Full opinion text
MEMORANDUM OPINION, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER RYAN, District Judge. I. INTRODUCTION This action is a petition for writ of habeas corpus filed June 9,1986, pursuant to 28 U.S.C. § 2254. Judgment of conviction was entered after jury trial by the District Court of the First Judicial District of the State of Idaho, in and for the County of Kootenai, Coeur d’Alene, Idaho, on December 10, 1981. Petitioner was sentenced to death on April 7, 1982. On June 10, 1986, the court entered a Memorandum Opinion and Order finding that summary dismissal pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts was not appropriate. The court analyzed the law relative to petitioner’s application for stay of execution of sentence of death and determined that a stay of execution should be granted. The court entered an order for stay of execution of death sentence pursuant to 28 U.S.C. § 2251. The respondents were ordered to file an answer to the petition. On July 2, 1986, respondents filed their answer, together with transcripts listed as Exhibits A through H (hereinafter “Tr.AH”). Additionally, affidavits designated as Exhibits I through N (hereinafter “Exh. I-N”) were provided to the court. Until November 10, 1986, petitioner was represented by Edwin S. Matthews, Jr. On November 10, 1986, upon motion by petitioner, the court granted leave to proceed in forma pauperis and appointed local attorneys William L. Mauk and Bruce S. Bistline as counsel for the petitioner pursuant to 18 U.S.C. § 3006A. It was understood that Mauk would be involved primarily at the hearing stage of the proceedings. Bistline provided logistical and procedural assistance. Bistline conducted the discovery allowed by the court. Matthews continued to represent petitioner primarily in legal research and brief preparation. The above-mentioned counsel represented petitioner through the discovery, hearing and post-hearing briefing phases of this proceeding. On November 10,1986, the court ordered petitioner to file on or before December 19, 1986, an initial brief relative to the issues raised in the petition, and respondent to file a responsive brief on or before January 13, 1987. Upon motion by petitioner, the court ordered on January 8, 1987, that petitioner’s initial brief be filed on or before February 13, 1987, and respondents’ brief on or before March 13, 1987. The court informed the parties that any evidentiary hearing would be conducted by the court beginning April 6, 1987. A primary purpose for ordering initial briefing was to allow the parties the opportunity to address the issue of the right to an evidentiary hearing and the scope of such hearing given the issues raised by the petition. Secondarily, the initial briefing provided the court with an outline of the law relative to the issues which petitioner sought to address by an evidentiary hearing. The parties filed simultaneous briefs on March 6, 1987, and simultaneous reply briefs on March 20, 1987. On March 20, 1987, the court granted petitioner’s motion regarding the evidentiary hearing. Petitioner had requested the opportunity to submit evidence on five issues raised in the petition. The court reiterated that the hearing would be conducted beginning on April 6, 1987, and that three days had been set aside from the court’s calendar for the hearing. It should be noted that this court addressed numerous requests for discovery and appointment of expert witnesses, which were granted in part and denied in part. The record adequately reflects the process of discovery in this action. The court attempted to strike a balance between allowing discovery necessary for presentation of the issues raised in the petition and prohibiting discovery which could serve little purpose other than in retrying the matter. The court granted petitioner the right to have various witnesses subpoenaed and paid their witness fees at government expense and denied some such requests. Numerous depositions were conducted, documents produced and witnesses made available. The court also ordered the testing of various items of evidence which were related to the underlying crime. The court conducted an evidentiary hearing in this matter on the 6th, 7th, 8th, 13th, 14th and 15th of April, 1987. The court recognized the urgency and importance of this matter and cleared the court’s calendar to provide counsel every opportunity to present all of the evidence reasonably necessary. The matter was taken under advisement pending submission of post-hearing memoranda. The record before this court is complete and the court will herein enter the court’s findings of fact, conclusions of law and final disposition of the petition for writ of habeas corpus. II. PROCEDURAL DEFAULT The State of Idaho has claimed that the issues raised in the petition for writ of habeas corpus regarding the trial court’s denial of petitioner’s motion for change of venue and the conduct and statements made by the prosecutor have been procedurally defaulted and should not be considered by this court. The State has also asserted that petitioner’s claim of denial of an impartial sentencing authority has been procedurally defaulted. However, while perhaps the issue was not expressly raised in the direct appeal by Paradis, the question is necessarily reviewed pursuant to the Idaho Supreme Court’s duty found in Idaho Code § 19-2827. The Idaho Supreme Court engaged in an independent review of this case pursuant to Idaho Code § 19-2827 in State v. Paradis, 106 Idaho 117, 676 P.2d 31 (1983), rehr’g denied, February 14, 1984. This court considers the issue of the impartiality of the sentencing authority to have been decided on direct appeal to the Idaho Supreme Court and the issue will be reexamined by this court below. In Paradis v. State of Idaho, 110 Idaho 534, 716 P.2d 1306 (1986), rehr’g denied April 30, 1986, the court found that petitioner’s claims regarding change of venue and prosecutorial misconduct had been procedurally defaulted and, therefore, rejected as a matter of law. At that time the matter was before the Idaho Supreme Court for appellate review of the decision on the petition for post-conviction relief. The Idaho Supreme Court correctly cited the rule in Idaho that issues which could have and should have been raised on direct appeal will not be allowed to be raised in a post-conviction proceeding. The reason for the rule is that post-conviction proceedings cannot be used as a substitute for appeal. Id. 110 Idaho at 545, 716 P.2d 1306; Watkins v. State, 101 Idaho 758, 620 P.2d 792 (1980). Petitioner challenges the finding of procedural default by asserting that Idaho has established a recognized exception to the procedural rules for the consideration of constitutional claims in capital cases, citing State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981). Petitioner avers that the existence of such an exception in capital cases eviscerates the rule with respect to the request for relief in this federal action. However, the Osborn court was dealing with its requirements under Idaho Code § 19-2827 to review