specially concurring and dissenting. [The concurrence, Part I, was with the dissenting parts of the opinion authored by JOHNSON, J.]
PART II.
“The evidence demonstrates beyond a reasonable doubt that this defendant attempted to drown a woman as a means of torture and that this defendant inflicted brutal beatings upon his second wife and raped her while she was in the hospital recovering from an automobile accident.”
Judge Andrew Schwam, Findings of the Court in Imposing the Death Penalty.
The amended information upon which Stuart was put on trial did not allege any such criminal conduct on the part of the defendant. The charging part of the information was this:
That Gene Francis Stuart of Orofino, Idaho, on or about the 19th day of September 1981, at Orofino, in the County of Clearwater, State of Idaho, then and there being, did then and there unlawfully and feloniously kill a human being, with the intentional application of torture to said human being, to wit: that the said Gene Francis Stuart did strike and hit Robert Miller, a human being, repeatedly with the intent to cause suffering or to satisfy some sadistic inclination of the said Gene Francis Stuart, thereby inflicting great bodily injury upon Robert Miller and mortally wounding Robert Miller, from which wounds the said Robert Miller, a three year old boy, sickened and died in the County of Clear-water, State of Idaho, on the 19th day of September 1981.
State v. Stuart, supra, [110 Idaho] at 185, [715 P.2d] (emphasis added). Judge Schwam’s finding of defendant’s guilt on the two totally unrelated charges of attempted drowning of one woman, and the rape of another clearly was the strong factor which supported his imposition of a death sentence. Equally clear, the defendant in Judge Schwam’s courtroom in the presence of the jury was being tried on not just the filed charge of murdering the child, but also on the non-filed charges of aggravated assaults committed against the two women — one of whom had been his wife. Not only was the defendant not formally charged anywhere by information with those two acts of criminal assault, but he could not have been charged in Idaho. The adduced evidence shows that such purported acts, although found by the judge alone to have been “proved beyond a reasonable doubt,” took place entirely in the state of Washington, and in the western part thereof, and over ten years in the then distant past.
*891Judge Sehwam recited in his Findings that the evidence upon which he relied in so pronouncing defendant guilty of the two assaults beyond a reasonable doubt was first found by him in a transcript of the preliminary hearing, which the Judge had read prior to presiding at trial.
Defendant’s Petition for Post-Conviction Relief, Part D, accurately assesses that:
It is evident from the Court’s findings that testimony presented at the Preliminary Hearing was accepted as factual in its entirety, despite the fact that Petitioner had not then even commenced discovery proceedings, nor was he later able to cross examine these witnesses concerning these allegations.
Petition for Post Conviction Relief, p. 6. In said Part D, the defendant particularly challenged a Judge Sehwam finding, No. 3,
It was agreed and understood by both the state and the defendant that the Court would rely upon, as part of the sentencing hearing, the testimony at the preliminary hearing and the trial.
Following Judge Schwam’s retirement from the bench, Judge Schilling presided in the post-conviction proceedings. In entering a summary judgment denying defendant any hearing or any relief, Judge Schilling in his written decision turned first to this Court’s opinion on defendant’s first appeal, and stated: “On direct appeal, the Idaho Supreme Court noted that USE OF THIS TESTIMONY WAS STIPULATED TO, AND WAS PROPERLY BEFORE THE COURT.” Judge Schilling’s reading ability was not at fault in making that statement. Unfortunately, as it is now discovered, Justice Bakes in authoring the Court’s opinion was misled by Judge Sehwam, and in turn misled the other four of us as to the actual content of the written record.1 Justice Bakes wrote:
IT WAS STIPULATED AT THE SENTENCING HEARING THAT WHEN SENTENCING THE DEFENDANT THE COURT WOULD CONSIDER EVIDENCE PRESENTED AT THE PRELIMINARY HEARING AND TRIAL ALONG WITH THE PRESENTENCE INVESTIGATION REPORT.
Supreme Court on Direct Appeal, per Bakes, J., 110 Idaho at 176, 715 P.2d at 846.
A time-consuming search through Volume 5 of the appeal record appears to have produced the “stipulation” which Judge Sehwam declared had been entered into. Justice Bakes in turn appears to have utilized Judge Schwam’s finding in his opinion.2 After the State had put on one witness, the jailer, who testified that he had observed no' remorse on defendant’s part, Judge Sehwam ruled that he would discount completely and did so by striking all of the jailer’s testimony. The State presented no more witnesses. The following then took place:
THE COURT: Does the defense have any witnesses?
MR. KINNEY: Your Honor, in light of the fact that the State has presented no witnesses in aggravation in addition to, of course, the trial testimony, we tend to also rely on the trial and argument.
THE COURT: Okay. I gather it’s the STATE’S POSITION that it has a right to and intends to rely upon all the cross-examination testimony illicited either at the Preliminary Hearing or the trial; is that correct?
MR. CALHOUN: Yes, sir, that is correct.
THE COURT: Okay.
MR. KINNEY: Just a moment, please?
THE COURT: Yes.
MR. CALHOUN: I believe I’ve so stated in the paperwork that I filed.
*892The prosecutor’s statement that the State would rely upon preliminary testimony was just that, the State’s position. For certain it was not the stipulation which this Court’s opinion elevated it to on the direct appeal— apparently on the sole basis of Judge Schwam’s finding of such a stipulation, and without anyone on this Court making an independent examination of the record in order to ascertain the validity of Judge Schwam’s finding.
Nor is there anything in State v. Osborn, 104 Idaho 809, 663 P.2d 1111 (1983), which gives the sentencing authority any carte blanche authority to resort to preliminary hearing transcripts as acceptable evidence at a hearing on the question of imposing a sentence of life or death. Osborn does not do that. There is a considerable amount of wishy-washy meanderings in the Court’s opinion, pp. 410 through 412 [of 102 Idaho, pp. 192 through 194 of 631 P.2d], but in essence it distills to the proposition of law which West Publishing found therefrom and set out in Headnote 2:
Use of the preliminary hearing transcript by State at sentencing aggravation-mitigation hearing instead of live testimony was not error where defendant had pled guilty prior to trial, [and] at no time did either State or defendant object to proceeding in such manner, ... AND DEFENDANT ALSO RELIED UPON INFORMATION CONTAINED IN RECORD [SIC, TRANSCRIPT] OF THE PRELIMINARY HEARING. ...3
Although the author of the Court’s opinion in Osborn honored me by utilizing a goodly share of that which I had previously written in the same case, undoubtedly more important than what was borrowed is that which I had written and which was not recycled. The Osborn author and myself in my Osborn opinion, on this one narrow point, made these like statements. “We hold today that those cases in which the death penalty may be imposed do not represent ‘ordinary circumstances.’ ” 102 Idaho at 424, 631 P.2d at 206 (per Bistline, J.) “We recognize that cases where the death penalty may be imposed are not ‘ordinary circumstances.’ ” 102 Idaho at 412, 631 P.2d at 638 (per McFadden, J.)4 But, there we parted. Unlike the author of the Court’s Osborn opinion, my view then, and fortified as more and more death penalty cases came under review, was that the Court should insist on adherence to the procedure set out by the legislature, without judicial improvising.
Following the statement that death penalty cases do not present ordinary circumstances, that statement in my opinion was expanded:
The gravity and infrequency of a sentence of death are such that it is necessary that all procedural formalities be *893followed with the utmost care. Such a proposition need not be belabored.
Our conclusion is buttressed by our decisions with regard to the use of preliminary hearing testimony at trial. In that regard, we have noted that the only function of a preliminary hearing is to determine whether a crime has been committed and whether there is probable cause to believe that the crime was committed by the accused. State v. Ruddell, 97 Idaho 436, 546 P.2d 391 (1976); State v. Haggard, 94 Idaho 249, 486 P.2d 260 (1971). At a preliminary hearing neither the prosecutor not the defense counsel has any incentive to go to great lengths in presenting his case, or in cross-examining the other side’s witnesses. The preliminary hearing is usually held at an early stage in the proceedings so that the defense counsel has had little time to prepare, or having prepared, sees no reason to display, his hand — or, in some situations may well realize that the examining magistrate is not inclined to hear any testimony which merely raises questions of fact. A magistrate does not pass upon guilt, and there seems to be some view in the state that issues of fact ought not be passed upon either. In fact, in Freeman v. State, 87 Idaho 170, 392 P.2d 542 (1964), the Court put the matter wholly at rest:
‘ “A preliminary examination before a committing magistrate is in no sense a trial. The purpose is to obtain the judgment of a magistrate to the effect that a crime has or has not been committed, and if committed that there is reasonable ground to believe that the person accused is guilty of committing the crime. It is not to be expected, nor is it required, that the same formality and precision must be in a preliminary examination as is required at trial.” State v. Bilboa, 33 Idaho 128, 190 P. 248.’ 87 Idaho at 177, 392 P.2d at 546 (emphasis added).
Later in the opinion the Court quoted the Supreme Court of Minnesota for an almost identical statement as to a preliminary hearing being in no sense a trial, also describing it as being merely a process whereunder the state may determine if it wants to proceed further against the accused. 87 Idaho at 179, 392 P.2d at 547.
The same reasoning applies to the case at bar. Before a sentence of death can be imposed, I.C. § 19-2515(f) requires that at least one aggravating circumstance must be proven beyond a reasonable doubt. A PRELIMINARY HEARING IS SIMPLY NOT DESIGNED NOR INTENDED TO PRODUCE EVIDENCE ESTABLISHING FACTS BEYOND A REASONABLE DOUBT; A DEFENDANT WHO PLEADS GUILTY, AND HENCE HAS NO TRIAL, IS ENTITLED TO A PROCEDURE AS SEARCHING AND RELIABLE AS A TRIAL BEFORE IT IS DETERMINED THAT HE SHOULD BE PUT TO DEATH.
