Full opinion text
OPINION AND ORDER BERTELSMAN, District Judge. Petitioner, Paul Kordenbrock, received the death penalty after he was convicted of murder by a jury in a Kentucky trial court. His appeal was affirmed by the Kentucky Supreme Court. The case is now before this court for habeas corpus review. 28 U.S.C. § 2254. The background facts of this case were ably presented by the Kentucky Supreme Court in Kordenbrock v. Commonwealth, 700 S.W.2d 384 (Ky.1985). The Court there stated as follows: “The crimes were committed in a Western Auto Store owned by William Thompson. Two days prior to the incident, Kordenbrock and a friend, Michael Kruse, entered the store, browsed around, and looked at wood-cutting tools. Thompson observed them and became suspicious of their actions. The next day Kordenbrock and Kruse again visited the store, looked at guns in a glass display case, and purchased a small hatchet. Kordenbrock asked Thompson to show one of the guns in the case. Thompson again became suspicious of their motives for visiting the store. Thompson was alone in the store on both visits. “On the day of the murder, Kordenbrock, armed with a pistol, and Kruse entered the store about 9:30 a.m. Pointing the gun, Kordenbrock ordered Thompson and his employee, Allen, to the rear of the store and ordered them to lie face down. Kordenbrock stood over them. A customer entered the store, and Kruse answered a query about repair of chain saws. The customer left. Thompson heard glass break in the store, then heard a shot, and felt a searing sensation on the back of his head. He then heard a second shot. Allen was dead from the gunshot wound. Thompson survived. “Kordenbrock and Kruse divided the stolen guns after leaving the store. About 10:00 a.m., they arrived at the residence of a friend, Gary Ramell. Kordenbrock sold Ramell two of the guns. Ramell testified Kordenbrock appeared mellow, and nothing seemed to be unusual. “Next, the pair arrived at the home of Richard Fehler. Kordenbrock sold Fehler two guns. Fehler testified that the pair seemed jittery and that Kordenbrock took Quaaludes. “The following day Kordenbrock drove to a cousin’s house, and a Larry Hensley arrived and negotiated with Kordenbrock over the purchase of the guns. “In the meantime, Ramell had seen a news story about the murder and robbery. When Kordenbrock returned from his cousin’s, Ramell questioned him about where the guns came from; he had noticed they were in a Western Auto box. Ramell, Fehler, and Hensley cooperated with the police and testified at the trial. “Hensley loaned the police his truck after he arranged to meet Kordenbrock to pay for the guns he had purchased. Kordenbrock was arrested at 10:10 p.m., and after interrogation, made a full confession. “Thompson testified at trial and identified Kordenbrock. Kordenbrock testified at trial and offered testimony that he was intoxicated and on drugs and did not intend to shoot or kill either of the men. After a finding of guilt, the same jury heard testimony in the penalty phase of the trial and recommended the death penalty.” Id. at 385-86. Kordenbrock now seeks a writ of habeas corpus from this court claiming twenty-three assertions of error. Further facts as appropriate will be set forth in connection with the discussion of the various issues. ISSUE I — Was petitioner improperly deprived of a court appointed defense psychiatrist? At first glance, the facts relevant to the issue concerning appointment of the psychiatrist in this case seemed confused. However, a final evidentiary hearing clarified the circumstances and the issue is not as difficult to resolve as it first appeared. Briefly this is what happened. Early on, counsel for the defense in this case determined that there was no possibility of an insanity defense or of claiming that Kordenbrock was incompetent to stand trial. Counsel hoped, however, to be able to raise a defense of diminished responsibility based on Kordenbrock’s habitual use of drugs. Also, counsel wanted to secure the evaluation of a psychiatrist for possible use in mitigation. Therefore, counsel moved the state trial court for appointment of a defense psychiatrist. The court granted the motion pursuant to KRS 31.110(1). The defense arranged for Dr. Nizny to act as psychiatrist and had Kordenbrock evaluated by him. Based on the evidentiary hearing and the testimony of Dr. Nizny, the court finds that his preliminary report to defense counsel was unfavorable in that it had to include the fact that defendant had committed another murder the night before he committed the one in question and also that he had an “anti-social personality,” that is, he had no regard for the rights of his fellow man or woman. Also, Dr. Nizny concluded and reported that it could not be said that rehabilitation was probable. For these reasons, it was apparent that the testimony of Dr. Nizny would not be helpful to Kordenbrock’s case. However, able defense counsel saw an ingenious way to turn this dilemma to Kordenbrock’s advantage. At that time, there was an ongoing dispute between Boone County and the Commonwealth of Kentucky as to who would pay for experts required by statute to be appointed to assist indigent criminal defendants. Counsel knew from previous cases that the Boone County Fiscal Court would initially refuse to pay Dr. Nizny. Therefore, counsel accurately represented to the court that Dr. Nizny would not file a report and testify unless some public agency would acknowledge that it was responsible for payment for his services. Counsel secured orders from the Boone