the whole record as it pertains to the death sentence. In a sense, Idaho Code § 19-2827 as construed by the Osborn court does create a limited exception to the procedural default rule with respect only to the procedures employed in sentencing and the ultimate sentence of death. In other words, there can be no procedural default of issues arising from the sentence of death by a failure to interpose objection at the trial level. The Idaho Supreme Court has the affirmative duty to review the entire record regarding sentencing for both asserted and unasserted errors. In this case, the Idaho Supreme Court did review the record regarding sentencing pursuant to Idaho Code § 19-2827 and any issue arising from sentencing must therefore be considered to have been decided upon direct appeal by the Idaho Supreme Court. The rule announced in the Osborn case does not extend to every issue which may or may not arise as to pretrial and trial proceedings, but only applies to the sentencing procedure and death sentence. There is no general exception to the procedural default rule in capital cases. Petitioner’s second claim is that the procedural default rule has been irregularly and sporadically applied, and therefore, the rule should not preclude federal review. The court has reviewed the cases cited by the petitioner for this proposition as well as other case law from the State of Idaho and has determined that petitioner has failed to show that the rule should not be applied in this federal review because of some irregular and sporadic application by the state courts. Petitioner’s next challenge to the procedural default is that “Idaho law provides that claims are waived for purposes of post-conviction relief only if they were ‘knowingly, voluntarily and intelligently waived.’ Idaho Code § 19-4908.” Petitioner’s Memorandum Response to Respondent’s Memorandum Dated March 6, 1987, filed March 20, 1987, at 18-19 (emphasis added). Petitioner misstates Idaho Code § 19-4908 (1979) which states: Waiver of or failure to assert claims.— All grounds for relief available to an applicant under this act must be raised in his original, supplemental or amended application. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the applicant has taken to secure relief may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental, or amended application, (emphasis added) Clearly, the emphasized portion of the statute as quoted above is written in the disjunctive and the knowing, voluntary and intelligent waiver is not the “only” method of waiver. The issues of venue and prosecutorial misconduct were “not so raised” in the original, supplemental or amended application. Petitioner next requests that this court disregard the procedural default. In Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), the Court stated: [W]e hold that counsel’s failure to raise a particular claim or claims on appeal is to be scrutinized under the cause and prejudice standard when that failure is treated as a procedural default by the state courts. Attorney error short of ineffective assistance of counsel does not constitute cause for a procedural default even when that default occurs on appeal rather than at trial. To the contrary, cause for a procedural default on appeal ordinarily requires a showing of some external impediment preventing counsel from constructing or raising the claim. Id. 477 U.S. at -, 106 S.Ct. at 2648, 91 L.Ed.2d at 411. See also, Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). The Ninth Circuit has embraced the doctrine of procedural default. Allen v. Risley, 817 F.2d 68 (9th Cir.1987). This court must review petitioner’s allegations regarding cause and prejudice in order to determine whether the procedural default of the venue and prosecutorial misconduct issues should be set aside. In Murray, the Court adhered to the view that the cause and prejudice test “in the conjunctive” must be met. Murray v. Carrier, 477 U.S. at -, 106 S.Ct. at 2650, 91 L.Ed.2d at 414. The court took the opportunity to discuss some elements of cause and prejudice: We think, then, that the question of cause for a procedural default does not turn on whether counsel erred or on the kind of error counsel may have made. So long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland v. Washington, supra, we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default. Instead, we think that the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule____ Similarly, if the procedural default is the result of ineffective assistance of counsel, the Sixth Amendment itself requires that responsibility for the default be imputed to the State, which may not “conduc[t] trials at which persons who face incarceration must defend themselves without adequate legal assistance.” Cuyler v. Sullivan, 446 U.S. 335, 344, 64 L.Ed.2d 333, 100 S.Ct. 1708 [1716] (1980). Ineffective assistance of counsel, then, is cause for a procedural default. Id. 477 U.S. at -, 106 S.Ct. at 2645-46, 91 L.Ed.2d at 408. The habeas petitioner must show “not merely that the errors at ... trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” [United States v.] Frady, [456 U.S. 152,] 170, 17 [71] L.Ed.2d 816, 102 S.Ct. 1584 [1596]. Such a showing of pervasive actual prejudice can hardly be thought to constitute anything other than a showing that the prisoner was denied “fundamental fairness” at trial. Id. 477 U.S. at -, 106 S.Ct. at 2649, 91 L.Ed.2d at 412. The asserted cause in this case as to both venue and prosecutorial misconduct is ineffective assistance of counsel. The alleged prejudice is denial of a fair and impartial jury and the improper injection of passion and emotion into the decision-making of the jury by improper statements. A. Venue The seminal case in the area of assistance of counsel is Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Strickland Court held: The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Id. 466 U.S. at 686, 104 S.Ct. at 2064. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the sixth amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. As all the Federal Courts of Appeals have now held, the proper standard for attorney performance is that of reasonably effective assistance. Id. at 687, 104 S.Ct. at 2064. Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable____ Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” Id. at 689, 104 S.Ct. at 2065 (citations omitted.) Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), sets forth the standards regarding the due process rights to a panel of impartial jurors. In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, “indifferent” jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process. Id. 366 U.S. at 722, 81 S.Ct. at 1642. It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. Id. at 722-23, 81 S.Ct. at 1642-43. While there may be cases in which pretrial publicity and other indicia of prejudice in the community so pervade and saturate the community as to render virtually impossible a fair trial, demanding a change of venue, Coleman v. Kemp, 778 F.2d 1487 (11th Cir.1985), the telling factor with respect to venue questions is whether in the totality of the existing circumstances juror exposure to pretrial publicity results in a trial that is not fundamentally fair. