDowell v. State, 142 Tex.Cr.R. 530, 155 S.W.2d 377 (1941); People v. Milano, 59 App.Div.2d 852, 399 N.Y.S.2d 226 (1977); United States v. Gurney, 418 F.Supp. 1265 (D.C.Fla.1976); People v. Ulrich, 30 Ill.2d 94, 195 N.E.2d 180 (1963); People v. Corbeil, 77 Mich.App. 691, 259 N.W.2d 193 (1977); State v. Kerwin, 133 Vt. 391, 340 A.2d 45 (1975); People v. Atkins, 96 Mich.App. 672, 293 N.W.2d 671 (1980); Stuart v. State, 561 S.W.2d 181 (Tex.Cr.App.1978); People v. Bouton, 50 N.Y.2d 130, 428 N.Y.S.2d 218, 405 N.E.2d 699 (1980); State v. Naranjo, 94 N.M. 407, 611 P.2d 1101 (1980); State v. Anonymous, 34 Conn.Sup. 689, 389 A.2d 1270 (1978). The majority states, in justifying the admissibility of the evidence concerning the Currier murder, that “regardless of his guilt or innocence in Currier’s death, the evidence of that death is still highly relevant in showing a possible motive for appellant’s involvement in Palmer’s murder.” Supra, at 37. However, in a similar case involving the trial court’s admission of a prior criminal charge for which the defendant was acquitted on the basis that it evidenced a common scheme or plan encompassing the present criminal charge, the Arizona Supreme Court stated the following:
“The theory is that evidence, though inadmissible for one purpose, may be admitted if relevant for a different purpose. We are unable to subscribe to this formulation as it applies to the instant situation. We agree with the recognized exceptions to the general rule excluding evidence of former offenses, because that evidence is relevant, other than as proof of the character of the defendant, and because we believe that the need for and desirability of such evidence outweigh any prejudice to the defendant. Relevancy is thus not the sole test of the admissibility of evidence; admissibility depends, rather, on a balancing of the various effects of the admission of such evidence, considered in the light *132of recognized rules of law governing the administration of criminal justice.
“The fact of an acquittal, we feel, when added to the tendency of such evidence to prove the defendant’s bad character and criminal propensities, lowers the scale to the side of inadmissibility of such evidence.”
State v. Little, 87 Ariz. 295, 350 P.2d 756 (1960) (emphasis added).
I, too, would hold such evidence, though perhaps relevant, to be overly prejudicial and thus inadmissible.
In Idaho, the rule is clearly that “[t]he probative value of the evidence linking the defendant to the commission of the crime is to be weighed against the prejudice to the defendant and the inclusion or exclusion of such evidence is a matter for the sound discretion of the trial court.” State v. Sharp, 101 Idaho 498, 501, 616 P.2d 1034, 1037 (1980). In the present case, it is clear that both the introduction of evidence linking the appellant to the murder of Scott Currier, and the inflammatory nature of that evidence, were unnecessary to the prosecution’s case and highly prejudicial to that of the appellant. I would therefore hold that the trial court abused its discretion in admitting such evidence and that appellant is entitled to a new trial free from the prejudice which to any rational mind was created against Paradis by introducing testimony and photographs identical to that which had been used to try Paradis in Washington for the murder of Scott Currier. There was simply no justification for the refusal of the prosecutor and the trial court in not accepting the stipulation into which Paradis’ counsel offered to enter in lieu of the testimony and photographs which the prosecutor thereafter offered and the court admitted — thereby completely destroying Paradis’ right to a fair trial.
II.
A.
I.C. § 19-2827(c)(l) directs this Court, with regard to a death sentence, that we shall determine whether the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor. My best guess is that the drafter of this provision, perhaps really the original drafter from whom it was likely borrowed, forgot for the moment that the 1973 postFurman legislature purported to remove sentencing as a jury function.6 Irrespective of the validity of any conjecture in that regard, the provision is there, and this Court must accept that the clear intendment thereof is that the drafter, and in turn the enacting legislature, were fearful that sentencing judges were not beyond and above being influenced by passion or prejudice in sentencing a convicted first degree murderer. I have always thought otherwise, and in fact this provision points to a flaw in the sentencing which goes hand in hand with non-jury sentencing. If *133a jury imposed a sentence infected with passion or prejudice, who is the best positioned to know that it has happened? Is it five appellate judges some six to twelve months later on reading a cold record? Or is it the trial judge who, immediately and at the time the sentence is imposed, has fresh in his mind all of the evidence, all of the trial proceedings, and has personally observed the jurors and their reactions all through the trial and at oral summation? The answer is so self-evident as to not need the saying. But, under the present scheme the legislature’s judgment is that five appellate judges on a voluminous cold record can deduce whether a sentencing judge has performed his function under the influence of passion, or of prejudice, or of both, or some other undefined “arbitrary factor.” It is to expect too much that all members of a busy Court will painstakingly peruse those records and at the same time competently attend to other matters as well. Trial judges, historically, have been the firsthand arbiters who initially determine whether a jury’s verdict at the guilt phase of a trial has been improperly tainted. Similarly, the jury should be the sentencer, and the trial judge, not this Court, should be the initial overseer.
B.
Today we necessarily labor under the legislative philosophy that trial judges, as sentencers, may be arbitrary, and they may, while under the influence of passion or prejudice, impose sentences of death.