Circuit Court requiring payment but made no meaningful efforts to enforce them. The court finds that this was a deliberate defense tactic to create an appealable issue, and that the testimony of Dr. Nizny was not really desired by or useful to the defense. The court finds that no competent defense counsel would have called Dr. Nizny to testify and calling him to testify might have constituted ineffective assistance of counsel. This finding is based on the testimony of Dr. Nizny himself. As part of that testimony, he drew up and filed a report on his evaluation of Kordenbrock just prior to the evidentiary hearing in this court. This report would not have been helpful to Kordenbrock. Further, Dr. Nizny testified that he never insisted on advance payment or partial payment, but only wanted some official assurance of payment. Further, Dr. Nizny testified that he would have honored a subpoena from the state court even though served on him in Ohio. This service was not accomplished although it could easily have been. Further, defense counsel did not take the obvious step of bringing the matter to a head by moving to hold one or more county officials in contempt or levying on a county bank account, which would then have allowed the county to appeal and secure a ruling from a higher state court. The court has had the opportunity to observe defense counsel in this and other cases and he is far too capable to overlook these obvious steps, if the testimony of the psychiatrist had really been desired. Therefore, the court finds that failure to obtain the psychiatrist was a deliberate defense tactic. When Dr. Nizny refused to cooperate, the trial court ordered Kordenbrock evaluated by a neutral psychiatrist at a state facility. Although Kordenbrock was transferred to the state facility, on the advice of counsel he refused to cooperate with the psychiatrists there by not giving them an adequate history. The court finds that this was also a deliberate strategy by able defense counsel because he knew from Dr. Nizny’s preliminary report, which any competent counsel would have secured before requesting a written report, that psychiatric testimony would probably not be of help to Kordenbrock. The court finds that, had Kordenbrock cooperated with the doctors at the state facility, testimony could have been obtained from them in both the guilt and penalty phases, but that the testimony would have been neutral and would probably have included an opinion that it was unlikely that Kordenbrock would in the future refrain from criminal dangerous behavior if he was ever released. The court finds that the testimony could have been obtained in spite of the formal policy of the Department to provide psychiatric evaluations solely on competency and insanity by the device of subpoenaing the doctors from the facility to testify to their opinions on these subjects. However, defense counsel quite properly determined that a neutral evaluation would not help his client’s case and, therefore, as a deliberate defense strategy advised his client not to cooperate. All of this was entirely proper and indeed required of an able defense attorney, but the defense cannot have it both ways. It cannot turn down a neutral psychiatric evaluation and then claim an error that it was deprived of such evaluation. In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 1097, 84 L.Ed.2d 53 (1985), the Supreme Court of the United States discussed the circumstances when an indigent defendant in a capital case is entitled to a court-appointed psychiatrist. The holding of Ake is that he is entitled to such assistance. The narrow holding of Ake is that a defendant in a capital case is entitled to be evaluated by a court appointed neutral psychiatrist, if his sanity is in issue or if the state introduces psychiatric testimony in the penalty phase. Neither of these situations prevails here. The language of Ake is somewhat broader than this, however, and the Ake holding has been expanded by some of the lower courts. Thus, it has been implied that Ake, when read "together with Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 2637 n. 1, 86 L.Ed.2d 231 (1985), requires the appointment of a defense expert whenever one is reasonably required by an indigent defendant and specifically requested by his counsel. See Moore v. Kemp, 809 F.2d 702 (11th Cir.1987) (dicta); Messer v. Kemp, 831 F.2d 946 (11th Cir.1987) (dicta, but dissenting opinion would so hold); Clark v. Dugger, 834 F.2d 1561 (11th Cir.1987); Little v. Armontrout, 835 F.2d 1240 (8th Cir.1987) (hypnosis expert). But see Clark v. Dugger, 834 F.2d 1561 (11th Cir.1987) (Ake limited to insanity issue). However, in the light of this court’s factual findings, detailed above, concerning the defense tactics with regard to the psychiatrist issue in this case, it appears that none of these cases are applicable. Also, such findings make it clear that if any error occurred, it was harmless beyond a reasonable doubt. Thus, it is unnecessary for this court to resolve the conflicting interpretations of the law exemplified by the above authorities. Also, all that petitioner would have been entitled to in any event was evaluation by a neutral psychiatrist. He was offered this by the court but waived the opportunity to be evaluated on the advice of counsel, as discussed above. The court further finds that petitioner secured adequate expert assistance on the guilt phase from the psychopharmacologist who did testify. Therefore, there is no merit to the petitioner’s contention with regard to the trial court’s failure