State v. Osborn, 102 Idaho 405, 424-425, 631 P.2d 187, 205-206 (emphasis added).
It has been abundantly shown that Judge Schilling, although himself not in error in relying upon the misstatement of the Court’s Stuart I opinion on direct appeal, was led into error thereby, and but for his blameless but faulty reliance on Stuart I there was no sound basis for a summary judgment which turned away a death penalty defendant without any hearing. It is rather apparent that Judge Schilling did not have brought to his attention the so-called “stipulation” as it actually took place. Hence, Judge Schilling noted that “petitioner did intend to rely on trial testimony and argument.” In that regard Judge Schilling was entirely correct, because that is what defense counsel said, and which counsel has never denied. The statutory scheme for a sentencing hearing does provide that trial testimony may be utilized. There is no problem whatever in that regard.
But, and a big but it is, Judge Schilling utilized Justice Bakes’ conclusion that defense counsel had stipulated — which was not so, and Judge Schilling added a bit of gloss that was not justified: “However, it is clear that petitioner did intend to rely on *?trial testimony and argument, and was not demanding strict compliance with the live testimony formality of I.C. § 19-2516.” The final phrase, emphasized above, has no support whatever, and at best amounts to no more than sheer surmise. Yet, it is crucial. Judge Schilling was looking at § 19-2516 when he should have been looking at the same statute both counsel, for the state and for defendant, were looking at, I.C. § 19-2515. Said statute specifically states that: “EVIDENCE ADMITTED AT TRIAL SHALL BE CONSIDERED AND NEED NOT BE REPEATED AT THE SENTENCING HEARING.”
Judge Schilling on the following page of his opinion mentioned only one sentence of I.C. § 19-2515(d), which was incorporated into the final sentence of his addressing the issue of the use of a transcript of preliminary hearing testimony: “More importantly, the Court in Osborn concluded that the use of relevant preliminary hearing testimony was proper and desirable in sentencing, especially where the sentencing court is mandated to consider all relevant evidence under I.C. § 19-2515(d). Osborn, 102 Idaho at 410-413 [631 P.2d 187].”
In the Osborn case, McFadden, J. with only Bakes, J. and Donaldson, J. concurring,5 also took an extremely wide latitude of literary license in converting this sentence of I.C. § 19-2515(e):
At such hearing, the state and the defendant shall be entitled to present all relevant evidence in aggravation and mitigation,
into a transformation of his own desire:
The section speaks of the entitlement of the parties to present whatever evidence they desire at the aggravation-mitigation hearing.
From which vantage point, of transmuting the statute’s “relevant” into the Justice’s "whatever,” he saw I.C. § 19-2515(c) as creating an “entitlement of the parties" but only after first stating:
... the precise question raised ... is whether the live testimony mandate of I.C. § 19-2516 displaces the discretion granted to the state on how to proceed at the hearing, i.e., whether the statute absolutely requires live testimony in open court at the aggravation-mitigation hearing.
Having considerably rewritten the plain language of the statute to his own liking, he delivered his punch line: “We decide that it does not.” Osborn, all quotations found at 102 Idaho at 411, 631 P.2d at 193. The statute allocates to the State no such discretion. Nor to the sentencing court.
Unfortunately, the district judges feel bound to apply this Court’s holdings no matter how unsubstantiated, and no matter how result-oriented, and no matter whether this Court has indulged in rewriting the statutory law or the Constitution itself. What Justice McFadden wrote in Osborn was used to Stuart’s disadvantage by Judge Schilling, and unless curbed by this Court of its own volition will continue to be a source of prejudicial error in the district courts
Here, greatly to the defendant’s prejudice in his attempt to gain relief by post-conviction proceedings, Judge Schilling obediently applied the McFadden, J. tamperings with the statutory process: “More importantly, the Court in Osborn concluded that the use of relevant preliminary hearing testimony was proper and desirable in sentencing, especially where the sentencing court is mandated to consider all relevant evidence under I.C. section 19-2515(d). Osborn, 102 Idaho at 410-413 [631 P.2d 187].” McFadden, J. extended himself to the ultimate in Osborn with this statement:
While, admittedly, the section speaks of evidence from the prior trial, in light of the purpose of the statute, we see no need to read into the statute a requirement that other previously considered, relevant information from the preliminary hearing is to be excluded unless presented once again by live testimony.
*895Osborn, supra, at 412 [631 P.2d 187], The “other previously considered, relevant information from the preliminary hearing,” raises the questions, “Considered by whom, and for what purpose? ” The answers should hardly need be supplied. ’Tis not the district judge who considers the preliminary evidence, but rather ’tis the magistrate who does so. The purpose is, as was well pointed out in my Osborn dissent, to determine whether a crime has been committed, and if there is probable cause for determining that the accused appears to have been the perpetrator.6
This Court’s Osborn opinion gave Judge Schilling precious little opportunity to hold other than he did, even though obviously in violation of a clearly written statute.
There was not any justification from any source for Judge Schwam to have considered the preliminary hearing transcript as admissible evidence at the sentencing hearing in this case. Add to the last quotation above set forth that which McFadden, J. went on to say on the very point:
This is certainly true where the appellant (defendant) relied upon the information contained in the record of the preliminary hearing, as occurred here.
102 Idaho at 412, 631 P.2d at 194. Bakes, J. cannot point to where at the sentencing hearing in this Stuart case, reliance was placed by the defendant on the preliminary hearing transcript. The fact is quite the contrary. Nonetheless, the Bakes, J. opinion on the direct-appeal/mandatory-review, as has been herein above documented, indulged in the misstatement that there was a stipulation to the use of that transcript as relevant evidence.
If there were forthcoming a display of a reasonable amount of intellectual integrity, this opinion could be discontinued at this point, and the majority would now reverse Judge Schilling. But such reversal would not be for his own error, but because those in the majority would candidly assume the responsibility for misguiding Judge Schilling.
With that thought expressed, we proceed to the decision in post-conviction proceedings.
PART III.
Because it is a highly important, integral element of Judge Schwam’s sentencing, a second look at Part IIA of the Court’s opinion on the mandatory-review/direct-appeal is merited. Part IIA dealt with the admissibility of the testimony of the two women who testified to the assaults suffered by each — but for which no charge was ever made. Before delving into the admissibility issue, the author of the Court’s opinion first set the stage by explaining the prosecution’s problem: “To obtain a first degree murder by torture conviction, the state is required to prove that the defendant had an intent to cause pain and suffering.” The prosecution’s so-called problem was, however, of the prosecution’s own making. In the last previous child-abuse death case which came before us, the prosecution experienced no trouble in satisfying the jury that the 8-month old child “died from blows to the head, a minimum of two and probably three blows____ Testimony indicated that the injuries could not have been inflicted accidentally or by the activities of (the child) herself.” State v. Aragon, 107 Idaho 358, 361, 690 P.2d 293, 296 (1984).
The charge in that case was first degree murder, in the usual form. An instruction gave the jury the definition of the homicide which the defendant there was convicted of: “Murder in the first degree is defined in this case as all murder which is perpetrated by any kind of willful, deliberate and premeditated killing.” 107 Idaho at 362, 690 P.2d at 297. That was the only charge of first degree murder. As I explained in Stuart I, the prosecution made a poor choice in not also charging Stuart with a count for deliberate, willful, and premedi*896tated killing. As previously alluded to, and having on this review of Stuart’s final effort at obtaining a fair trial in the Idaho judicial system, and by reason of those many reviews of the transcripts of the proceedings having obtained my own sense that the prosecutor in this ease was capable as well as conscientious, I am more and more inexorably drawn to the conclusion that the poor choice of charging torture murder, and only that, was made by the some other person higher in officialdom.
The author of the Court’s Stuart I opinion, after noting that the charge was torture murder then rationalized that the anticipated defense to that charge would be to show the jury that the homicide resulted from an over-abundance of discipline. Because of such anticipated defense, the Court’s opinion then spoke to: “The state’s only chance to refute that defense, other than by showing the severity of the treatment of the victim, would be to introduce other evidence which might tend to show that appellant’s treatment of this victim was for purposes other than discipline.” Stuart, supra, 110 Idaho at 170, 715 P.2d at 840 (emphasis added).
The Court’s opinion, having not yet held such extraneous evidence admissible, detailed its value:
In this case, the state presented an abundance of evidence concerning appellant’s abuse of other women and their minor children with whom he had lived over a period of ten years. Appellant’s treatment of these other persons was substantially similar to appellant’s treatment of the victim. Thus, this evidence was relevant to show that appellant had an intent other than that of discipline in his treatment of the victim because he treated other persons close to him in a similar manner. It was also relevant to show appellant’s sadistic nature, thus supporting the state’s theory that appellant’s treatment of the victim was torture, inflicted to satisfy the sadistic inclinations of appellant.
Stuart, supra, 110 Idaho at 170 [715 P.2d 833]. With the stage thus well set as to the nature and purpose of the extraneous evidence, the Court’s opinion moved on to the real issue — admissibility under Idaho precedential case law. First was candidly CONCEDED THE GENERAL INADMISSIBILITY of such evidence, but then was noted the exception where offered to prove motive, for which two cases cited were State v. Needs, 99 Idaho 883, 591 P.2d 130 (1979), and State v. Wrenn, 99 Idaho 506, 584 P.2d 1231 (1978). Sally Needs was convicted of first degree murder for killing her husband — an unwitnessed homicide. Approximately two weeks before his death, according to the testimony of an eye-witness, she had assaulted the then live husband with a butcher knife. I joined an unanimous opinion which upheld the admissibility of that testimony. Our opinion stated, “Specifically, in homicide and assault cases involving spouses, Idaho courts have allowed testimony as to a defendant’s prior assaults on the deceased spouse to illustrate the mental attitude of the accused toward the deceased spouse and to prove motive.” 99 Idaho at 893, 591 P.2d at 140.