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). On January 23, 1981, petitioner’s attorney at that time, Frederick G. Loats, filed a motion for change of venue on the grounds of excessive pretrial publicity. Tr. A-151. On October 29, 1981, petitioner’s attorney, William V. Brown, filed with the First Judicial District Court a motion for change of venue. Tr. A-319. The motion cites pretrial publicity and general motorcycle gang animus as being sufficient grounds to change venue. Request was made that the court move the trial from Kootenai County to Latah County. Attached to the motion were the results of an informal survey conducted at the direction of Brown of individuals in both Kootenai and Latah Counties. Tr. A-322. Also attached to the motion were various newspaper articles, many of which are found in petitioner’s Exhibit No. 4 from the hearing this court conducted in this matter. Tr. A-324. Affidavits from Brown, Paradis and Investigator Joseph F. Daly are also attached to the motion. Tr. A-350-54.. On November 23, 1981, Judge Haman conducted a hearing regarding the motion for change of venue. Tr. A-361. The hearing on motion for change of venue has been transcribed and is found at Tr. B-l-34. Contrary to petitioner’s current claim, the motion for change of venue was very adequately documented and presented to the trial court. No less than thirty-nine newspaper articles were presented in support of the motion for change of venue. These articles comprise a large part of petitioner’s Exhibit 4. These newspaper articles, as well as petitioner’s Exhibit 4, are largely factual in nature. See Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). The informal survey was not intended to be as scientific as a Harris Poll, but was designed to alert the trial court to the extent of the pretrial publicity. Again, contrary to petitioner’s current assertion, this survey was intended to show the extent of not only print media exposure to this case, but also radio and television publicity regarding the matter. The court finds no basis for a claim of ineffective assistance of counsel regarding the raising and supporting of the motion for change of venue. Judge Haman issued his decision regarding the motion for change of venue on November 25, 1981. Tr. A-362. Judge Haman acknowledged that under certain circumstances there may be a case where the shocking and sensational nature of the crime and commensurate degree of publicity would require, without more, a change of venue. Tr. A-364. However, Judge Haman stated that he was aware, in his own experience, of cases tried in Kootenai County in the recent past which were at least as “shocking or sensational” as the instant matter. Tr. A-364. Judge Haman also noted, as this court has, that the newspaper articles were basically straightforward, objective and factual in nature. Tr. A-366. Judge Haman found that in cases where pretrial publicity alone does not demand a change of venue, the most commonsense procedure is to at least attempt to seat an impartial jury. If the attempt to secure and- seat a fair and impartial jury cannot be completed, then a renewed motion for change of venue would be granted. Petitioner’s motion for change of venue was denied without prejudice to the right to renew the motion if warranted. Tr. A-367. This court must, then, review the voir dire proceedings as they relate to the effectiveness of counsel regarding the support for the motion for change of venue and any claim of prejudice regarding jury bias. The court has thoroughly read the entire voir dire transcript which includes the exercise of challenges. Petitioner’s Exhibit 51. The court’s review of the voir dire conducted in this matter is attached as APPENDIX I and incorporated herein as if fully set forth. The extensive analysis of . the voir dire transcript being completed, this court need not belabor the matter at further length. The court finds petitioner’s counsel to have raised the issue of venue, supported the motion for change of venue, and conducted voir dire proceedings and jury selection in an exemplary, professional and competent manner. The court finds no cause to disregard procedural default. At this point, the court will further find that the allegations contained in paragraph 67 and its subparts, and the allegations contained in paragraph 69 regarding change of venue and voir dire transcripts, of the petition for writ of habeas corpus, are not supported by the record and do not support a claim for ineffective assistance of counsel. To the extent the petition is based upon those claims, it is denied. Petitioner has also failed to show prejudice, the second step in the standard for setting aside a procedural default. It is abundantly clear from the voir dire transcript that the general community was not saturated by the media with recountings of the events underlying this matter. Those veniremen and eventual jurors who had read something of or. heard something about the case suggested that their exposure was more or less in passing and without depth. Furthermore, as Judge Haman indicated (Tr. A-366), the articles and news items were not inflammatory and were presented in a straightforward factual manner. Certainly, the extent of media coverage of this case was not so great as to demand change of venue per se. Petitioner’s assertion that the general community was inflamed with an anti-biker animus is unsupported. To the extent, as intimated by Justice Bistline in his dissent in State v. Paradis, 106 Idaho at 133, 676 P.2d 31, that few people have much regard for motorcycle gangs, it certainly is not limited to Kootenai County, Idaho. The majority of the veniremen who were questioned were specifically asked whether they had any problem with the defendant being a member of a motorcycle club, to which they each answered, without exception, that it was not a concern or problem. This is telling evidence against petitioner’s claim of general biker animus in the community. That certain jury members were not specifically asked about their feeling toward bikers does not suggest ineffective counsel, nor may it be assumed that those persons hid such feelings. To assume so would be contrary to the record at hand. The allegation that one juror told a reporter that another juror held a bias against bikers warrants no inquiry and does not materially affect the venue analysis. The same is true with respect to the showing of the movie “Gimme Shelter.” The jury which was seated to render a decision in this case was, as far as the entire record reflects, a fair and impartial jury. The demands of due process are amply met under the circumstances. Judge Haman made the correct decision in viewing the request for change of venue from the standpoint of whether or not an impartial jury could actually be seated. Once voir dire was completed and preemptory challenges exhausted, it is clear from the record that a