to appoint a psychiatrist. ISSUE II — Whether the petitioner had his constitutional rights violated because the prosecutor repeatedly stated the jury’s determination concerning the death penalty was a “recommendation” to the trial judge. During voir dire of the jury members, the prosecutor stated that their function, if they found the petitioner guilty of intentional murder, could involve “recommending” the death penalty to the trial judge. The prosecutor also used the word “recommend” in his opening and closing arguments. The trial court judge also used the word “recommend” during the penalty phase instructions. Petitioner asserts that such use of the word “recommend” was reversible error under Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). The Commonwealth, on the other hand, contends that there was no reversible error because such language did not mislead the jury into thinking its “awesome responsibility” rested elsewhere. In Caldwell, the state prosecutor made statements to the jury members indicating that their decision as to whether or not to give the death penalty was automatically reviewable by the appellate court. The Supreme Court in Caldwell concluded “that it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere.” 105 S.Ct. at 2639. After careful study of the transcripts, this court concludes that this situation is different from the one presented in Caldwell. In Caldwell, the state prosecutor sought to, and in fact did, minimize the jury’s sense of importance in its role. 105 S.Ct. at 2637, 2639. Here, Kentucky law states that the function of the jury in a death penalty case is to “recommend a sentence for the defendant.” The prosecutor merely reiterated this point. The ultimate question is not whether the prosecutor used the word “recommendation,” but rather whether the prosecutor “diverged] from the minds of the jurors their true responsibility____” Ward v. Commonwealth, 695 S.W.2d 404, 408 (Ky.1985). Furthermore, “use of the word ‘recommend’ is not incorrect as long as the context in which it is used does not mislead the jury as to its role in the process or its responsibility in exercising its sentencing function.” Matthews v. Commonwealth, 709 S.W.2d 414, 421 (Ky.1986). The Kentucky Supreme Court in this case concluded that the “word ‘recommend’ was used, but not to such an extent as to denigrate the responsibility of the jury in imposing a death penalty.” Kordenbrock v. Commonwealth, 700 S.W.2d 384, 389 (Ky.1985). Clearly no error occurred in the prosecutor’s opening and closing or during the instructions because the word “recommendation” was used to enable the jury to better visualize its statutory role. On other occasions the prosecutor used the word “recommendation” at the bench and out of the hearing of the jury so no harm occurred whatsoever. The prosecutor also used the word “recommendation” on several occasions during voir dire of the individual jurors. The prosecutor stated that, if the petitioner were found guilty, the jury could make a recommendation of death, and although the judge would not be bound by such recommendation he would give it great weight. See, e.g., Trial Transcript of the Evidence (hereinafter T.E.), Vol. XIX 2825 and Vol. XVII 2425. However, these statements do not present a situation similar to Caldwell or Ward where the jury was left with the impression that its “awesome responsibility” rested elsewhere. Consequently, the petitioner did not have his constitutional rights violated because the prosecutor and the trial judge merely reiterated the proper procedure involved under Kentucky law and the petitioner has failed to show that the jury was induced to disregard its responsibility. The Supreme Court of the United States has itself used the word “recommendation” to describe the role of the jury in the Kentucky procedure. Buchanan v. Kentucky, — U.S.-, 107 S.Ct. 2906, 2912 n. 15, 97 L.Ed.2d 336 (1987). Therefore, this court is in agreement with the Kentucky Supreme Court that use of the word “recommendation” in this instance was not error. ISSUES III AND IV — Whether admission of petitioner’s confession constitutes reversible error. Following his arrest and interrogation on January 6, 1980, Kordenbrock confessed to the robbery of the Western Auto store in Florence, Kentucky, and to the shooting of the two store clerks in the course of the robbery (Allen and Thompson). Allen was killed but Thompson survived as an eye witness. On April 29, 1981, Kordenbrock filed a motion and memorandum asking the Boone County Circuit Court to suppress his confession, contending that he had attempted on three occasions during the police interrogation to cut off questioning but that it had continued in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). Following an evidentiary hearing on Kordenbrock’s motion, the trial judge refused to suppress the confession, finding inter alia, that Kordenbrock had not been under the influence of drugs or alcohol at the time and that he had demonstrated a willingness to confess. In its opening statement at trial, the Commonwealth informed the jury that Kordenbrock had been interrogated and that he had confessed to the robbery/murder. Immediately thereafter, Kordenbrock personally gave an opening statement in wliich he admitted his participation in the robbery and his shooting of the two store clerks explaining that he had been “all messed up” from liquor and quaaludes he had ingested during the previous night and on the morning of the robbery. He further stated that he did not know why he had shot the clerk but now