State v. Wrenn was not a homicide case, leaving me to wonder why it was cited along with Needs. Perhaps, it is because a “string” of two cases is more impressive than a single citation. The two defendants in Wrenn were charged and convicted of robbing an itinerant previously unknown to them. The itinerant complained to authorities that the two defendants robbed him at gun point. The three had been seen together by other witnesses. The defendants at trial admitted being with the itinerant, but denied the robbery. The two defendants had been apprehended in Billings, Montana; the crime was alleged to have taken place in Pocatello, Idaho.
I joined a majority opinion (there was no dissent), which reversed and remanded because the trial judge, based on an officer’s testimony that the automobile which the two defendants drove was a stolen vehicle, gave the jury an instruction that the defendant’s flight could be considered indicative of guilt. So much for Wrenn and Needs.
*897The third precedential case in the Court’s Stuart I opinion relied upon for upholding the admission of the wholly extraneous, unrelated, and ancient history testimony of the two purportedly assaulted women from western Washington was State v. Sanchez, 94 Idaho 125, 483 P.2d 173 (1971). It was first preceded by these introductory remarks:
In this case, appellant also argues that the prejudicial effect of this evidence outweighs its relevancy, and thus it should have been excluded. In cases where evidence is claimed to be highly prejudicial, a balancing test is conducted where the probative value of the evidence is balanced against the prejudice to the defendant. Here, as we have already discussed, the evidence was relevant to show the intent of appellant in his treatment of the victim. See State v. Sanchez, 94 Idaho 125, 483 P.2d 173 (1971) {in child beating case, evidence of bad acts of defendant, in form of beating of other children, relevant to show defendant’s attitude toward children). The evidence tended to support the existence of the intent to cause pain and suffering. The inclusion or exclusion of this type of evidence is a matter for the exercise of the sound discretion of the trial court.
Regretfully, I must submit that the author of Stuart I should have been better acquainted with Sanchez. It was not wholly extraneous evidence of the treatment of other wholly not-at-all connected children. This is readily discernible by reading very briefly in the Sanchez opinion, which produces the fact that Sanchez and his wife at the time of the charged homicide had a household which included four children, and the youngest who was 18-months old, was the victim of the homicide. At the trial testimony was given by a number of witnesses who testified as to prior acts of discipline by the defendant against not only the young victim, but the other children in the household. The opinion of the Court conceded that such was not evidence of criminal conduct, but nevertheless admissible:
These cases are not directly in point on the issue here, as they all dealt with facts that reflected the commission by the defendant of other crimes. In this case involving the death of an eighteen month old boy, there was evidence that the defendant at various times had disciplined the decedent as well as the other children. There was evidence that the discipline had been imposed by the defendant slapping the children with his hand on occasion, and on other occasions by the use of a belt. There was also evidence that this discipline had been imposed not only with the consent of the children’s mother, but that she had expected him to discipline the children in order that they gain respect for their step-father. This evidence interjected another issue into this case, i.e. whether the corporal discipline employed was excessive. The trial court was aware of the problem of whether the probative value of it outweighed the prejudicial effect on defendant’s position. In this type of case involving abuse of a small child, the facts are not easily unraveled, and the state is faced with a most difficult problem of attempting to prove exactly what did take place. It is the conclusion of this court that in such a situation the trial court properly admitted this evidence in order to give to the jury the full picture of the situation in the home where the tragedy occurred. It is recognized that this testimony might have tended to inflame the minds of the jurors, especially where children of the tender age of those involved here are concerned, yet this testimony was of probative value to bring out the attitude of the defendant towards his step-children, and towards the deceased child.
Sanchez, 94 Idaho 125, 128, 483 P.2d 173, 176 (1971). There was strong circumstantial evidence that the defendant had placed the infant in an electric clothes dryer, as shown by blood stains on the admitted in evidence dryer door. It is much doubted that any one would challenge the Sanchez holding affirming the conviction of involuntary manslaughter. It is much more doubtful that mature minds legally educat*898ed would use the Sanchez case as authority for upholding the validity of the testimony of the two women allegedly assaulted by Stuart. The two cases are poles apart.
Yet the opinion for the Court states: “In this case the evidence presented of appellant’s prior relationships [the two women in Washington ten years earlier] was introduced for the specific purpose of showing sadistic intent and frame of mind of appellant at the time of the commission of the acts directed toward the victim [Robert “Bobby” Miller]. 110 Idaho at 170 [715 P.2d 833]. That rationale is as logical as the proposition that opposite angles are unequal, and neither common sense logic nor the three discussed Idaho cases sustain the Court’s opinion in Stuart I, as the above passage goes on to say, “Thus the evidence was admissible under our rule.” If admissible, the rule is one of a necessity made therein in order to assure that in Idaho no conviction of capital murder will be overturned, although on rare occasion this Court will find reasons for interfering with the imposition of the death penalty, or for perceived error put the district judge to a resentencing. See State v. Osborn, supra; State v. Windsor, 110 Idaho 410, 716 P.2d 1182 (1986); and State v. Scroggins, 110 Idaho 380, 716 P.2d 1152 (1986).
PART IV.
Defense counsel at oral argument gave a cogent synopsis of the many obstacles placed in his path in attempting to prepare for the trial judge’s anticipated, but never declared, determination to allow the two women from western Washington to testify. True, this was considered on the direct appeal, at is only one small component in the overall picture, and of a necessity permeates throughout all of the proceedings since Stuart was charged by a complaint and bound over to stand trial after the preliminary hearing. That synopsis is convincing to any member of the trial bar that defense counsel was not able to obtain any semblance of a fair trial. My separate opinion in Stuart I reported how, on a motion for change of venue because of undue publicity Judge Schwam procrastinated in making any ruling, and then, when he did venue was not changed to some place out of the Second District, but to Moscow, Idaho, which is not only in the same judicial district, but is an environment closer to the source of the notorious publicity than Orofino, where the homicide occurred, but also happened to be the place of Judge Schwam’s residence. Moreover, it required defense counsel, a sole practitioner residing in Orofino, to find temporary quarters in Moscow, which would in an ordinary criminal trial be a substantial handicap. In a murder defense, it would be more so, and in Idaho’s first torture murder case — obviously a spectacular production — it would be a well-nigh impossible situation. Add to all of that the bizarre circumstance that defense counsel would eventually find himself defending against the two long-ago assault charges to which the two women from western Washington would testify on behalf of the prosecution. Defense counsel, even had he been ably staffed with an assistant, with an investigator, and with the funds which are necessary to engage in combat with the prosecution, might as well have thrown in the towel. However, he was made of sterner stuff.
Although a great deal of the pathos is lost in the transition from the spoken word to the printed page, even just the printed word will spell out a message to members of the bar who opt to undertake such a mission as that here undertaken.
The following is defense counsel’s statement of the frustrations visited upon him in his attempt to provide his client with a defense and a fair trial:
MR. KINNEY: To address the issue, the primary issue we are presenting on appeal at this juncture, it is necessary to go through a bit of the facts surrounding Mr. Stuart’s conviction and ultimate sentence. As the Court is aware from the record, Mr. Stuart was convicted of, was the first person convicted in this state of the crime of murder by torture. Mr.' Stuart was ultimately sentenced to death after his conviction, and several matters of significance arose in trial preparation and during trial which I feel are espe*899dally relevant here and which were not matters raised on direct appeal earlier. As reflected by the record, Mr. Stuart was represented by myself at all stages of the proceedings since his initial arrest through and including the present date. Mr. Stuart was charged, excuse me, has been charged with the crime of murder by torture. The state’s counsel at the preliminary hearing conceded that it could not prove that offense without the use of testimony of girl friends and wives of defendant, alleging events up to one decade prior to the event. We have previously litigated the issue of whether or not that testimony should have been admitted at trial and will not argue it at this point. The central issue we are now presenting to the Court is whether the district court erred in refusing to allow an evidentiary hearing on the post conviction relief proceeding filed by Mr. Stuart by myself.
In Mr. Stuart’s petition for post conviction relief, his initial petition was supplemented by the affidavit of one David Simmons. Mr. Simmons was a psychiatric technician at State Hospital North in Orofino in the year 1981. Mr. Simmons stated in his affidavit that in early September or late August of 1981, he was approached by Mr. Stuart who asked Mr. Simmons questions surrounding appropriateness of discipline of Robert Miller, the child who died and is concerned in these proceedings. Mr. Simmons in his affidavit indicated that he instructed Mr. Stuart as to appropriateness of discipline, what he should do under given circumstances and that the meeting took place only three weeks prior to Robert Miller’s death. We originally submitted only Mr. Simmons’ affidavit in supplementation, if you will, to our petition for post conviction relief. That original petition was denied by the district court without hearing. Then, in a response to the court’s denial, and in the interim between the time we filed our original petition for post conviction relief and the court’s denial of it, a matter came to light, a matter which I feel is critical to this Court’s consideration of the evidence in this case. In that interim period of time, myself and then counsel for the state, Mir. Calhoun, were contacted by the U.S. Attorney who had in turn received correspondence from one Leila Smith, the mother of Lynn Matieoni. Mrs. Smith advised that Lynn Matieoni had heard of Mr. Stuart’s conviction death sentence and had evidence to present to anyone who would listen at the suggestion, and after receiving the correspondence from the U.S. Attorney, and both myself and Mr. Calhoun wrote to Leila Smith, and I in turn was able to contact Lynn Matieoni. The relevance of Lynn Matieoni’s testimony is overwhelming at this point. Lynn Matieoni has supplied affidavits in our supplemental petition for post conviction relief to the effect that in 1975, from August of that year until October of 1976, she virtually resided on a full time basis with Mr. Stuart. Mind you, her affidavit does not say that they lived together as man and wife or as a couple, but her affidavit clearly says that they were either at one or the other’s home virtually every night. Lynn Matieoni had two daughters at that time. Katrina, her oldest, was then five. Mr. Stuart cared for Katrina on a daily basis. Mr. Stuart, the man who was characterized by Judge Schwam as a being a torturer of women and children, a murderer, Mr. Stuart cared for not only Lynn Matieoni’s children but did so in a fashion which was exemplary according to her affidavit.