fair and impartial jury could be and was seated, therefore abrogating any necessity for change of venue. In fact, it does not appear that Brown even found it necessary to renew the motion for change of venue. Subsection F of the petition for writ of habeas corpus entitled “Pretrial Publicity and Change of Venue,” encompassing paragraphs 81 through 88, is unsupported by the record, is procedurally defaulted, cannot be reopened through the cause and prejudice standard, and is denied. The claim that Brown rendered ineffective assistance of counsel in failing to raise the venue issue on appeal fails. Brown commented at the hearing that he felt constrained to raise to the Idaho Supreme Court only those issues that he felt had the most chance of success on appeal. Brown obviously felt the change of venue issue was not supported by the record and, therefore, did not merit appeal. From this court’s review of the record (see APPENDIX I), Brown was correct. Brown neither rendered deficient assistance nor prejudiced his client by failing to raise the issue of venue upon appeal. Since this court has extensively analyzed the venue question in this matter, the court is comfortable in holding that even without the limitations of the cause and prejudice test necessary to disregard the procedural default, upon independent review there is no constitutional violation regarding the venue question in this matter. Further, effective assistance of counsel is clear from the record. To reiterate, the petition for writ of habeas corpus, to the extent it relies upon the allegations in paragraphs 66(b), 67(a) through (e), 69(a) (regarding venue), 69(c), and 81 through 88, is unsupported by the record as outlined above and to that extent the petition is denied. B. Prosecutorial Misconduct Petitioner has alleged that the prosecutor made misleading, inflammatory and prejudicial statements before trial and during his closing argument which deprived petitioner of a fair trial, in violation of the fifth, sixth and fourteenth amendments to the United States Constitution. In conjunction with the allegation, petitioner has al- leged that Brown rendered ineffective assistance of counsel in failing to object to various portions of the prosecutor’s closing summation and in failing to raise the issue on appeal. The Idaho Supreme Court in Paradis v. State, 110 Idaho 584, 716 P.2d 1306 (1986), found that the issue of prosecutorial misconduct had been procedurally defaulted. As with the issue of venue, this court must analyze the issue of prosecutorial misconduct under the cause and prejudice standard set forth in Murray v. Carrier, 477 U.S. at -, 106 S.Ct. at 2650, 91 L.Ed.2d at 414. The asserted cause is ineffective assistance of counsel and the alleged prejudice is denial of a fair trial. Under the Strickland standard, a defendant must show ineffective assistance of counsel by, first, deficient performance and, second, prejudice. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. The errors made in performance must be so serious that counsel was not functioning as “counsel” and petitioner was deprived of a fair trial, a trial whose result is reliable. Id. at 686, 104 S.Ct. at 2063-64. With respect to the failure to object to the prosecutor’s statements before and during trial, only those statements which could render the defendant’s trial fundamentally unfair, so as to deny due process, which were not objected to, could raise the specter of ineffective assistance of counsel. See Darden v. Wainwright, 477 U.S. 187, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). The Darden Court stated that the relevant question is whether the prosecutor’s comments so infected the trial with unfairness as to make the resulting conviction a denial of due process. Id. 477 U.S. at-, 106 S.Ct. at 2472, 91 L.Ed.2d at 157. The standard closely parallels the ineffective assistance of counsel standard in that there must be some reasonable probability that the result of the trial would have been different but for the errors. Id. at -, 106 S.Ct. at 2473-74, 91 L.Ed.2d at 159. In United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the Court stated: Nevertheless, a criminal conviction is not to be lightly overturned on the basis of a prosecutor’s comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor’s conduct affected the fairness of the trial. Id. at 11, 105 S.Ct. at 1044. The Young Court reviewed the doctrine of invited response. In his opening statement, defense counsel characterized the defendant as having been a Bible College student and having attended church on Sundays. Tr. E-485. In closing summation, the prosecutor stated that there was no evidence that defendant was a church-going person; that if he had been a Bible College student, he had failed to read Chapter 20 of Exodus, which states that thou shalt not kill, commit adultery or bear false witness. These things, the prosecutor said, had been shown at trial. Tr. F-683-84. Of course, the entire trial was to show that defendant had killed another human being. With respect to any charge of adultery, defendant’s witness Aera Beaver stated that the defendant had spent the night with her. Tr. E-536-38. As to bearing false witness, the court is unaware of evidence in the record which would support the assertion. Petitioner also complains about the prosecutor’s question to the jury about when the last time was they “picked up a broad” and frolicked all night with her. Tr. F-684. This is, obviously, the prosecutor’s characterization of Aera Beaver’s testimony. Tr. E-536-38. As noted, these statements were in reference to statements made by the defense counsel in opening remarks as to the gentle nature of the defendant. The prosecutor’s remarks are his characterization of the evidence, which he has every right to do although the general tenor appears somewhat excessive. Furthermore, during opening instructions, the court explained to the jury: While it is the duty and right of counsel to address you and explain and elucidate the testimony to better enable you to understand the question which you are to decide, yet, if counsel or any or either of them, inadvertently misstate the evidence, you are to follow the evidence and not the statements of counsel in arriving at your verdict. Tr. B-14. Next, the petitioner takes exception to the prosecutor’s remarks regarding the credibility of defendant’s witness, Aera Beaver. The prosecutor characterized Beaver’s testimony as a baldfaced lie. Tr. F-688. The prosecutor went overboard in stating that while Beaver characterized herself as a professional mother, the prosecutor would never use the term “mother” to describe her, though she may be a professional of some sort or another. Tr. F-686. The prosecutor’s attack on Beaver was unfounded, but in the context of his full discussion regarding Beaver’s testimony, its import was miniscule. The prosecutor stated that Beaver took cues from the defendant while on the stand. Tr. F-686. Whether she did so or not does not appear in the record and the jury certainly had the full opportunity to view such conduct, if