deeply regretted his act. He did not testify again at trial. Immediately prior to the trial, petitioner’s counsel had stated for the record: “[Pjursuant to your overruling our pretrial motions, our position has been limited and we ... are ... still maintaining the incorrectness of your rulings on our pretrial motions and the position we have taken today in no way is a waiver of those positions we had taken prior to this trial actually commencing.” T.E. Vol. XXVI 3764-65. Petitioner’s opening statement in its entirety was as follows: “By Mr. Kordenbrock “Good morning, ladies and gentlemen, Once again, I would like to introduce myself. My name is Paul Kordenbrock. Please let me thank you for your patience and attention during this jury selection. I am pretty nervous being up here so if I make a mistake, please forgive me in correcting myself. In fact, I wrote this down and am reading it because I am nervous and don’t want to forget anything. “I would like to show you what the evidence will show happened on January 5, 1980. The evidence will show that I woke up that morning around 8:15. While getting dressed I was feeling pretty hungover from a party the night before. I immediately ate a 714, which is a street name for a Qualude [sic]. We arose so early that morning because Karen’s Mom was coming over to help her clean the apartment and Mike and Karen weren’t getting along at the present time so we decided to leave before her mother arrived. After getting dressed I entered the kitchen where the girls were having their morning coffee and discussing what their day consisted of. I reached for a beer and Mike joined me. We all agreed it was a good party we had attended the night before. “While talking to Mike, Mike and myself decided to finish off the six pack in the refrigerator and head for Kentucky to look up Richard Fehler and try to wheel and deal with him concerning this cassette tape deck he mentioned he might want to sell. Reaching for another beer I grabbed all four of them and asked Mike if he felt like shotgunning them. After the first one I reached into my pocket and pulled out a bottle of 714s, which are street names for Qualudes [sic]. I gave Mike one' and took one myself and then I asked the girls if they wanted one. Two of them excepted [sic]. Then we shotgunned the remaining beers and said we would see the girls later. “While crossing the 1-75 bridge we decided to grab a sandwich and we got off at the 5th Street exit, stopped and both ate a Ham and Cheese sandwich. I asked Mike if he thought his friend would trade some 714’s for some pot I had. Mike said that we needed some gas and could ask him while filling up at the Workingman’s gas station up here on this exit. While filling the tank we also bought ten Qualudes [sic]. We both ate two and headed out. While buying an ax the prior Thursday we saw a couple of Cole Python Pistols. We were purchasing the ax to split fire wood at my camp on Eagle Creek. After pulling out Mike said, ‘let’s go get the guns, we can sell them and get some more drugs.’ After parking the car I reached under the seat and grabbed a gun. When we entered the store I approached Mr. Thompson and asked him to go to the back. When we got to where Mr. Allen was I told them to lie down and then a customer came in and I told Mike to get rid of him. I was standing there all messed up from the night before and what I had already consumed that morning. At that time I heard the crashing of glass and I am not sure what caused my next movements, but I shot both men. Then I ran to the front of the store and Mike had the guns and we left. I never intended to shoot anybody. It just happened. I ran around the next day and a half trying to sell the guns. I got arrested the next Sunday night and told them I did it and it is something that I have been living with for the past eighteen months and twenty-six days. I don’t.know how to put it in words how I feel. “Thank you.” T.E. Vol. XXVI 3760-63. In his closing argument on the guilt phase, petitioner’s counsel stated: “There can be no doubt in your minds that Paul robbed the Western Auto Store. There can be no doubt in your mind that Paul shot Bill Thompson. There can be no doubt in your mind that Paul killed Stanley Allen, cause that is what the evidence has been. Paul pled guilty to the robbery and he told the Judge that he was guilty of that. And Paul, when he was arrested on Sunday evening confessed to the people who arrested him and he told them that he did it. And a few days ago Paul sat in this chair and told you what the evidence would be. And he told you that the evidence would be that he robbed the Western Auto Store, that he shot Bill Thompson, and that he killed Stanley Allen. He has never denied doing that. T.E. Vol. XXX 4429. He He He He H< He “And it is your job to fit the facts of this case into which instruction, because there is no doubt that the acts were committed by Paul. The question is, how will you punish him?” T.E. Vol. XXX 4432. After the jury returned the guilty verdict, petitioner’s counsel and witnesses several times referred to petitioner’s willingness to confess as a mitigating factor. For example, Mr. Monohan said in argument out of the hearing of the jury: “This is a mitigating factor. Because his position all along has been that he will plead guilty and admit guilt to murder if sentence is life imprisonment. This jury has a right to know that he has not intended otherwise, and they have a right to factor that into their determination.” T.E. Vol. XXXI 4648. And petitioner’s witness, Reverend