With that mind, although possessed of the highest regard for the sentencing judge in this case, I am brought to the conclusion that he may, as with many of us, have little or no regard for motorcycle gangs. I am brought to the conclusion that such is reflected in his refusing to accept the proffered stipulation, and forcing Paradis into a trial which could not be fair. I am brought to the conclusion that the photographs of the murdered Scott Currier, brought into this case where the charge was the murder of Kimberly Palmer, are so gruesome that the judge in all likelihood was himself affected thereby — even though perhaps not conscious that this was so. In all candor, I admit that had I been a juror in this case, the photographs of Scott Currier’s body would have done far more than prove that he was dead, and that Paradis had a motive for killing Kimberly Palmer or having her killed. Had I been a sentencing judge, I do not believe that I could have ceased being a person at the same time, and would again concede that those photographs might very well have affected my judgment.
For these reasons, contrary to what I have previously stated in footnote 4, and mindful that my obligation as a member of this Court must outweigh any notions of sensitivity, I have concluded to append hereto a random sampling of the photographs. It is true that one picture has the worth of a thousand words. Here, indeed, words cannot adequately portray the inflammatory nature of the many photographs of the murdered Scott Currier.
. Because the majority assumes for purposes of its argument that it is in fact the same sovereign prosecuting in both cases, I too proceed on that assumption. However, I note in passing that the doctrine of dual sovereignty is inapplicable here and would in no way interfere with the application of collateral estoppel principles to the case at bar. As appellant correctly stated in his brief to this Court:
"The dual sovereignty rule is based upon the principle that every citizen of the individual states or territories is also a citizen of the United States and thus owes ‘allegience to two sovereigns, and may be liable to punishment for an infraction of the laws of either.' Bartkus v. Illinois, 359 U.S. 121, 31 [131], 79 S.Ct. 676 [682], 3 L.Ed.2d 684 (1959)."
Appellant’s Reply Brief, p. 4.
. The Arizona Supreme Court was faced with a similar contention by the state in the case of State v. Little, 87 Ariz. 295, 350 P.2d 756 (1960). That case involved the admissibility of a prior narcotics charge for which the defendant was acquitted in a later narcotics prosecution on the rationale that these prior sales evidenced a common scheme or plan which encompassed the instant sale. The State argued that the verdict of acquittal meant only that the State had then failed to prove beyond a reasonable doubt all the elements of the prior offense and that, accordingly, the verdict does not necessarily disprove the fact of the prior sale, which is all that the State sought to prove for purposes of the later case. The Arizona Court responded as follows:
"We do not agree, however, that the effect of the prior acquittal should be determined by a strict application of the rules of res judicata or collateral estoppel. Although a verdict of acquittal may not necessarily mean that the jury found that the prior sale did not in fact take place, such a finding is a possible and indeed reasonable inference to be drawn from the verdict. Further, the relevance of the alleged prior sale as part of a plan or scheme may be doubted in the absence of proof of criminality of that prior sale. Thus, if the acquittal is based on an implied finding that the product sold was not sufficiently proved to be a narcotic or that defendant did not know that it was such, the sale could not reasonably be part of a plan knowingly to sell narcotics unless the jury in the instant action is permitted to find, contrary to the finding of the jury in the first action, that the defendant illegally and knowingly sold what was in fact a narcotic."
State v. Little, 87 Ariz. 295, 305, 350 P.2d 756, 762 (1960) (emphasis added).
I agree with this reasoning and find it to be especially relevant in the present circumstance, where the majority has likewise relied on a “common scheme" rationale to justify admission of the prior charge.
. The only surprising thing about the majority’s pat response is that by stating that it was not the prosecution’s primary purpose to show the appellant’s guilt in the Currier murder, it would seem to imply that such was perhaps a secondary purpose — a rather startling admission.
. I have myself reviewed the • photographs of Currier received into evidence against the appellant while on trial for the murder of Kimberly Ann Palmer. Although I have carefully considered including them as an attachment hereto, I have decided that the purpose served thereby — depicting better than any words the gore and butchery of Scott Currier’s murder — is outweighed by a sensitivity which tells me that such should not be published. They are not photographs of the average murder victim.
.We note, in this respect, that the record clearly shows that the appellant offered to stipulate as to the fact of Currier’s murder. What the defendant objected to throughout the trial, as defense counsel reiterated in oral argument, was the introduction of the “rather gruesome and graphic photographs and pieces of evidence from Dr. Brady,” a forensic pathologist and the State Medical Examiner for Oregon. The prosecution, however, refused on the basis that it had to have introduced all of the evidence.
. “The Idaho Constitution, as first approved on July 3, 1890, an as it reads today, provides in Art. 1, § 7:
'Right to trial by jury. — The right of trial by jury shall remain inviolate____'
That right of trial by jury as it existed at the time our constitution was adopted provided for jury participation in the capital sentencing process.
“At the time of Furman, I.C. § 18-4004 read: ‘Punishment for murder. — Every person guilty of murder in the first degree shall suffer death or be punished by imprisonment in the state prison for life, and the jury may decide which punishment shall be inflicted. Every person guilty of murder in the second degree is punishable by imprisonment in the state prison not less than ten years and the imprisonment may extend to life.’ In its first post -Furman session (1973), the Idaho legislature deleted the jury function from I.C. § 18-4004 and made all convictions of first degree murder subject to the death penalty. This was done in an attempt to remove the 'cruel and unusual punishment’ aspects disapproved in Furman."
"After the United States Supreme Court in a series of cases declared statutes of other states which were similar to Idaho's 1973 version unconstitutional, the Idaho legislature responded in 1977 with the present statutory scheme providing for inquiry into mitigating or aggravating circumstances as set forth in I.C. § 19-2515 et seq. That amendment changed the statute back to its pre-1973 language except that it omitted restoring the jury function____”
State v. Creech, 105 Idaho 463, 477, 670 P.2d 463, 477 (1983)(Huntley, J., dissenting).