in fact it happened. The prosecutor stated that perhaps he had been a little bit harsh on Aera Beaver, but that she had lied from the witness stand. Tr. F-687-88. Thereafter, to the prosecutor’s credit, he told the jury that they were the sole judges of the credibility of the witnesses and that they should, in essence, conduct their own evaluation of the witness through the witness’s demeanor, interest in the case, reasonableness, and corroboration. Tr. F-688. Just prior to that statement, the prosecutor had reviewed certain evidence tending to discredit Beaver. Tr. F-687. The prosecutor’s statements regarding Beaver, while somewhat impassioned, appear neither improper nor prejudicial. Next, petitioner states that the prosecutor made personal attacks upon defense counsel. Such practice was condemned in United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). However, this court can find no real evidence from the record that the prosecutor attempted to insult or demean the defense counsel before the jury. The prosecutor did characterize the defense as “a smokescreen” (Tr. F-689), but such characterization is not improper. The prosecutor, in reviewing certain medical evidence, commented that Palmer had been placed in a body bag and transported on her back to the site of the autopsy. Tr. F-703. The officers that transported the bodies did not, as far as this court can discern, directly testify as to whether or not the bodies were transported on their backs. The prosecutor posed to Dr. Brady the hypothetical question in which he asked whether redistribution of water in the lungs would occur if the water had been aspirated and the body were removed and transported on its back for a period of several hours. Tr. F-651. On cross-examination, Brown asked Brady about the redistribution of liquid in the lungs if a person were lying on her back. Tr. F-654-55. The issue was certainly discussed, although no direct evidence was presented regarding whether the bodies were transported on their backs. Even if the prosecutor’s statement could be characterized as a misstatement of the evidence, the court’s preliminary instruction quoted above directs the jury to make their own findings. The same is true with respect to the prosecutor’s statement to the effect that there was no evidence to connect Palmer’s death to Spokane. Tr. F-706. Furthermore, that statement was made after a lengthy review of the evidence which the prosecutor sought to highlight. Tr. F-704-06. In his closing statement, Brown told the jury that he believed them when they answered individual questions on voir dire regarding their duties as jurors in this case. Brown asked the jurors to live up to their oath. Tr. F-715-16. Brown stated that the jury should have a clear conscience when it was discharged and the jurors went home and went to bed. Tr. F-714-15. In closing rebuttal, the prosecutor stated: Yes, when you go home tonight, when you go home tonight, you should go home with a feeling of having done your duty, and you should also go home knowing that there is law enforcement in your community to protect you. You have a right to that. Our Constitution forbids retrial of a person for the crime that he has already been tried for. There is no other jury, no other place, no other time that can do your job now. There is no other person that can do your job now. The President of the United States can’t do your job now. It is now your responsibility, ladies and gentlemen, I ask you to come back into court with a verdict of guilty of murder in the first degree. Thank you. Tr. F-718-19. Petitioner argues that the inference from the above-quoted comment made by the prosecutor is that if the jury believed the petitioner was guilty of murdering Palmer, but in Washington and not Idaho, he could not be retried in Washington for the crime if they acquitted him. Petitioner’s assertion assumes that the jury would engage in misconduct and disregard the instructions of the court. As noted in the Appendix, the jurors indicated on voir dire that they would respect the instructions of the court. Judge Haman, in outlining the elements of the crime which must be proved beyond a reasonable doubt, indicated that the second element was “that the acts occurred in Kootenai County, State of Idaho.” Tr. F-679. It is clear from the reading of the transcript of the trial that the jury was quite well aware that one of the major issues was the place of the death of Kimberly Palmer. See e.g. Tr. E-488, Tr. F-707, Tr. F-696. Even if the prosecutor’s statement that no other jury could try the matter anew was incorrect, barring double jeopardy, the court can find no inference of prejudice or materiality. The court finds that petitioner’s assertion that the prosecutor, through the statement regarding his place in the chain of justice, does not express a personal opinion nor place his personal integrity behind the State’s case. Tr. F-718. As reviewed through the question of venue and voir dire, statements made by the prosecutor prior to trial which were reported in the press have neither been shown to have been read by any members of the jury, nor any more substantial than the number of other articles found in the newspapers in the area. The fact that the prosecutor was an official in his particular church and that jurors were members of the same faith is irrelevant to any issue raised in this case, especially when viewed through the voir dire transcript. The statements made by the prosecution in reference to the Currier murder will be discussed below. It should be noted that Brown was certainly aware that he had the right to object to the prosecutor’s closing statement if it reached the bounds of impropriety, as the prosecutor objected to Brown’s opening statement. Tr. E-486, 489. As the court has outlined above, while certain comments made by the prosecutor were overzealous, there was no impropriety of constitutional dimensions and no demonstration of prejudice. Brown cannot be said to have rendered ineffective assistance of counsel in failing to object to statements which did not reach the level of prejudicial impropriety. Brown elected to not object to the prosecutor’s remarks and thereby highlight those very same remarks. The court finds no rendering of ineffective assistance of counsel regarding the failure to object to statements made prior to and during trial by the prosecutor and also no prejudice attends the prosecutor’s remarks nor the failure to object to those remarks. Petitioner’s claims regarding prosecutorial misconduct have been procedurally defaulted; there is no cause and prejudice for which to set aside that default and, upon independent review, the court finds no constitutional violation, namely, denial of a fair trial under the due process clause attendant the actions of the prosecutor. The claims raised in subheading E, entitled “Inflammatory Statements by the Prosecutor” under paragraphs 71 through 80 in the petition for writ of habeas corpus, will be denied as a basis for the writ. The allegation of ineffective assistance of counsel found at paragraph 68(f) is unfounded and is also denied as a basis for the writ. Finally, the court in Murray stated that even the cause and prejudice test regarding procedural default could be outweighed by the showing that a constitutional violation has probably resulted in the conviction of one who is actually innocent. Murray v. Carrier, 477 U.S. at -, 106 S.Ct. at 2650, 91 L.Ed.2d at 413. This court finds no such violation of the Constitution or the concept’ of fundamental fairness which would lead to setting aside the procedural default or granting the writ upon independent review. To the extent the statements in this section represent findings of fact or conclusions of law, they shall be deemed such. III. FINDINGS OF FACT 1. On June 25, 1980, a criminal complaint was filed against Donald M. Paradis for the crime of murder in the first degree. Tr. A-5. On the same day a probable cause hearing was conducted (Tr. A-l) and Paradis ordered held to answer for the charge contained in the criminal complaint. Bail was denied. Tr. A-13. 