Feamster, stated: “Yes, bibically, [sic] of course, confession is a crucial part in our own process of redemption and Paul has confessed to God, to me, and to others and to his family what he has done and he is sorry for that. He would like to have a chance to try to make up for that and to try and develop his life in a way — and that is what we talk about bibically [sic] when we speak of redemption.” T.E. Vol. 4684. The issues presented to the court with regard to the admissibility of petitioner’s confession are: (1) Was the confession the result of unconstitutional coercion on the part of the police? (2) Was the confession obtained in violation of the Miranda procedures? (3) If Miranda procedures were violated, was the admission of the confession harmless error? (4) Alternatively, did petitioner waive any such violation by using the confession affirmatively in his opening statement and as a mitigating factor in the sentencing phase of the murder trial? 1.Coercion Whether or not petitioner’s confession was a product of coercion is an issue of fact. The state courts found that it was not. This court has made its own independent review of the record, including a careful reading of the entire transcript of the interview which terminated in the confession. At no time was petitioner’s will overborne, he was cogent and vigorous throughout the interview. He negotiated and bargained with the police regarding protecting certain female friends of his who might be implicated. Therefore, the court holds that the confession was not obtained by coercion. For cases providing general standards for determining coercion, see e.g., Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961); United States v. Murphy, 763 F.2d 202 (6th Cir.1985); United States v. Brown, 557 F.2d 541 (6th Cir.1977). 2. Miranda. Based on the court’s careful study of the transcript, however, the court can only conclude that the confession was obtained in violation of petitioner’s rights under the doctrine of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and its progeny. This conclusion is based on the fact that several times during the interview petitioner asked that it be stopped and resumed the next day. He repeated several times, “I can’t tell you no more tonight,” or words to that effect. One of the officers admitted in his testimony before this court that the interrogators interpreted this as a desire on the part of the petitioner to quit, but they pressed on, because they wanted to get the matter wrapped up that night. Of course, part of the Miranda panoply of rights is the right to have an in-custody interview terminated for any reason. This right was not respected by the police here. Although petitioner made many damaging statements prior to his first request for an adjournment of the interview, it was his final written statement given at the conclusion of it that was admitted at the trial. Martin v. Wainwright, 770 F.2d 918 (11th Cir.1985) (modified on other grounds, 781 F.2d 185 (11th Cir.1986)), is directly in point on this issue and reference is made to that opinion for further discussion of the precedents involved. The court holds further, however, that the admission of this statement was harmless error or, in the alternative, that any error was waived by petitioner. 3. Harmless Error. As has been stated, petitioner delivered his own opening statement at the trial at which time he reiterated his confession to having been one of the robbers of the store and to being the one who shot the two clerks. In the opening statement he denied knowing why he had shot the two men. This was part of a strategy to lay the basis for an argument to be made later by his attorneys that he lacked the intent to commit murder because he was under the influence of drugs. It was also part of the defense strategy to appeal to the sympathy of the jury by having petitioner express his regret for his acts in the opening statement. This strategy was further pursued by his able counsel by having petitioner plead guilty to the robbery later in the proceedings, and by arguing during the penalty phase after conviction that petitioner had resolved to mend his ways and reform his life, as evidenced in part by his forthright confession. Obviously, the reiteration of the confession in the opening statement was completely voluntary and made only after petitioner was fully advised of his rights by his own trial counsel. Indeed, no claim is made to the contrary. Petitioner argues, however, that his affirmative use of his confession in his attempt to play upon the sympathies of the jury does not constitute a waiver of the Miranda violation discussed above or render it harmless error. The court holds, however, that the decision of the Supreme Court of the United States in Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), is fatal to this position. In Elstad, the Court held that where, as here, a first confession had been the result of a Miranda violation but was followed by a second valid confession, the second confession was admissible. The Supreme Court in Elstad rejected the same arguments made by the petitioner here, namely, that the second confession was tainted because it was “the fruit of the poisonous tree” or resulted from having “let the cat out of the bag.” The Court held that these doctrines applied only to confessions which resulted from prior COERCED confessions. Here, of course, the issue is not whether the second confession made in open court was admissible. Since making it was an essential part of the defense strategy, it would have been