dissenting.
I write to express my disappointment with the majority who today sanctions the inadequate handling of the record by a trial judge. Instead of criticizing the trial court for not ruling on the record on a critical motion to suppress, four members of this Court go to great lengths to show that the defendant somehow waived his Fifth Amendment right not to be convicted on the basis of potentially coerced confessions.
First, a word about our relationship with the state’s Court of Appeals is in order. This appeal was first heard by that court, State v. Kirkwood, 110 Idaho 97, 714 P.2d 66 (Ct.App.1986). This case was assigned to the Court of Appeals.
It makes little sense, in terms of judicial economy, to delegate criminal cases to the Court of Appeals and then routinely overturn their decisions. See, e.g., State v. Langley, 110 Idaho 895, 719 P.2d 1155 (1986); State v. Lewis, 107 Idaho 616, 691 P.2d 1231 (1984); State v. Wilson, 107 Idaho 506, 690 P.2d 1338 (1984). This is particularly so in this case, where the Court of Appeals was unanimous in its sober, judicial decision of remanding the case for factual findings on the record as required by then I.C.R. 12(d) under the circumstances of this case.
There is no question that Kirkwood asked for, and received, a pretrial hearing on the admissibility of two tape recorded confessions. The transcript of that hearing occupies an entire volume of the thirteen-volume record on appeal. The hearing occurred more than two weeks prior to trial. No waiver, therefore, of Kirkwood’s objection to the admissibility of these confessions can be predicated upon I.C.R. 12(e) as the majority opinion implies with its underscoring added to the rule. The rule obviously applies to pretrial objections, not to failures to object in the course of trial.
To my mind, Kirkwood’s request for, and Judge Newhouse’s granting of, the pretrial hearing also should satisfy the language of I.C.R. 12(d) that is here at issue: “When factual issues are involved in the determination of a motion, the court, upon the request of any party, shall make its findings thereon.” The decision to admit evidence of a disputed confession presents a question of law and of fact. The ultimate admissibility of the confession is a question of law for the court. However, the voluntariness of the confession, which determines its admissibility, is a question of fact for the judge sitting as a fact-finder.
This Court could easily have construed the rule to mean that implicit in a request for a factual hearing is also a request for a determination of the matter before the court. That determination will ordinarily be by a decision which generally will be referred to as a memorandum decision or memorandum decision and order. Implicit in any such decision on the motion is that the court necessarily has to make and include its findings of fact where there is a factual conflict. A court cannot reach and make a decision without resolving a factual conflict. Why the makers of the rules fail to recognize the obvious is beyond my powers of comprehension. The bit in the rules relative to requesting findings is just so much surplusage in a much overburdened and oft-amended rule — unless the intent of the provision is to specifically require written findings other than bench remarks in lieu thereof. Beginning well over a hundred years ago, practitioners in Idaho well understood that the very word “decision” importuned the obligation to make findings of fact and conclusions of law. 1881 Code of Civil Procedure, § 390, former I.C. 10-302, I.R.C.P. 52(a). The defendant made a proper motion as required by Rule 12(d). *629Only had he not done so would the waiver provisions of 12(d) come into play. There is nothing in the rule — nor should there be — which requires either a prosecutor or a defense attorney to insist of a judge that the latter do what he is obliged to do, i.e., render a decision on the motion presented. Any attorney of even limited trial experience quickly learns therefrom or by teachings of older practitioners that it is not wise to bait a judge with an inquiry concerning a long overdue decision. The practitioner who does so will usually get an immediate ruling, and it will ordinarily be against his client. Here it is beyond cavil that Kirkwood not only requested a pretrial suppression hearing, but was accorded one — making the circumstance entirely dissimilar to the Washington, Minnesota, Arizona, and Kansas cases irrelevantly cited in the majority opinion.
Why else hold a suppression hearing that consumed an entire judicial day in which evidence was introduced and conflicting testimony was heard by the court? Of course, the primary concern of Kirkwood’s counsel must have been the exclusion of the taped confessions. However, in the event the court denied his motion, he would no doubt have wanted a clear record preserved for the appellate review that is now impossible since the trial judge made no factual findings. This problem was well appreciated by the Court of Appeals in its Kirkwood opinion when Chief Judge Walters wrote:
As an appellate court, we cannot resolve the ultimate question of voluntariness unless we know the basic facts — who did what, and who said what to whom. On these basic facts, where evidence in conflicting, we need findings by the trial judge. Kirkwood, supra, 110 Idaho at 99, 714 P.2d at 68.
Here the testimony of the police sharply conflicted with that of Kirkwood. Yet we are locked into the type of result-oriented appellate review that this Court so recently criticized:
“Appellate review of judicial discretion should not be result-oriented. An appellate court should not focus primarily upon the outcome of a discretionary decision below, but upon the process by which the trial judge reached his decision. In order for the appellate court to perform this function properly, it must be informed of the reasons for the trial court’s decision. Unless those reasons are obvious from the record itself, they must be stated by the trial judge. Where the reasons are neither obvious nor stated, the appellate court is left to speculate about the trial court’s perception of the law and knowledge of the facts. As a practical matter, the appellate court finds itself locked into a result-oriented review.” Soria v. Sierra Pacific Airlines, 111 Idaho 594, 609, 726 P.2d 706, 721 (1986) (quoting Sheets v. Agro-West, Inc., 104 Idaho 880, 888-89, 664 P.2d 787, 795-96 (Ct.App.1983).
The majority finds strong proof of a voluntary confession in the fact that Kirk-wood signed a statement waiving his Miranda rights. Such a statement does provide a convenient peg on which a court may hang its hat. However, no judge in the comfort and security of his or her chambers should doubt that it is possible to sign a piece of paper and still feel threatened into a confession. A loaded gun pointed at one’s head by a young and nervous police officer, as Kirkwood testified, can convince anyone to be very cooperative when questioned.
Next, in an unworthy feat of mislabeling, the majority states that since Kirkwood’s objection is based on I.C.R. 12, the “fundamental error” doctrine is not invoked because that doctrine relates to infringements upon constitutional rights, not rule violations. This statement ignores the fact that it is Kirkwood’s Fifth Amendment right not to be forced to confess that stands behind the rule in this case. In addition, his Fourteenth Amendment right to due process is implicated since the con*630fession was admitted with no ruling on its voluntariness.
Finally, the majority contends that even fundamental rights may be waived by counsel’s failure to object at trial to the introduction of evidence citing a raft of out-of-state authority. However, conspicuously absent from the opinion is perfectly good Idaho authority to the contrary. See State v. LePage, 102 Idaho 387, 630 P.2d 674 (1981); State v. Cariaga, 95 Idaho 900, 523 P.2d 32 (1974); and State v. Haggard, 94 Idaho 249, 486 P.2d 260 (1971). LePage dealt with, in significant part, the voluntariness of inculpatory statements made by the defendant to a police jailhouse informant. The Court held that the admission of such evidence affected the fairness of the trial and, therefore, the Court had inherent power to review the error despite the lack of an objection below.
The issue is fully preserved on appeal by the transcript of the day-long suppression hearing. Kirkwood’s counsel may have thought an objection at trial was superfluous in light of the hearing. This Court could easily have construed then I.C.R. 12(d) to mean that a request for a factual hearing is a request for factual findings. It should do so and thus achieve substantial justice which the Court of Appeals properly attended to. 110 Idaho 97, 714 P.2d 66. Not over-extensive judicial resources have been inopportunely expended by interfering with the decision of that court which handles the brunt of the major portion of criminal appeals.