2. Preliminary hearings were conducted on December 8, 9, 10 and 12, 1980, in the then-consolidated cases against Paradis and Thomas Henry Gibson. The court reviewed the evidence accumulated at that time, which omitted any medical evidence other than the cause of death and had no difficulty in concluding that it was more probable than not that Kimberly Palmer was murdered in Kootenai County, Idaho. Tr. A-129-35. The court noted the difference in cause of death and circumstances regarding the disposal of the bodies which suggested to the court that Currier had died in Spokane and Palmer had died in Idaho. Tr. A-134-35. 3. On December 30, 1980, an Information against Donald Paradis for the murder of Kimberly Palmer was filed in the state district court. Tr. A-137-38. After some disqualifications, the matter was assigned to the Honorable Gary M. Haman on January 22, 1981. Tr. A-144. 4. Paradis had been found indigent on November 25, 1980, and proceeded with appointed counsel. 5. Paradis was arraigned on February 3, 1981, at which time the court also denied Paradis’s motion to dismiss for lack of speedy trial. Tr. A-158-61. 6. The court conducted hearings on February 24, 1981 (Tr. A-171), April 14, 1981 (Tr. A-179), April 24,1981 (Tr. A-184), and April 29, 1981 (Tr. A-188). Motion to withdraw as counsel was filed by Frederick G. Loats on April 17, 1981 (Tr. A-181), which was granted (Tr. A-185) and William V. Brown appointed to represent Paradis. Tr. A-187. 7. After conducting hearings on motions to dismiss brought by Gibson and Paradis on May 18, 1981, Judge Haman entered an order denying defendants’ motion to dismiss. The motion had been brought on the grounds that the evidence adduced at their consolidated preliminary hearings was insufficient to sustain the order holding them to answer to the charge set forth in their respective complaints. Tr. A-200-20. Judge Haman engaged in an extensive analysis of all of the evidence relating to the scene where the bodies were found, Paradis’s home in Spokane, and the activities of the individuals in Post Falls, Idaho, on June 21, 1980. Again, the only medical evidence specifically reviewed was the cause of death of Currier and Palmer. Tr. A-210. Judge Haman concluded that it was reasonable that the killing of Palmer occurred in Kootenai County, Idaho (Tr. A-216), and that Paradis and Gibson were likely to have committed the offense charged. Tr. A-220. 8. An initial motion to sever the trials of Gibson and Paradis was denied by the court. Tr. A-263. Motion for special prosecutor and to disqualify the office of the Prosecuting Attorney was denied. Tr. A-281. 9. On June 15, 1981, the consolidated trial of Paradis and Gibson began with jury selection. Tr. A-284. After jury selection was completed, on June 22, 1981, the court granted Paradis’s motion to sever. The Gibson trial proceeded and the Paradis trial was vacated and reset to commence November 30, 1981. Tr. A-290. 10. The trial in this matter began on November 30, 1981, with selection of the jury and was concluded upon jury verdict December 10, 1981. Tr. A-372-389. 11. On December 21, 1981, defendant filed a motion for new trial. Tr. A-397. A hearing on the motion for new trial was conducted on February 24 and the morning of February 25, 1982. The hearing on aggravating and mitigating circumstances was conducted in the afternoon of February 25, 1982. Tr. A-422-32. Defendant’s motion for judgment of acquittal and motion for new trial were denied by the court on March 24, 1982. Tr. A-464. 12. On April 2, 1982, the court entered its findings in considering the death penalty under Idaho Code § 19-2515 and concluded that the death penalty should be imposed. Tr. A-473-90. Judgment and sentence were pronounced on April 7, 1982. Tr. A-494. 13. Appeal was taken to the Idaho Supreme Court. Tr. A-497. The Idaho Supreme Court rendered its decision on the appeal, affirming the district court in State v. Paradis, 106 Idaho 117, 676 P.2d 31 (1983), rehr’g denied February 14, 1984. Justice Bakes wrote the decision for the majority with Justice Bistline filing a dissenting opinion in which Justice Huntley concurred. 14. A petition for post-conviction relief was filed on behalf of Paradis on April 13, 1984. Tr. H-14. An amended petition for post-conviction relief was filed on October 2, 1984. Tr. H-59. After hearings were conducted, District Judge Dar J. Cogswell entered a memorandum decision and order granting the State’s motion for summary judgment in the post-conviction petition brought by Gibson and the petition brought by Paradis. Tr. H-110-54. Notice of appeal was filed January 17, 1985. Tr. H-169. The Idaho Supreme Court affirmed the district court in Paradis v. State, 110 Idaho 534, 716 P.2d 1306 (1986), rehr’g denied April 30, 1986. Justice Bistline wrote the opinion for the court with Justice Bakes concurring in the result. Failure to Preserve and Disclose Exculpatory Evidence 15. On Sunday morning, June 22, 1980, between 4:30 and 5:00 a.m., appellant’s residence in Spokane, Washington, was reported to be on fire. Tr. B-95-96. The residence was located at South 24 Dearborn in Spokane, Washington. Tr. B-115. Investigator Skaggs entered the residence and, while in the basement, found a rolled-up piece of rug. Tr. B-119. Reddish-colored water was flowing from within the rug. Tr. C-145. Inside the rug was found a blue lawn dart, a marijuana leaf belt buckle, a toilet plunger, a string, and a pair of panties. Tr. C-145. Pieces of blue terrycloth were also found in the rug. Tr. C-153-55. The basement where the rug was located was used as a laundry/cleaning room and a clothesline hung across the room above the rug. Tr. C-151. 