improper to have excluded it. The issue here is whether the admission of the first confession was harmless error in light of petitioner’s deliberate, fully counselled, affirmative use of his confession at trial. Directly on point is the case relied on by petitioner to establish the Miranda violation in the first place: Martin v. Wainwright, supra, 770 F.2d at 932. There, the court held that the admission of a prior confession obtained in violation of the Miranda rule was harmless error in the light of the admission of a second, properly obtained confession and other evidence. The rationale of the court is highly pertinent to the matter under discussion: “G. Harmless Error “To summarize, the July 4 confession, although voluntary, was obtained in violation of Miranda and hence inadmissible. Under Elstad, however, neither the July 4 Miranda violation nor the fact that Martin had ‘let the cat out of the bag’ rendered the July 11 confession inadmissible. Rather, the July 11 confession, having been obtained without coercion and in full compliance with both Miranda and the Sixth Amendment right to counsel, properly was admitted at trial. We now must determine whether Martin is entitled to reversal of his murder conviction, or whether the erroneous admission of the July 4 confession was “harmless error” under the test set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). “After reviewing the entire record, we are convinced beyond a reasonable doubt that the erroneous admission of Martin’s July 4 confession could not have contributed to his murder conviction. The most important factor in our decision is that the July 4 confession was merely cumulative of the evidence contained in the July 11 confession. In fact, the July 11 confession included a far more detailed description of the murder than did the July 4 confession. “Moreover, in addition to the July 11 confession, the jury had before it the testimony of Martin’s accomplice, Gary Forbes, who gave a lengthy account of the robbery, kidnapping, and sexual battery of Patricia Greenfield, and who told the jury how Martin, armed with a knife, led the blindfolded young woman down a dirt road at the Lantana Dump and returned fifteen or twenty minutes later, saying that he had killed Greenfield by stabbing her in the throat. Finally, the jury was presented with the unrebutted testimony of a state pathologist, who examined Greenfield’s body and found the cause of her death to be the multiple stab wounds in the throat.” Id. at 932-33. It has been stated recently that “[wjhere a subsequent confession is obtained constitutionally, the admission of prior inadmissible confessions may constitute harmless error.” United States v. Johnson, 816 F.2d 918, 923 (3d Cir.1987) (citing Bryant v. Vose, 785 F.2d 364 (1st Cir.1986) United States v. Packer, 730 F.2d 1151 (8th Cir.1984). Here, as in the cases cited, the original confession was merely cumulative of the in-court statement by petitioner, the effect of which was enhanced by his plea of guilty to the robbery of which the jury was advised with his consent. T.E. Vol. XXX 4429. Also on point is Burks v. Perini, No. 85-3507 (6th Cir. Nov. 25, 1986) (Westlaw) [810 F.2d 199 (table) ], an unpublished decision of the United States Court of Appeals for the Sixth Circuit. In that decision the admission of a confession improperly obtained under Miranda was held to be harmless error where there was a second proper confession, the defendant took the stand and testified ineffectively to self defense, and there was other strong evidence of his guilt. Id. The general rule was well stated in People v. Auilar, 59 Ill.2d 95, 319 N.E.2d 514 (1974): “Though courts have not been unanimous in their reasoning, it generally has been held that if a defendant takes the witness stand and admits in substance matters contained in a confession or statement he has given the police, this testimony will be considered to have waived or made harmless any error that may have occurred in the admission of the confession or statement.” In determining whether there was harmless error in the admission of inadmissible evidence, the court looks “to the record for independent evidence of guilt, including in court admissions by ... [defendant] himself.” Smith v. Estelle, 519 F.2d 1267, 1271 (5th Cir.1975). Cf. Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); United States v. Hamilton, 689 F.2d 1262, 1274 (6th Cir.1982); Sweeney v. United States, 408 F.2d 121 (9th Cir.1969); Rock v. Zimmerman, 543 F.Supp. 179 (M.D.Pa.1982). See generally cases cited in 31 West’s Federal Practice Digest 3d Criminal Law 337-39 (Key No. 1169.3). Petitioner relies on Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968). There three improperly obtained confessions were introduced at defendant’s murder trial. In an attempt to avoid the effect of these confessions defendant took the stand and admitted to being present at the scene of the shooting but claimed it was an accident. After conviction and appeal, the decision was reversed by reason of admission of the improperly obtained confessions. On the second trial, the defendant did not take the stand, but the prosecution introduced a portion of his testimony from the previous trial. The Court held on appeal from the second conviction that defendant’s testimony at the former trial was inadmissible at the second trial because it was the fruit of the illegally procured confession. It is doubtful whether the Supreme Court would decide Harrison the same way today. Its rationale is inconsistent with that of Elstad, supra, although the Elstad opinion does make an oblique reference to Harrison. 