THE COURT (JUSTICE JOHNSON): Mr. Kinney, if I could interrupt you a moment.
MR. KINNEY: Certainly, sir.
THE COURT (JUSTICE JOHNSON): At the time you filed the motion for investigative assistance, prior to trial, did you have in mind locating Lynn Matieoni.
MR. KINNEY: Yes, Your Honor. Very much so.
THE COURT (JUSTICE JOHNSON): By name?
MR. KINNEY: Yes. And. Yes, sir.
*900THE COURT (JUSTICE JOHNSON): Can you tell me, and I’ve reviewed your affidavits, in this matter, what other evidence you were seeking at that time through the investigative assistant.
MR. KINNEY: I’d like to address that, if I could. And I think that a motion for investigative assistance is especially relevant here. Mr. Stuart had informed me of a special relationship he had with an individual by the name of Lynn Matieoni during trial preparation. At all times I was aware of her name. At the time I filed my motion for investigative assistance, we were seeking not only to find Ms. Matieoni, if she were to exist, but we were also seeking to find witnesses who resided in the Wooden-ville area who could contradict the testimony-of Theresa Jacobsen, Vicki Nelson, and Sharie Dally concerning events which occurred in Seattle. Please, and I ask the Court to remember that the motion in limine we filed, was filed because the trial court requested that we file a motion in limine so that he would tell us what portions of the preliminary hearing transcript, ah, testimony, he would allow at trial. He denied that motion, as I recall ten weeks prior to. trial. Immediately after his denial of our motion in limine in asking him to segregate which portions he would hear, I filed the motion for investigative assistance because we were then faced with the prospect of addressing each and every issue which was presented at the preliminary hearing.
THE COURT (JUSTICE JOHNSON): At that time did you specify to Judge Schwam exactly what investigative efforts you wanted to pursue.
MR. KINNEY: Your Honor, I’m afraid I’m going to trust my recollection. The court directed me in response to its, when I filed my motion for investigative assistance, the court directed me to file an affidavit setting forth what I wanted to do. I do not recall whether that affidavit specifically mentioned Lynn Matieoni by name, or specifically mentioned who I wished to contact. The court, trial court, directed that I have access to Seattle telephone directories. The sheriff's department gave me a set of Seattle directories. The trial court then instructed me to come up at night, in district court chambers, in Clearwater County Courthouse, and telephone as many people, reach them by telephone, if I could. Then at the following, our law and motion day in Clearwater County is every other Thursday, the following law and motion day I reported to him on the contacts I had made by telephone. He then authorized $300 and that was it, for investigative expenses. That $300 was intended to compensate me for an airplane ticket to Seattle and motel and rental car—
THE COURT (JUSTICE JOHNSON): That was your specific purpose in going to Seattle to seek Lynn Matieoni?
MR. KINNEY: — among other things, Your Honor.
THE COURT (JUSTICE JOHNSON): What other things?
MR. KINNEY: The other things were to investigate witnesses in the Wooden-ville area, where Mr. Stuart had resided. Witnesses who could testify to events which had been alleged to have occurred by Theresa Jacobsen. The allegations of a drowning, the allegations of a beating of Theresa Jacobsen right when she left Mr. Stuart. I interviewed neighbors, friends, and ex-roommates of Mr. Stuart to contradict those allegations. Some of my efforts were successful. We were able to get four witnesses at trial consisting of roommates, I believe, ex-roommates of Mr. Stuart, who were there prior to and during the day that Lynn Matieoni, ah, not Lynn Matieoni, Theresa Jacobsen left.
THE COURT (JUSTICE JOHNSON): Were there any leads that you intended to pursue through investigative assistance, as you had originally requested, other than the location of Lynn Matieoni and her daughters, that you were unable to complete through the $300 grant and the other assistance the court did provide you?
MR. KINNEY: Oh, yes, Your Honor. I feel that there were a multitude of *901matters which I feel I was unable to complete, that being I couldn’t track down several of Mr. Stuart’s relatives who had lived in the Woodenville area. I was there for a period of five days, using my vacation as a time to personally look after these people, or try to find them. People who had moved out of the Woodenville area and were living south of Tacoma, I couldn’t find. I feel that an investigator could have uncovered evidence that Mr. Stuart knew of, relatives who had seen him with Theresa Jacob-sen, who had seen him with Vicki Nelson, and who had seen him with Sherry Lee Dallie. But specifically Vicki Nelson and Theresa Jacobsen.
THE COURT (JUSTICE JOHNSON): When you returned from that trip, did you report your efforts in any form to Judge Schwam?
MR. KINNEY: We certainly did not file a written report of who we found. What we advised the court was that we found some witnesses that we would ultimately call at trial. I don’t have any specific recollection of a report of my efforts.
THE COURT (JUSTICE JOHNSON): Did you renew your motion for investigative assistance at that time?
MR. KINNEY: I don’t recall that I did, no. I don’t recall that I did.
THE COURT (JUSTICE JOHNSON): Did you feel satisfied with the results of your investigation?
MR. KINNEY: No. At no time did I.
THE COURT (JUSTICE JOHNSON): Did you do anything else to put the court on notice that the assistance had been granted to you was not sufficient?
MR. KINNEY: Your Honor, we did not take the effort to tell the court, “we don’t think that we have enough witnesses to counteract the testimony,” because I didn’t know what testimony Judge Schwam would allow until trial. In fact, he told’ us he would not rule on which, if any of this past business, he would allow at trial until trial. And so it’s hard for me to answer this question became I was not apprised, and never was apprised, until trial, when, ah, what witnesses he would allow and what testimony taken at the preliminary hearing he would permit.
THE COURT (JUSTICE JOHNSON): I assume being cautious you assumed he would permit all of it.
MR. KINNEY: Yes, sir. And because of that we made a very strenuous effort, as much as I could, to uncover the witnesses that would contradict everything that was said at the preliminary hearing.
THE COURT (JUSTICE JOHNSON): Were there any other investigative efforts by you or anyone else to locate any witnesses or other evidence during that period of time?
MR. KINNEY: Only my telephone calls, Your Honor, made almost nightly from the courthouse to the Seattle vicinity, and I had no one else helping me, if that's your question.
THE COURT (JUSTICE JOHNSON): Thank you.
THE COURT (JUSTICE BISTLINE): I have a question or two, Mr. Kinney.
MR. KINNEY: Yes, sir.
THE COURT (JUSTICE BISTLINE): You’re a sole practitioner?
MR. KINNEY: Not at this time, but at that time I certainly was, Your Honor.
THE COURT (JUSTICE BISTLINE): And where?
MR. KINNEY: In Orofino.
THE COURT (JUSTICE BISTLINE): And where was the trial held in this case?
MR. KINNEY: Moscow.
THE COURT (JUSTICE BISTLINE): How long have you practiced?
MR. KINNEY: I’ve now practiced 12 years.
THE COURT (JUSTICE BISTLINE): Before that were you a private investigator?
MR. KINNEY: No, sir, I never had any experience in that area.
THE COURT (JUSTICE BISTLINE): And at the time you were appointed to handle this defense, were you, I suppose, obliged, were you trying to keep up your *902private practice and stay afloat as it might be put?
MR. KINNEY: That’s a very apt characterization. The office of public defender is in Clearwater County, and presently is a part-time position. What remnants were left of my private practice — after Mr. Stuart’s case — I was trying to keep up with, I guess is the best way to characterize it. I was working Mr. Stuart’s case on an average of half time, half a day every day, and in the evening hours and every weekend. The rest of the time I tried to dedicate to keeping my practice alive.
THE COURT (JUSTICE BISTLINE): I think, unlike Ada County, you have nobody, no assistance, no legal assistance on this case?
MR. KINNEY: None at all, Your Hon- or. And I might add that further, the contract for public defender7 in Orofino, as far as I know today, and I’m no longer public defender, I quit after the Stuart case, but the contract still is such that it’s a privately contracted matter. The county does not provide secretarial or any other assistance, it is up to the individual who contracts the office to budget all that himself.
THE COURT (JUSTICE BISTLINE): Do you have any thoughts on what you’ll do next time some judge asks you to undertake a capital case?
MR. KINNEY: Your Honor, I have no doubt what I would do, and would assure this Court as I have in the past, that I do not think that any person should undertake a capital case single handedly. I think its a tough undertaking for any two people, but it was rendered in my opinion, in my strenuous opinion, almost impossible in these circumstances. I recognize that small counties have budgetary constraints, and I recognize that when a person bids any type of contractual employment you take what comes, and I’m ready and willing to accept that, and I’m not here to whine about the fact that I was alone in representing Mr. Stuart, but I respectfully submit that 19-8528 was not complied with here. *903We were not given any meaningful assistance, financial or otherwise. We asked for it; at every step we asked for, we were denied. The only time we had any professional expertise was a psychiatric opinion and ultimate psychiatric testimony at trial, and even then the bill submitted by the psychiatrist was questioned severely.
I see my green light’s going on.
THE COURT (JUSTICE BISTLINE): I have one more question. I’ve taken some of your time.
MR. KINNEY: That’s quite all right.
THE COURT (JUSTICE BISTLINE): These are things I’d like to know. I thought I understood you to say that the judge asked you to file a motion in limine.
MR. KINNEY: Yes, he did.
THE COURT (JUSTICE BISTLINE): And then he denied it?