16. A piece of terrycloth found in the rug was matched with terrycloth used to tie the end of the sleeping bag in which Currier’s body was found. Tr. D-383. The lawn dart which was found was said to have matched the puncture wounds in the back of Currier. Tr. D-430. The marijuana leaf belt buckle was identified as being Currier’s. Tr. B-45. The petitioner has claimed in this proceeding that the string or cord found in the rug may have been linked to the ligature mark found on the neck of Palmer and that the Panties may have been Palmer’s as she was found without panties. Petitioner alleges that the cord and panties found in the rug may have linked Palmer’s murder to Spokane. Petitioner’s Memorandum in Support of Motion for an Evidentiary Hearing and Outlining Law Applicable to Issues to be Raised at Evidentiary Hearing, filed March 6, 1987, at 35. These articles have never been linked to Palmer as have the items which were mentioned above that were linked to Currier. ■ Palmer’s mother testified that Palmer usually did not wear panties when wearing blue jeans. Tr. B-50. Palmer was found without panties, but was wearing jeans. Tr. D-334. The room where the panties were found was a laundry room. Tr. C-144. Testimony indicated that Palmer was wearing a very strong necklace, strung with waxed dental floss, at the time of her death. Tr. B-466-67. Testimony from the State’s pathologist, Dr. Brady, indicated that the necklace could well have caused the ligature mark. Tr. D-446. 17. Brown testified to this court that he had made a general request pursuant to Rule 16 of the Idaho Rules of Criminal Procedure, but did not make a specific request for the panties or the cord. Brown testified that he was aware that the panties and cord had been found in the rug and had seen photographs of such. The photographs of the panties and cord were admitted at the hearing before this court as Exhibits 8A and 42. Furthermore, as noted above, the finding of the cord and panties was referenced at trial. Tr. C-145. 18. The testimony before this court indicated that the items had been in the sole custody and control of officials from Spokane for their use in the earlier trial for the death of Currier in Seattle, Washington. Testimony from Kootenai County officials was that requests for the panties and cord were made, but that they were never located. If these items were lost, they were lost by Spokane County officials. There has been no showing that officials from Kootenai County had possession of, lost, destroyed or suppressed these items, or acted in bad faith. 19. The petitioner appears to have expanded his claim regarding lost, destroyed or nondisclosed evidence to certain colored pictures of the Palmer autopsy. Brown testified to this court that he was not aware of and had never seen the color slides or photographs of the Palmer autopsy. He testified that they would or may have affected his approach to the trial of the matter. On May 6, 1987, Brown filed with this court an affidavit correcting his testimony. Brown’s affidavit states that he had exhibits made from such color slides and photographs prior to trial and that, recollection being refreshed, he had seen the color photographs and had them premarked as defendant’s exhibits. By affidavit dated June 9, 1987, Brown states that he is not sure which of the color photographs he had marked for exhibits and does not fully recollect which pictures he had viewed. Testimony before this court was that every effort was made to respond to Brown’s discovery request, including the production of such pictures. The pictures were neither lost, destroyed, suppressed or undisclosed to petitioner and his counsel prior to trial. Medical Evidence 20. The medical evidence presented at trial came through Dr. William J. Brady (Tr. D-407-68, Tr. F-623-57) and Dr. Charles P. Larson (Tr. E-558-608). Further medical evidence found in the record is the testimony of Dr. Glenn C. Faith in support of a motion for new trial. Tr. G-87-115. In support of Paradis’s petition for post-conviction relief, the affidavit of Dr. Glenn C. Faith was filed on December 2, 1984. Tr. H-106. Also, the affidavit of Dr. Elliot M. Gross was filed on January 7, 1985. Tr. H-160. The medical evidence presented to this court consists of the testimony of Dr. William J. Brady, Dr. Frank A. Roberts, and Dr. George R. Lindholm. The testimony of these individuals at the hearing conducted by this court has been transcribed and filed with the court. Finally, certain exhibits submitted to this court, marked and admitted, bear on the medical evidence in this matter. 21. The medical evidence presented in this case is relevant to petitioner’s claims regarding failure to preserve the body of Palmer as evidence, the opinions of Dr. Brady are invalid and/or inadmissible as not being based upon scientific evidence reasonably relied upon by experts in the field (Fed.R.Evid. 703), sufficiency of the evidence, jurisdiction and ineffective assistance of counsel. 22. Dr. Brady conducted autopsies on the bodies of Currier and Palmer on June 23, 1980, in Portland, Oregon. Tr. D-418. Brady is a very well-qualified expert in the field of forensic pathology. Tr. D-407-13, Tr. E-592; Testimony of William J. Brady, M.D., April 14, 1987, at 64-68. Sometime after conducting the autopsy, Brady dictated and had transcribed an autopsy report. Plaintiff’s Exh. 36. Brady concluded that the cause of Palmer’s death was asphyxiation by strangulation. Id. Each expert involved with this case has agreed that the cause of death was manual strangulation. Larson, Tr. E-592; Faith, Tr. H-106, Tr. G-101; Gross, Tr. H-161; Testimony of Frank A. Roberts, M.D., April 7-8, 1987, at 134-35 (combination ligature and manual strangulation); Testimony of George R. Lindholm, M.D., April 15, 1987 (in all material respects agreed with Brady). 23. Manual strangulation was the cause of death of Kimberly Palmer. Only Dr. Roberts places much significance on ligature strangling as bearing directly on the cause of death. Transcript Testimony of Frank A. Roberts, M.D., filed June 3, 1987, at 134-36. There is no supportable allegation that the autopsy and subsequent report is deficient in terms of those findings made suggesting strangulation. Brady’s anatomic diagnosis regarding neck injuries is complete, suggests careful analysis, and is well documented. Plaintiff’s Exh. 36. 24. Defendant’s expert at trial, Dr. Larson, testified that as to the ligature mark, he may have made incisions at various places to determine how deep the blood was, but that, in any event, Palmer died of manual strangulation. Tr. E-592. The autopsy describes the ligature marks as to direction, size and position. Plaintiffs Exh. 36. The autopsy is supplemented, necessarily and properly, with photographs. Plaintiff’s Exhs. 53A-F1. Dr. Roberts used these photographs in his analysis of the ligature mark. Transcript Testimony of Frank A. Roberts, M.D., filed June 3, 1987, at 117. Dr. Roberts was able to further analyze the mark as to dimension through the photographs. Id. at 119. Dr. Roberts was of the opinion that Palmer’s necklace did not cause the mark. Id. Brady described the ligature mark at trial and stated that Palmer’s necklace reasonably could have caused the mark. Tr. D-446. He testified accordingly before this court. Transcript Testimony of William J. Brady, M.D., filed June 3, 1987, at 37. Dr. Lindholm was confident enough that he stated before this court that his opinion “with reasonable medical certainty” was that the marks on the neck were caused by the necklace. Transcript Testimony of George Richard Lindholm, M.D., filed June 3, 1987, at 29. From the testimony presented to this court and the record as a whole, it appears to this court that the ligature mark, relative to cause of death and place of death, deserves little weight. It does appear that the necklace is the most likely ligature under the circumstances. Whether the cord found rolled up in the rug in Spokane may be related to the ligature mark is purely conjectural. The cord cannot be said to have exculpatory qualities. In fact, Thomas Gibson has stated that he used a “wire” around Palmer’s neck. Plaintiff’s Exh. 5 at 5. The cord depicted in plaintiff’s Exhibit 42 cannot be said to be a wire. There appears no basis to challenge the sufficiency of Brady’s autopsy, opinions or conclusions based upon the ligature marks. 