105 S.Ct. at 1297. Indeed, one respected district judge has held that Elstad implicitly overruled Harrison. United States ex rel. Perri v. Director, D.O.C. State of Ill., No. 83 C 1439 (N.D.Ill. Sept. 16, 1985) (Westlaw [1985 WL 2591]) (Nordberg, J.). The court finds Judge Nordberg’s reasoning to be fully applicable here. In Pern, both the Illinois state courts on appeal and Judge Nordberg held that a defendant who voluntarily takes the stand and reiterates a previous confession, as did the petitioner here, voluntarily waived any Miranda defects in the first confession, or rendered its admission harmless error. The Seventh Circuit affirmed the denial of habeas relief on other grounds. Perri v. Director, Dept. of Corrections of Illinois, 817 F.2d 448 (7th Cir.1987). This court holds that Harrison, if it retains any viability, is limited to its facts. In any event, Harrison is not applicable here. In Harrison, the defendant took the stand in order to give a version of the facts at variance with his confession; that is, to attempt to avoid its effect as an admission of culpability. Here, petitioner made his statement in open court completely adopting his confession and attempting to use it to his advantage to curry favor with the jury for his forthrightness. His spirit of cooperation and contrition was emphasized over and over. He made affirmative use of the confession rather than lying to talk his way around it. The strategy was pursued further in the sentencing phase. The court holds on the basis of its careful review of the entire transcript of the trial that this was a deliberate defense strategy. The court finds that this strategy was petitioner’s only hope to avoid conviction of murder and the death sentence and would have been pursued even if the original confession had been suppressed. Thus, this case is identical in this respect with the decision of the Sixth Circuit in Burks, supra, where the court held: “... the government’s use of Burks’ involuntary statement did not induce him to testify on his own behalf and ... the trial court’s decision to admit his confession, although erroneous under the circumstances, constituted harmless error.” Burks, No. 85-3507 (6th Cir. Nov. 25, 1986) (Westlaw) [810 F.2d 199 (table)]. Cf. Oregon v. Elstad, 105 S.Ct. at 1297, where the Court makes clear that Harrison must be limited to those situations where the admission of an improperly obtained confession induces defendant to testify in rebuttal. Here the motivation of petitioner’s making a statement in open court was his desire to use the confession in mitigation. Other evidence against petitioner, including the testimony of his accomplice, was overwhelming. Therefore, the court holds that the admission of the confession was harmless error beyond a reasonable doubt. 4- Waiver. Further, the court holds alternatively that there was a deliberate waiver of any Miranda violation. The petitioner went far beyond a mere attempt to explain away the original confession. Rather, as has been stated, he made affirmative use of it to elicit the jury’s sympathy in the hope that it would not find him guilty of murder. Petitioner emphasized the voluntariness again in the penalty phase as evidence of his contrition and firm purpose of amendment. Even though this is a death penalty case, surely petitioner cannot be permitted to attack the confession in chambers while invoking it in his defense before the jury. Even in a death penalty case, a litigant should not be permitted such a flamboyant pursuit of inconsistent positions. This court holds that such efforts constitute a deliberate and knowing waiver of any infirmity in the original confession. Cf. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) (guilty plea); United States v. Higuchi, 437 F.2d 835, 837 (9th Cir.1971); People v. Auilar, 59 Ill.2d 95, 319 N.E.2d 514 (1974). The state cases relied on by petitioner, see e.g., Hawthorne v. State, Fla.App., 377 So.2d 780 (1979), Hall v. State, 255 Ind. 606, 266 N.E.2d 16 (1971), Ware v. State, Fla.App., 307 So.2d 255 (1975), People v. Freeman, 668 P.2d 1371 (Colo.1983), are distinguishable because of petitioner’s affirmative use of the confession. The state cases involved endeavors to negate the effects of confessions such as attempts to explain away possession of property, evidence of which had been obtained by wrongful searches. ISSUE V — Was the destruction of evidence constitutional error? Petitioner’s fifth contention of error is that he was denied his Fifth, Sixth, Eighth, and Fourteenth Amendment rights when law enforcement officers intentionally erased a taped recording of his interrogation. Petitioner asserts that the tapes were erased intentionally and that such action precludes him from making a Fifth Amendment attack on the written confession introduced against him. Petitioner admitted that the transcript made from the recording was accurate. Yet, he asserts that the inflections and tone of the interrogations are forever lost and thus fact precludes him from making a meaningful attack on the written confession introduced against him. Furthermore, the absence of the tapes, argues petitioner, undermines that “greater degree of reliability” which is required during both the finding of guilt and the assessing of punishment in a capital case. Petitioner’s fifth contention of error is without merit. First, Kentucky law mandates that law enforcement officials retain evidence such as tape recordings of confessions only when requested by defense