MR. KINNEY: Yes, he did.
THE COURT (JUSTICE BISTLINE): Did he say why, was there something in the record that explains his reasoning for compelling you to do something, and then denying it?
MR. KINNEY: The court minutes reflect that the trial court, ah, I’m sure the record reflects this, the trial court asked us to file the motion in limine because, at a hearing at the, after the appellant’s initial arraignment, I questioned what, if any, evidence of the preliminary hearing would be allowed. Please bear in mind that the preliminary hearing evidence consisted of an allegation of a rape in a hospital, it consisted of an allegation that one of his girl friends said he attempted to drown her in a lake in the Seattle area, and there was also a psychiatric opinion by an individual who had never seen Mr. Stuart. And those were very troublesome to me, so I asked the court, in open court, then Judge Schwam directed that we file a motion in limine asking him to instruct, to limit. He then read the preliminary hearing transcript, apparently, in conjunction with another motion we had, and after reading that on July 29th, I believe, ten weeks prior to trial, denied the motion in limine and said he couldn’t at this point decide which of that testimony he would allow.
There is just, this entire case, and I can’t over-stress this, this entire case was permeated with hostility and an atmosphere of intense hatred to Mr. Stuart. I have never in 12 years of practice had a trial that was conducted in such an emotional environment, and we now have people who can contradict the state’s witnesses that produced the only evidence to convict Mr. Stuart. The, and I feel its especially important because Judge Schwam, in his opinion, in his finding of aggravating circumstances under 19-2515, said that he found the defendant beyond a reasonable doubt had attempted to kill his girl friend by drowning, he found that beyond a reasonable doubt the defendant had raped his ex-wife in a hospital. Those were matters which were discussed at a preliminary hearing when the defendant had never even been apprised of what line the testimony was going to take, ah, was going to be given at the preliminary hearing, until it was given. And then, and what Judge Schwam does is take the quantum leap and never again discusses that during trial, but at the time of sentencing he says, “I find that the defendant, beyond a reasonable doubt, tried to kill his ex-wife — his girl friend, and raped his ex-wife in a hospital. Which is sheer and utter nonsense. And it was stuff that we couldn’t even rebut at the preliminary hearing and was not allowed at trial. That’s our position. We recognize *904that State v. Osborn, the sentencing court can hear preliminary hearing testimony. This case deviates from that by a substantial degree in the sense that the sentencing court found beyond a reasonable doubt that Mr. Stuart had committed these alleged acts.
Oral argument at Moscow, Idaho, April 7, 1988.
Thereafter the Court was furnished with defense counsel’s supplemental briefing which both clarified his responses to Bench questions at oral argument and provided us with citations to the appeal records:
At the Oral Argument held in this cause on April 7, 1988, at Moscow, several of the Justices expressed concern over the findings of Judge Schwam in considering the death penalty under Idaho Code Section 19-2515. Specifically, the Court considered certain findings of the Trial Court based upon testimony presented at the Preliminary Hearing and not at Trial. The purpose of this correspondence is to set forth the specific portions of the record which illustrate the findings entered by Judge Schwam, and the location of any relevant data in the Preliminary Hearing and Trial Transcript. This letter is mailed to you, and is intended only to provide assistance to the Clerks who are no doubt reviewing the record as a result of our Oral Argument.
The specific finding of Judge Schwam which was raised at the time of Oral Argument is located at page 225 of the original Clerk’s Transcript on Appeal. At that point in the record, the Trial Court entered a finding pursuant to Idaho code Section 19-2515(f)(8) that the defendant, by prior conduct in the commission of the murder at hand had exhibited a propensity to commit murder which will probably constitute a continuing threat to society. Judge Schwam’s comments, in pertinent part, are set forth as follows:
The evidence demonstrates beyond a reasonable doubt that this defendant attempted to drown a woman as a means of torture and that this defendant inflicted brutal beatings upon his second wife and raped her while she was in the hospital recovering from an automobile accident.
Judge Schwam was referring to the testimony of Theresa Jacobsen, a former girlfriend of Mr. Stuart, and Vicki Nelson, his former wife. The testimony of Ms. Jacobsen concerning the alleged drowning attempt was taken at the Preliminary Hearing, and contained on pages 151-154 of the Preliminary Hearing Transcript. After a thorough review of the Trial Transcript I find that Ms. Jacobsen testified briefly concerning this incident at Trial, however did not offer the opinion that Mr. Stuart was trying to drown her. Her Trial testimony relating to this incident is contained on pages 616-617 of the Trial Transcript.
With respect to the incident involving an alleged rape of defendant’s former spouse while she was in the hospital recovering from an automobile accident, Judge Schwam is referring to the testimony of Vicki Nelson, taken only at the Preliminary Hearing. Her testimony concerning this matter appears in the Preliminary Hearing Transcript on pages 222-224. At Trial, Ms. Nelson testified commencing at page 636 of the Trial Transcript, with her testimony on direct examination concluding at page 651. She was not permitted at Trial to testify concerning the alleged hospital rape which was earlier testified to at the Preliminary Hearing. No reference to that incident is contained anywhere in the Trial Transcript.
At the time our Oral Argument was held, I did not have before me the first Clerk’s Transcript on Appeal which contained the Court’s findings. Also, the Preliminary Hearing Transcript and the Trial Transcript were not before us for reference. Upon review of both transcripts, and the specific language of Judge Schwam in entering the finding pursuant to Idaho *905Code Section 19-2515(f)(8), it appears that the incident involving Ms. Jacobsen was indeed testified to at Trial, however without the detail or conclusions drawn at Preliminary Hearing. The incident involving Ms. Nelson and her alleged rape at the hospital was clearly not part of her Trial Testimony, having been presented only at Preliminary Hearing. Since the Preliminary Hearing was taken before a Magistrate, Judge Schwam did not at any time hear live testimony concerning this incident.
Mr. Kinney’s assertions are fully substantiated by the appeal record. At the preliminary hearing the witness Theresa Jacobsen did not testify that the defendant had tried to drown her in the lake, but rather that at a time thereafter she had considered making such a statement to the person in a car adjoining the car she and defendant were in while parked at a 7-11 store. Preliminary Hearing Tr., p. 154.
She did not give any testimony at the trial which in any way related to the preliminary testimony concerning any “attempted drownings,” other than that at some unidentified trial there had been testimony as to her state of sobriety on the evening of the lake incident, “... Gene [defendant] said he threw me in the lake to sober me up ... I was not drunk.” Trial Tr., p. 634. On direct examination she had told the prosecutor that she had purchased two bottles of Lancer’s wine for consumption by her and the defendant. Vicki Nelson at the preliminary hearing did testify to what she would “consider him raping me in the bathroom of the hospital room.” Preliminary Hearing Tr., p. 223. At the trial before the jury no such testimony was given.
The foregoing serves to point out the accuracy of defense counsel’s briefing. It is extremely important in that, as has been seen, Judge Schwam at sentencing utilized as gospel what he remembered as being the Jacobsen testimony, i.e., that defendant attempted to drown her — found as a fact proven beyond a reasonable doubt, and also relied on the Nelson testimony that she was raped in the hospital — found to be been proven beyond a reasonable doubt.
What actually has been now established — beyond the cavil of dispute — is that such judge-made findings were based solely on a cold written preliminary hearing which Judge Schwam admittedly read long prior to trial. Moreover, that trial commenced and proceeded without Judge Schwam making any ruling whatever on the in limine motion filed by defense counsel at the judge’s direction.
One of the main thrusts of defendant’s post-conviction proceeding, as also well stated in his narration at oral argument, was the frustrating impossibility of adequately preparing for trial of a capital murder charge without knowing whether the trial judge would keep out or allow in all of the preliminary hearing testimony which was extrinsic to the charge properly filed in Idaho, i.e., that of taking the life of Bobby Miller in Clearwater County on the 19th day of September, 1981. To which must be added the handicap of inadequate assistance and funding with which to combat unlaid charges of incidents which took place five hundred miles away in western Washington ten years prior to the charged homicide.
Unfortunately, the manner in which Judge Schwam conducted the trial has made appellate review troublesome, if not difficult. In his short supplemental brief, set out supra, for instance, defense counsel states as to the Nelson testimony, “She was not permitted at Trial to testify concerning the alleged hospital rape ...” Why she was not permitted to do so is not reflected in the record. The only reason for this, and other inexplicable trial happenings was Judge Schwam’s sua sponte in limine ruling that on all matters of procedure counsel would approach the bench rather than put the jury to the exercise of being returned to the jury room. While it was indeed an ingratiating courtesy extended to the local jurors, it left the court *906reporter out in the cold as well. The record is replete with bench-attorneys discussions held “off the record.” Nowhere in the record is there found any suggestion that the prosecutor and defense counsel both waived the statutory requirement, I.C. § 1-1103, that the reporter is required to take down all proceedings in a criminal case. See State v. Wright, 97 Idaho 229, 542 P.2d 63 (1975), (“appellant contends that the failure of the district court to require the court reporter to record closing arguments of counsel was error and contrary to the requirements of I.C. § 1-1103. We agree.”) See also in the same case the dissenting opinion of Justice Bakes, concurred in by then Chief Justice McQuade. Justice Bakes and Chief Justice McQuade strongly disagreed with the majority’s conclusion that the failure of the trial court to comply with the statutory requirement was harmless error, and that it was not fundamental or constitutional error which entitles the defendant to a new trial:
When this Court is unable to review the proceedings of the lower court because, in violation of the statues of this state, the record of those proceedings was not properly taken and preserved, and due to the record’s deficiencies we are unable to determine whether a defendant’s judgment of conviction has been obtained in a proceeding tainted with fundamental error, then we must apply the rule of Ebersole v. State, 91 Idaho 630, 428 P.2d 947 (1967), where we stated:
Appellant’s dilemma was not of his own making. The statutory provisions requiring the recording of oral proceedings by the court reporter ... are fairly designed ... to protect a defendant from the very situation now before this Court.
