specially concurring.
I write separately to emphasize the conflict between the needs of the State to offer evidence of the incident in Arizona and the needs of the Defendant (and the trial judge) to confine the testimony and evidence to the crimes for which the Defendant was charged in Idaho. The State improperly expanded the testimony of the witnesses to the Arizona murder, and unjustly emphasized and dramatized the Arizona murder for the jury during closing argument. The Defendant was on trial for crimes committed in Idaho, not Arizona.
As the majority opinion emphasizes, the State believed it was important for the prosecution to have the Arizona witnesses testify at the Idaho trial. Unlike the Arizona murder, the Idaho murder was not observed by any living bystander, so the Defendant’s guilt had to be proved by circumstantial evidence. The Arizona witnesses could supply the link between the Defendant and the gun used in the Idaho crime. That link could have been established just by asking the Arizona witnesses two questions: Did you observe the Defendant with a gun in his hand; and if so did you see him shoot it? With the answers to these two questions, the State could then proffer evidence to the jury of the similarities in the bullet slugs found at the Arizona and Idaho crime scenes to buttress the proposition that the Defendant was the perpetrator of the Idaho murder.
The answers to these two questions were all that the State could properly elicit from the witnesses, without raising concern that the jury would become biased against the Defendant by hearing evidence proving his guilt, for a crime the commission of which was not charged against him in the information (i.e., the Arizona murder). Instead, it seems that the State went out of its way to foster prejudice against the defendant— as the excerpt in the majority opinion from the State’s closing argument makes painfully clear. In minute and dramatic detail, the State re-enacted the Arizona murder *900for the benefit of a live jury. The prosecution’s closing argument in this case reminds one of the prosecution’s conduct in State v. Griffiths, 101 Idaho 163, 610 P.2d 522 (1980). But unlike the prosecutor in Griffiths, who presented “to the jury a vivid portrayal of the homicide, based on invented ‘facts’ nowhere supported by the evidence,” 1 the prosecutor in Smith had the far superior advantage of relying on the expansive testimony of the Arizona witnesses to the Arizona crime, testifying “live” in an Idaho courtroom. And, unlike Griffiths, Smith was convicted of a crime for which there was tangible incriminating evidence. These distinguishing features, however, do not excuse the unnecessary overkill in State v. Smith, all of which was well illustrated to us by the defendant’s attorney.
Prosecuting attorneys, as officers of the Court, know better. As the late Justice Shepard has stated, while prosecutors may strike hard blows, they are not at liberty to strike foul blows. Although the trial judge performed his function well in charging the jury to forget what the State had just told it, in graphic detail, about the Arizona crime, practitioners and judges alike know that this is often not enough. Although the State appears to have overstepped its bounds, the trial judge may have assuaged what was otherwise an intolerable episode. A final reminder is the following passage from a United States Supreme Court opinion, in which that Court reviewed a conviction unsupported by the charges included in the information filed against the Defendants:
No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal____ It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made.
Cole v. State of Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948) (citations omitted). Officers of the Court should be prepared, and are indeed obligated, to heed the words of Cole and our state and federal constitutions.
. Griffiths, 101 Idaho at 169, 610 P.2d at 528 (Bistline, J., dissenting).