25. An issue in this case at trial was the time of death of Kimberly Palmer. Dr. Brady’s autopsy report indicated that some early postmortem changes, decomposition, had begun with respect to Palmer. Plaintiff’s Exh. 36. Brady noted in the autopsy report of Scott Currier that decomposition had begun. Plaintiff’s Exh. 35. Brady testified at trial that Palmer’s body was clearly not as decomposed as Currier’s. Tr. D-432. Dr. Larson testified that an individual who was killed and placed in a sleeping bag would decompose more rapidly than someone placed in a stream at some point after death. Tr. E-596. When asked about the relative decomposition of the two bodies, Dr. Brady indicated that it was his opinion that Currier had been dead a number of hours longer than Palmer. Tr. D-452. Brady took into consideration the fact that Currier was found in a sleeping bag and Palmer in a stream and stated that it did not significantly change his opinion. Tr. D-454. Dr. Larson testified that the difference in temperature between the sleeping bag and the stream would affect the rate of decomposition. Tr.E-596. Dr. Faith agreed with Dr. Larson. Tr. H-108. Dr. Roberts agreed that Currier was more decomposed (Transcript Testimony of Frank A. Roberts, M.D., filed June 3, 1987, at 59), that temperature played a large part in the rate of decomposition (Id. at 42), and could not offer an opinion as to which individual died first. Id. at 59-60. Dr. Brady testified before this court that Currier had decomposed more, and because of the factors, the decomposition process was more rapid in Currier. Transcript Testimony of William J. Brady, M.D., filed June 3, 1987, at 12. Dr. Lindholm also noted the factors involved and stated that the most commonsense interpretation is that the bodies expired at two different times. Transcript Testimony of George R. Lindholm, M.D., filed June 3, 1987, at 27. Clearly, under the circumstances of this case, decomposition as a tool for determining time of death is imprecise. There appears no dispute that it is inconclusive. Obviously, the circumstances of this case lead different, equally qualified, experts to different conclusions. Most importantly, the jury was presented with the conflicting interpretations and allowed to decide for themselves. 26. Another issue in this case which relates to determining the time of death is the absence of a potassium level analysis from a vitreous humor test by Dr. Brady. Dr. Brady did not conduct vitreous humor tests on either Currier or Palmer. Plaintiffs Exhs. 35, 36. Petitioner has alleged that the lack of a vitreous humor test evidences an incomplete and inadequate autopsy. Dr. Larson testified at trial that a vitreous humor test is one of the few for telling when a person dies and is accurate within two or three hours up to twenty-four to forty-eight hours after death. Tr. E.-590-91. Dr. Brady discussed at some length the aspects of the vitreous humor test and stated that the test could not have been performed on Currier because his eyes were badly injured and filled with blood which would not allow samples from Palmer to be compared. Tr. F-641-46. Dr. Faith has opined that the autopsy was incomplete because of the lack of a vitreous humor test. Tr. H-107. Dr. Roberts testified before this court that the vitreous humor test had been used over the years and been considered the standard in the medical community to help one determine the postmortem interval. Transcript Testimony of Frank A. Roberts, M.D., filed June 3, 1987, at 46. Dr. Roberts analyzed the description of the hemorrhages around the eyes noted in Brady’s autopsy report and stated that it did not appear that the sample would be blood-contaminated. Id. at 47-48. Upon cross-examination, Roberts stated, “[w]ell, recently, I’m not sure that we place a lot of validity on this test. The reason I brought it up is that this autopsy was done in 1980 and at that time it was considered to be standard. Now I think there are more questions about its validity.” Id. at 178. Roberts testified that there was at least a plus or minus four-hour variation in the test and when trying to determine which of two people died within a six-hour period of time, the test would be worthless. Id. at 180. Dr. Brady testified before this court that the samples were not taken because of the damage to Palmer’s eyes (see plaintiff’s Exh. 36), there could be no valid comparison to Currier’s eyes since they were so badly injured, and that the plus or minus four-hour variation rendered it unhelpful in this case. Dr. Brady did testify that the drawing of such a vitreous humor test was an accepted standard in 1980 and is still used today, but not in every case. Transcript Testimony of William J. Brady, M.D., filed June 3, 1987, at 71-75. Dr. Lindholm testified that he more often than not did not draw vitreous potassium as a part of the autopsy procedure. Transcript Testimony of George R. Lindholm, M.D., filed June 3, 1987, at 32. As with decomposition, the vitreous humor test, to determine relative time of death, is imprecise. Moreover, under the circumstances of this case, the results would be of little use in determining which individual died, first, assuming a non-contaminated sample could be drawn. The failure of Dr. Brady to perform a test has been somewhat discredited and randomly employed, especially under the circumstances of this case, cannot be a basis for attacking the completeness of the autopsy or the medical evidence upon which Brady based his opinions. The absence of vitreous humor testing was placed before the jury. 27. In his autopsy report, Dr. Brady notes a tear on Palmer’s external genitalia. “The labia majora on the left has a one and a half [inch] long tear with no evident vital reaction.” Plaintiffs Exh. 36. Brown testified to this court that he elected not to discuss the tear on the labia because he did not want to raise the specter of sex or sexual abuse. However, Larson brought up the subject at trial. Larson stated that the injury to the external labia appeared to be a wound produced after death and gave his opinion, or rather speculated, that the tear was induced upon the dead body of Palmer as it was passed over the barbwire fence a