Wright, 97 Idaho at 235, 542 P.2d at 69, quoting with approval to Ebersole, supra (Bakes, J. dissenting). Wright was not a case where the defendant was at risk as a prosecutor’s candidate for the death penalty. Rather that defendant was tried and convicted on a charge of robbery. I very much believe that, had the defendant in Wright be convicted of murder and sentenced to death, at least one and more likely two or three, of the justices who comprised the majority would have swung to the views of Justice Bakes, and there would have been a retrial.
Which brings me to the point of making two observations regarding the trial court’s conducting the trial in such a manner, i.e., unrecorded bench discussions as well as unrecorded decisions made with counsel in chambers has deprived the members of this Court from performing our statutory obligation — independent of whether the defendant chooses or declines to appeal, of making the mandatory review required by I.C. § 19-2827:
Review of death sentences — Preservation of records.— (a) Whenever the death penalty is imposed, and upon the judgment becoming final in the trial court, the sentence shall be reviewed on the record by the Supreme Court of Idaho. The clerk of the trial court, within ten (10) days after receiving the transcript, shall transmit the entire record and transcript to the Supreme Court of Idaho and to the attorney general together with a notice prepared by the clerk and a report prepared by the trial judge setting forth the findings required by section 19-2515(d), Idaho Code, and such other matters concerning the sentence imposed as may be required by the Supreme Court.
The legislative requirement that the Court conduct an automatic review of a death penalty case irrespective of the defendant appealing is, and properly so, an expression of the legislative intent that no person suffer the extreme penalty without the safeguard of judicial review of the entire record and transcript. Up until this time all death penalty sentences have been appealed by counsel representing the defendants.
One day, however, there will be the defendant who elects not to appeal, as has *907happened elsewhere. When that chances to happen this Court will find itself independently reviewing the record and transcript without the guidance of the briefing of counsel, which naturally has been of great value.
Because in the past we have had the aid of counsel, representing the State and the defendants, it can safely be said that practically all, if not absolutely all, of our focus has been on the appeal procedure and none on the review mandated by the statute. My own belief, which has been mentioned heretofore only within these marble walls, is that we have an obligation in death penalty cases to delve into the record to satisfy ourselves that it is free of error regardless of and in addition to the briefing of counsel.
If I were to command a majority, a ruling would be made this day that in any death penalty case, where we do not have the complete record, i.e., clerk’s and reporter’s transcripts of all proceedings, as required by both I.C. §§ 1-1103 and 19-2827, reversal for a new trial will result in accordance with the views espoused by Justice Bakes in the Wright case. “The statutes are there to be followed,” per Justice Donald Burnett in State v. Goldman, 107 Idaho 209, 687 P.2d 599 (Ct.App.1984) and State v. Toohill, 103 Idaho 565, 650 P.2d 707 (Ct.App.1982). The stakes are far too high in death penalty cases to look the other way where we see noncompliance with the statutory requirements.
CONCLUSION
A thorough review of the appeal record establishes to my complete satisfaction that an extremely diligent and conscientious defense attorney did all in his power, and within his devastatingly insufficient financial means, toward trying to obtain the fair trial which all defendants deserve, but especially those who face the extreme penalty of death.
In particular my concerns were with the treatment defense counsel received at the hands of the trial judge where counsel was deprived until midway through trial of any ruling whether to allow the prosecution to bolster its ease by testimony of altercations and alleged abuse of two women which took place ten years in the past. On Thursday, October 7, 1982, shortly before adjourning for the noon recess, the fourth day of trial, under continued pressing for a ruling, finally the court verbalized one:
THE COURT: I am aware the State bears an enormous burden in trying to convict anyone of any crime because it must convince the trier of the fact that every material element is true beyond a reasonable doubt. In this particular case, the Prosecutor must convince the trier of the fact that your client was engaged in a course of torture. And produced this child’s death, not necessarily intending death but only intending torture. And in that sentence alone I’ve had to use the word ‘intending’ a number of times. And so this ease, to a great extent, is going to turn upon what the jury thinks was going on in your client’s mind during that interval when he dealt with this child. And as you yourself have said, the surface evidence indicates an effort to discipline. However, the evidence before me is such that that allegation or implication, I should say, of discipline is very questionable. At this point in time I would suspect that if the jury had to deliberate, determining whether or not your client was engaged in discipline by ordering a two and a half to three year old to conduct his eating in such a precise manner and then punishing him each time he could not comply, I think it would be very difficult for me to assume that the jury could not responsibly decide that that was not discipline. That that was a form of more serious teasing or in other words, torture. That that was a process by which to emotionally punish that boy. The whole process. I think the jury could conclude that with this evidence alone. But I think they could also conclude that it was an effort *908to train him to eat in a certain way. In other words, I think that the intent is not clear at this time. If I felt the intent was overwhelmingly clear in either direction — in other words, that either the Prosecutor had failed or had totally succeeded to demonstrate his case at this point I would probably be very hesitant to allow evidence of past behavior which will in fact be prejudicial to this case. But I feel in fact what we have in is an unclear situation and I think that the evidence of these other women in your client’s life does bear directly on the underlying state of mind he has while he’s acting with respect to this boy.
Now, I’m not convinced that all I read in the preliminary hearing from each of those witnesses bears on that. And that creates for me some difficulty as I realize the uncomfortable position for your if you have to object to every single question the Prosecutor attempts to ask the present witness or others he will call. I have already cautioned the Prosecutor that I’m troubled by this situation. And in your presence indicated that at no time did I think I was prepared to admit everything that came out in that preliminary hearing. And that, therefore, there would have to be some means adopted to — if I let any of this past behavior in to structure the way in which it comes in so that we can control the incidences that we deal with without you having to appear to be engaged in a process of trying to prevent everything reaching the jury. I don’t think I want to put you in that position.
I am convinced from reading the preliminary hearing transcript that the Prosecutor’s assertion that he feels he can prove to a trier of the fact that your client simply needs someone to torture, something like a whipping boy, for his own pleasure is actually something that he may in fact be able to prove beyond a reasonable doubt. And I am aware from reading the preliminary hearing transcript that the present witness suffered noticeably less than those other women in his life, especially the more recent ones, although it did go back as much as ten years. And I think the Prosecutor has the opportunity to prove or should have the opportunity to prove the state of mind he alleges your client to have and that in fact it became this child’s role to do the suffering for the benefit of your client. And I think that’s his basic intention. He’s in effect said it and I think he has the evidence that might allow the trier of the fact to conclude that beyond a reasonable doubt that that is what’s going on with your client.
If I exclude all of this evidence from this proceeding, then, I leave this jury trying to determine the status of your client’s mind with virtually no evidence available on the subject. When in fact that’s the heart of this case to a great extent. And I don’t think I can impose that situation on the Prosecutor simply because so much of. what your client did in his past which indicates status of his mind in dealing with this child were reprehensible acts. It is unfortunate for your client that his reprehensible acts show the status of the mind in dealing with this child.9 And as prejudicial as they will be, I think giving the status of the law on Prosecutor’s proving death by torture that the Prosecutor does have to show very clearly this was not a discipline situation. That the intent was in fact to torture. And I think that the Prosecutor has through that preliminary hearing demonstrated substantial amount of evidence which is highly relevant to your client’s state of mind. So as reluctant as I am to go into these matters and as much as I understand they will lengthen these proceedings as well as possibly prejudice the jury against your client, I think I would in effect be *909depriving the State of highly relevant evidence which is so relevant that it overcomes any prejudicial effect it might have in terms of its being admissible.
Although the trial court said a great deal in ruling on the motion, there is not readily seen therein that Judge Schwam advanced any reason for not having arrived at that conclusion much earlier than midway in trial. Yet, it is inescapable from the Judge’s own mouth that he had read the preliminary hearing transcript and knew that the testimony of the two women would be prejudicial to the defendant in a trial on a charge of killing a small child by the infliction of torture, wholly unrelated to the incidents if true, as to the two women. The trial court acknowledged the exceptionally high potential for extreme prejudice when he instructed the jury — in mid-trial— with a single isolated special instruction:10
Some of the testimony which will hereafter be presented by the State concerns allegations of acts committed by the Defendant against people other than Robert Miller. And are in no way the basis of any charge against the Defendant. Notwithstanding the fact that this testimony does not relate directly in any way to the death of Robert Miller, I will permit the State to present it for the single purpose of attempting to show motive or intent on the part of the Defendant to torture the deceased. It is not to be considered by you as evidence or proof on whether or not the Defendant committed any other material element or aspect of the crime charged. It may only be considered by you as evidence bearing on the intent or motive of the Defendant on September nineteenth, 1981. You are instructed that these allegations concern acts not involving the deceased which if they occurred at all occurred only in the presence of the Defendant and his accuser. For this reason and because these allegations are not involving the deceased are highly laden with emotion against the accused you must weigh carefully the credibility of each such witness giving the benefit of every doubt to the accused and viewing critically the motive or possible prejudice of his accuser.
Not only was defense counsel hamstrung in his preparation efforts by the court’s unreasonable and totally unacceptable delay in not making the ruling until mid-trial, but the monstrosity of the proposition is found in the failure to offer any meaningful explanation for such a judicial display of obduracy.
The judge did, however, make an attempt at explaining the hypothesis upon which he rationalized that he could rule in the wholly unrelated evidence of alleged mistreatment of the two preliminary female witnesses, Jacobsen and Nelson. The judge found a “continuum,” a fine-sounding word which we older practitioners have recently learned from law clerks, although it has not yet made its way into Black’s Law Dictionary, 5th ed., To defense counsel’s assertion that that key preliminary hearing testimony of those two witnesses “comes as far back as ten years prior to the child’s death,” the judge responded with his continuum hypothesis. Tr. Vol II., p. 457, 1. 21:
THE COURT: Of course, I have familiarity with the State’s evidence because I reviewed the preliminary hearing transcript. I feel he is in a position to demonstrate a continuum such that after that demonstration he has the possibility of convincing the jury beyond a reasonable doubt that your client simply behaves in a certain way and that that explains his behavior towards this child. Since I feel he can do this in a continuum I feel he is entitled to present the totality of that continuum because the final end of that continuum would be this child. That is what the State’s case *910is and I think his evidence works in that fashion. So, yes, I am prepared to let him go well back because I feel it’s all a continuum of behavior which culminates in this child and explains your client’s intent. At least offers an explanation which would allow the jury to conclude beyond a reasonable doubt what was the motivating intent of your client at the time he was acting towards this child. So I realize some of the evidence is very remote in time from this incident but because it is part of a continuum I don’t think — that there’s a reason for me to give a cutoff date to say five years is reasonable or — and seven years is not, or seven years is reasonable and nine years is not, it's all a continuum, it’s either all reasonable or all unreasonable. I’m not convinced that we’ve reached a point that it is all appropriately admitted on this issue of intent11
In some minds a continuum which jumps a gap of ten years may be acceptable. Not in mine, however. Webster’s New Collegiate Dictionary, published by Merriam, suggests that a continuum is akin to continuity, and is “something absolutely continuous and homogeneous, ... an unintentional ordered sequence.” But, if reasonable and legally trained minds can differ on the judge’s observation of a continuum, it simply cannot be that the judge was justified in requiring almost a half year in which to fashion that rationale by which he would, in mid-trial, declare that the preliminary hearing testimony of Jacobsen and Nelson could be repeated to the “live” jury. The preliminary hearing transcript was completed and certified to by the reporter on the 10th of December, 1981, all 851 pages spanning five days of testimony. At that time the case was no longer before the preliminary hearing magistrate, but in district court where the transcript was filed. As noted earlier, the district judge conceded his familiarity with the contents of the transcript.
Being entirely satisfied with the accuracy of defense counsel’s assertions made in the colloquy between the court and counsel at oral argument, at this point, for the benefit of the other members of the Court, and because on the direct appeal none of this was discussed in the opinions, it is believed in order to reproduce pertinent supporting portions from the clerk’s record:
This hearing held to hear the defense Motion to Dismiss Information. Court rendered it’s decision on the preliminary transcript and found the evidence substantially supports the allegations that the death was by torture and that the person responsible for the death is the defendant. Court denied the Motion to Dismiss the Information.
Motion to Dismiss Information, Court Minutes of March 25, 1982, Clerk's Record, p. 20.
COMES NOW, the above named defendant, by and through his attorney of record, ROBERT E. KINNEY, and respectfully moves this Court for an Order setting forth the scope and extent of testimony and evidence to be presented by SHARIE LEE DALLY, THERESA JACOBSEN and VICKI NELSON, witnesses called on behalf of the prosecution at the preliminary hearing held in this matter on November 2, 3, 4, 6, and 10, 1981.
This Motion is brought in accordance with the directive of this Court, following a hearing held on defendant’s Motion to Dismiss heretofore filed, argued and presented.
Motion in Limine, dated May 27, 1982, Clerk’s Record, p. 22 (emphasis added).
COMES NOW, GENE FRANCIS STUART, by and through his attorney of record, ROBERT E. KINNEY, and re*?spectfully moves this Court for an order permitting the expenditure of public funds to hire a private investigator for purposes of discovering facts and information which defendant believes will impeach the testimony of prosecution witnesses testifying at the preliminary hearing in this cause, and which are expected to testify at trial now scheduled for October 4, 1982.
This Motion is based upon the provisions of Idaho Code Section 19-852 and upon the Affidavit of defendant’s counsel annexed hereto.
DATED this 29 day of July, 1982.
Is/ Robert E. Kinney
ROBERT E. KINNEY
Attorney for Defendant
Motion for Investigative Assistance, Clerk’s Record, p. 28.
Defendant not present in court but was represented by attorney, Mr. Kinney. State was represented by Mr. Calhoun. A motion in Limine, filed by Mr. Kinney, was presented for argument. Court denied this Motion. Court instructed that the Prosecutor and the Sheriff may undertake an investigation of criminal records of all witnesses used at the preliminary hearing.
Mr. Kinney informed the court and State that the psychiatric report from Dr. Wetzler had not been received but when it arrives, all will receive a copy of the report.
Court set date for JURY TRIAL for MONDAY, OCTOBER 4, 1982 at 9:00 A.M. and advised the defense to have all legal matters out of the way by 9-1-82. The place for the Jury Trial will be announced at a later date.
Court Minutes of July 15, 1982, Clerk's Record, p. 29 (emphasis added).
Defendant not present in court but was represented by his attorney, Mr. Kinney. Mr. Calhoun was present on behalf of the State.
The Court states this matter on for hearing the defendant’s Motion for Investigative assistance filed on this date. Mr. Kinney was heard in support of his motion. MR. CALHOUN CONCURRED THAT IF DEFENDANT WAS TO HAVE A FAIR TRIAL, HE NEEDS AN INVESTIGATOR.
Court is prepared to grant the motion but requests defendant submit an additional Affidavit on who it will be and what the investigation is to reveal and why. Mr. Kinney stated he would need some time to prepare his demonstration and can send it in writing to Judge Schwam.
Court Minutes of July 29, 1982, Clerk’s Record, p. 30 (emphasis added).
Defendant was present in court with attorney, Mr. Kinney. State was represented by Mr. Swayne. Mr. Kinney gave the court the specifics on request for payment of investigation for defendant and listed the names of those he felt would impeach witnesses Dally, Jacobsen and Nelson.
Court findings were that not all these witnesses required investigator____ Court prefers the defense attorney attempt to contact witnesses first by telephone. Court denies an investigator at this time and proposes that defendant and attorney give all the information possible (on the location of prospective witnesses to be used) to the authorities____ The court will sign an order that authorities will cooperate to locate these individuals but their effort must not include any actual contact. Mr. Kinney is to make the contact; & prepare Order.
Mr. Kinney asks that the house involved in one incident be investigated to provide information for defense. Court allowed that the house be located and that photographs be taken for investigation.
Court Minutes of August 12, 1982, Clerk’s Record, p. 31 (emphasis added).
Defendant not present in court but was represented by his attorney, Mr. Kinney. State was represented by Mr. Calhoun. *912Mr. Kinney advised the court he had contacted all the witnesses but one, who had an unlisted number. Court requested that Mr. Calhoun request the unpublished number on that witness. Mr. Kinney moved that he be allowed to travel to Seattle to personally contact the witnesses at court expense. No objection by the State. Court grants and authorizes up to $300.00 allowance for expenses of Mr. Kinneg for a few dags.
Court announced the trial, which is set for October 4, 1982, will be held in Latah County on Change of Venue. Mr. Kinney objected to the location and moved for a location of greater distance from Orofino. Denied.
Mr. Calhoun to prepare the order on the Change of Venue location.
Court Minutes of August 25, 1982, Clerk’s Record, p. 37 (emphasis added). (The list of witnesses Mr. Kinney referred to he had earlier said would be sent to the judge. The judge did not make it of record. Obviously Lynn Matieoni, who only surfaced after trial and after conclusion of the direct appeal, was not on the list.)
Defendant present in court with attorney, Mr. Kinney. State was represented by Mr. Calhoun.
Court advised a Motion to Dismiss on for hearing today. Mr. Kinney was heard in support of his motion. Court denies. Mr. Kinney moved that the jury in the forthcoming trial be sequestered. Court denies and advised defense that after jury is picked, defense can renew the motion again. Court will rule at that time.
Court advised of petitions in file concerning payment of witness fees for a witness at the jury trial. Petitions were all signed by Judge Haley. Mr. Calhoun explained reasons for this to the Court. Judge Schwam grants petitions and signs Order over Judge Haley’s signature, indicating his ratification of same.
Motion for payment of costs to defense, filed by defense, was heard. Court requests that Mr. Kinney submit his statement of expenses incurred in investigation to the Board of County Commissioners of Clearwater County for payment and if denied, the Court will grant the motion for payment from District Court Funds.
Court Minutes of September 30, 1982, Clerk’s Record, p. 44 (emphasis added). (The caprice of the judge in this regard was exposed to public view in Stuart I on direct appeal, but not in the majority opinion. See 110 Idaho at 190, 715 P.2d at 860.)
One would like to think that when the prosecuting attorney had the courage to advise the judge that defense counsel could not obtain a fair trial for his client without the assistance of an investigator, the prosecutor knew well that of which he spoke. For the court to persist in denying defense counsel’s request, joined in by the prosecutor, displays a quality of judicial arrogance that has likely not been seen in this country since King George III chose his own English judges for the colonists or, worse yet in serious crimes, had those American colonists charged with capital offenses against the Crown transported to England. That same quality of arrogance also prevailed when venue was changed, belatedly, in this case from Orofino, Idaho, to Moscow, Idaho, as previously discussed when this Court had the direct appeal. The defendant not only did not avoid the publicity which precipitated the motion, but as in the change lost the benefit of being tried before a jury of his peers.
There may be another reported case where defense counsel was so much shortchanged by the presiding judge in a criminal case as here transpired, and as completely undermined in his efforts to render dedicated service to an accused defendant, but it has not been brought to my attention.
In sum, only if there are three members .of this Court who are willing to close their eyes, can this Court affirm Judge Schilling’s order denying any hearing on the *913defendant’s petition for post conviction relief. Too well documented is Judge Schwam’s finding, prominent in his written sentencing decision, that defense counsel stipulated that the court could make use of the testimony contained in the preliminary hearing transcript.
Moreover, as to the same type of testimony which the court allowed the jury to hear at trial, it must be remembered that also was the linch-pin upon which imposition of the death penalty was fastened.
Note should also be taken, as it was in my opinion on the direct appeal from the conviction and the sentence, that the trial judge cut off defense counsel’s right to request sequestration of the jury in his opening remarks to the entire panel of prospective jurors:
In fact, this is probably as good a time as any to explain that this is a type of case in which the Defense can request that the jury be sequestered. That means that all during the trial whoever is chosen to be on the jury would have to be under the control of the bailiff at all times. That means you’d be placed in a motel and whatever you saw or heard would be censored. You’d be away from your families, you wouldn’t have evenings to deal with any business matters you might have. It is, in other words, an enormous inconvenience. That’s not going to happen in this ease. The jury is not going to be sequestered. I am no longer required by law to do that.
State v. Stuart, supra, 110 Idaho at 190, 715 P.2d at 403.
The law until amended by the 1981 legislature, and prior thereto and as it had been even prior to statehood did not allow a jury in any murder case to separate after the cause was submitted to them. Judge Schwam would be the first judge to take advantage of the change in the law which became effective just two months and 19 days before the homicide in this case. Undoubtedly his announcement to the jurors placed him in high favor. The law which he did not declare to those jurors, however, placed upon a judge the onus of exercising discretion in such a matter, a circumstance also heretofore discussed. Stuart I, supra, 110 Idaho at 192, 715 P.2d at 863 (Bistline, J. dissenting).
Not discussed therein, however, was that the legislature, after the majority blithely had held on this point that there was “no indication that any juror was exposed to prejudicial publicity during the course of the trial,” 12 at the very next ensuing session withdrew that grant of judicial discretion “in causes where the defendant has been charged with first degree murder.” Ch. 145, 1987 Idaho Sess.Laws 289-290. The legislative sense clearly was that in a capital case where the awesome penalty of execution may be imposed the jury must be sequestered. What that translates into is simply this: The risk of jurors being tainted by the comments of well-meaning people is too great, especially where all of those people and probably the jurors, too, are being exposed to media publicity, which by the nature of the very beast is ordinarily attuned to the sensational.13 Except for *914the gap, the legislatures of Idaho, Territorial and State, have recognized that in such emotional cases as first degree murder a defendant may see very little of procedural due process unless the jurors are isolated from improper influences. In Idaho’s celebrated first torture murder case, so much worse was the opportunity for prejudicing the accused.
A parting shot, the statement which the prosecutor made to the judge: MR. CALHOUN CONCURRED THAT IF DEFENDANT WAS TO HAVE A FAIR TRIAL, HE NEEDS AN INVESTIGATOR. Instead, per the discretionary generosity of the trial court, no investigator was allowed and only $300 for expense money for Mr. Kinney to travel to the Seattle area for a few days of investigation on his own. This is not even a scintilla of compliance with the legislature’s statutes, I.C. §§ 19-852 and 19-861, supra, p. 26, 27, and 28. If the actions of the trial judge in this case did not deprive the defendant of procedural due process then there will never be such a case.
APPENDIX C
The Bistline, J., dissent to the 1990 Opinion No. 35, filed March 12, 1990, which states on its face: “1989 Opinion No. 28, issued March 10,1989, is hereby withdrawn and this opinion is substituted therefor” deals with: (a) the variance that took place and the State’s claim of defendant’s procedural default, which did not take place; (b) the majority’s conclusion that Stuart was responsible for invited error as to the court’s instructions; (c) the proportionality as considered by the majority; and (d) the facade that the defendant stipulated to use of testimony given at the preliminary hearing:
. By the nature of things we naturally rely upon the justice who has drawn the case to correctly portray the record. Otherwise, all five of us would have to painstakingly read all of the appeal records and transcripts — an exercise which time constraints do not allow.
. The search was made solely because, by reason of the three appearances defense counsel has made at oral argument in this defendant’s appeals, his verity and sincerity are beyond question, and he has assured us that he made no such stipulation.
. Footnote 4 to the Court’s opinion on the direct appeal, 102 Idaho at 412, 631 P.2d at 194, sets out the basis of what West Publishing observed to be the holding:
While appellant's counsel did not object to the use of the preliminary hearing transcript, it is noted that he did indeed object to the sufficiency of the evidence disclosed therein. Thus, he relied upon the preliminary hearing record to show arguably mitigating circumstances and to facially show the absence of statutory aggravating factors beyond a reasonable doubt____
A remarkable non sequitor. An objection is transformed into reliance.
. McFadden, J., for the majority, relied entirely on an opinion which he had written. State v. Coutts, 101 Idaho 110, 609 P.2d 642 (1980), for the proposition that,
... in the absence of an explicit request for the formal hearing contemplated by I.C. Sec. 19-2516, the court may reach its sentencing decision by receiving the unsworn formal statements presented by both sides, together with the presentence report and arguments of the respective counsel.
Osborn, 102 Idaho at 412, 631 P.2d at 638. As there conceded, the questions were not identical, but,
... we find the analogy persuasive. Where the defendant expressly or impliedly agrees to dispense with the formality possible under the statute, i.e., the presentation of all statements orally and under oath, and instead allows presentation of facts through prior evidence, presentence reports, argument of counsel, and the like, we find no prima facie error due to such use.
Osborn, supra, at 412 [631 P.2d at 638]. The lack of identity consisted of: Coutts had been handed a 14-year indeterminate term; Osborn’s sentence was a decidedly determinate term of death by execution. This is not a distinction without a difference.
. Shepard, J. did not join the opinion for the Court, but dissented for reasons unstated.
. When an opinion issues out of this Court doing as much damage to statutory provisions, as Justices McFadden, Bakes, and Donaldson accomplished in Osborn, the prosecuting attorney and defense counsel would perform high public service by joining in presenting remedial legislation to the legislature.
. Idaho Code § 19-861 provides as follows:
19-861. Public defender’s office — Employees — Compensation—Facilities.— (a) If an office of public defender has been established, the public defender may employ, in the manner and at the compensation prescribed by the board of county commissioners, as many assistant public defenders, clerks, investigators, stenographers, and other persons as the board considers necessary for carrying out his responsibilities under this act. A person employed under this section serves at the pleasure of the public defender.
(b) If an officer of public defender has been established, the board of county commissioners shall:
(1) Provide appropriate facilities (including office space, furniture, equipment, books, postage, supplies, and interviewing facilities in the jail) necessary for carrying out the public defender’s responsibilities under this act; or
(2) grant the public defender an allowance in place of those facilities.
(c) A defending attorney is entitled to use the same state facilities for the evaluation of evidence as are available to the county prosecutor. If he considers their use impractical, the court concerned may authorize the use of private facilities to be paid for on court order by the county board of commissioners.
. Idaho Code § 19-852 provides as follows:
19-852. Right to counsel of needy person— Representation at all stages of criminal and commitment proceedings — Payment.— (a) A needy person who is being detained by a law enforcement officer, who is confined or is the subject of hospitalization proceedings pursuant to sections 18-212, 18-214, 66-322, 66-326, 66-329 or 66-409, Idaho Code, or who is under formal charge of having committed, or is being detained under a conviction of, a serious crime, is entitled:
(1) to be represented by an attorney to the same extent as a person having his own counsel is so entitled; and
(2) to be provided with the necessary services and facilities of representation (including investigation and other preparation). The attorney, services, and facilities and the court costs shall be provided at public expense to the extent that the person is, at the time the court determines need, unable to provide for their payment.
(b) A needy person who is entitled to be represented by an attorney under subsection (a) is entitled:
(1) to be counseled and defended at all stages of the matter beginning with the earliest time when a person providing his own counsel would be entitled to be represented by an attorney and including revocation of probation;
(2) to be represented in any appeal;
(3) to be represented in any other post-conviction or post-commitment proceeding that the *903attorney or the needy person considers appropriate, unless the court in which the proceeding is brought determines that it is not a proceeding that a reasonable person with adequate means would be willing to bring at his own expense and is therefore a frivolous proceeding.
(c) A needy person's right to a benefit under subsection (a) or (b) is unaffected by his having provided a similar benefit at his own expense, or by his having waived it, at an earlier stage.
. Whether he understood it or not, the judge here demonstrated that his mind was closed on the question from his reading of the transcript of the preliminary hearing. He had already decided the fact.
. As with the conferences of the court and counsel in chambers, and off-the-record bench discussions, the instructions given at the end of the trial are not found anywhere in the appeal record.
. This interrupted continuum over a ten year span is hardly supported by the two weeks continuum in State v. Needs, 99 Idaho 883, 591 P.2d 130 (1979), and State v. Sanchez, 94 Idaho 125, 483 P.2d 173 (1971).
. See 25 pages of thoroughly devastating daily reporting by two local papers which were available to all kith and kin of the jurors, and friends and acquaintances as well.
. Obviously, where defendant is charged with first degree murder, the legislature fulfilled its intent, but because of a readily apparent clerical mistake left what will be seen as a readily clarified ambiguity.
The 1981 Amendment continues to give the trial court discretion in any felony case to allow the jury to separate, or to be kept together. "Any” case, however, does not include first degree murder charges, which is treated separately by two consecutive sentences, the first of which is sound: "Provided, however, that in causes where the defendant has been charged with first degree murder, the jury may not be permitted to separate after submission of the cause. Before permitting the jury to separate after the cause has been submitted, the court shall permit counsel to place objections, if any, on the record outside the presence of the jury.” 1987 Idaho Sess. Laws, 290. The second sentence is intended to deal with separating before submission. Where the word "after" appears, the word "before” was intended. Thus is *914achieved continuity with the ensuing sentence which requires the court to hear from counsel before exercising discretion.