counsel. Before such request is made, a police department has the right to do as it wishes with such evidence, although the Kentucky Supreme Court strongly urges the retention of such evidence. Hendley v. Commonwealth, 573 S.W.2d 662, 667 (Ky.1978). In the case at hand, the recording of the confession was erased before defense counsel’s request. Second, the destruction of the tape does not prevent the petitioner from forming a meaningful defense against the crime charged as is constitutionally guaranteed. See Crane v. Kentucky, 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986); California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). Petitioner’s reliance on Crane, supra, in support of his argument that he could not present a meaningful defense without the tape recording of the confession is unfounded. In Crane, the defendant was prevented from introducing any evidence regarding the circumstances surrounding his confession after a pretrial ruling declared such confession to be voluntary. Crane, 106 S.Ct. at 2144. The Crane Court held that the exclusion of this evidence denied the defendant a fair trial because evidence about the circumstances surrounding the taking of a confession are relevant to its reliability. In contrast, the petitioner in the case at hand had the opportunity to challenge the confession before the jury. T.E. Vol. XXVII 3975-3981 and Vol. XXIX 4314-4322. Furthermore, petitioner himself testified that the transcript of the interrogation was accurate. T.E. Vol. XXV 3557, 3587-88. Furthermore, as to the State’s duty to preserve evidence, the United States Supreme Court noted in California v. Trombetta: “[T]hat duty must be limited to evidence that might play a significant role in the suspect’s defense. To meet this standard of constitutional materiality, ... evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” 467 U.S. 479, 488-89, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413 (1984) (citations omitted). See also, Elmore v. Foltz, 768 F.2d 773 (6th Cir.1985) (destruction of tapes of conversations between state prisoner and informant did not violate due process). Clearly, the Trombetta test is not met in the case at hand. Petitioner’s confession was transcribed and hence, available in permanent form even though the tape was erased. It is true that the inflections and tones of the confession are irretrievably lost, but the petitioner himself lessens any suspicions concerning the propriety of the interrogation when he testified that the transcript was an accurate reflection of the interrogation. Furthermore, when the police officers erased the tape, it was not evident that the tape would possess any exculpatory value because the confession had been accurately transcribed. Clearly, petitioner’s own admission of the accuracy of the transcript should preclude his raising this particular contention of error. ISSUE VI — Alleged police misconduct concerning photo display and vial of drugs. Petitioner’s sixth contention of error is that he was denied his Sixth, Eighth and Fourteenth Amendment rights as a result of certain actions of law enforcement officers. Petitioner contends that he was deprived of his constitutional rights by two different actions of police. First, petitioner notes that due to improper police conduct, he was not given the opportunity to view and to spread before the jury the photo display that had been shown to the surviving victim between 3:00 and 3:30 a.m. on January 6, 1980, the morning after the murder. The surviving victim was awakened in his hospital bed from a very sedated sleep and was informed by police officers that they wanted him to look at some photos to see if he could identify anyone. The police officers stayed approximately 45 minutes attempting to get Thompson, the surviving victim, to identify petitioner from the photo display. Thompson did not identify petitioner at that time. Thompson did identify the petitioner at a lineup on February 1, 1980. Petitioner contends that the array was set up in such a way as to emphasize the picture of petitioner from the display. The photo array contained six photos, all of these being mug shots except that of petitioner, which was an ordinary snapshot. The police officers destroyed the photo display. Hence, petitioner concludes that he cannot make a meaningful showing that there was a substantial likelihood of irreparable misidentification in this case in that the photo array tainted the lineup identification almost one month later. Petitioner asserts that he was prevented from presenting a meaningful defense to the jury. Second, petitioner contends that he was prevented from presenting a meaningful defense to the charge against him because of the police officers’ failure to retain a vial of drugs that was found in a woman’s possession who was arrested at the same time as petitioner. Petitioner argues that his strongest defense was based on his lack of capacity to understand what he was doing due to the ingestion of drugs. Further, petitioner contends that his will was easily overborn during interrogation due to his ingestion of drugs. Petitioner asserts that the bottle of pills was placed between him and the interrogators during the entire interrogation. Major Stamper, an interrogating officer, admitted this but also stated that he did not know what kind of pills they were, nor did he know what happened to the pills after the interrogation. Major Stamper contends that he was not under the impression that the pills came from petitioner, otherwise they would have been kept and analyzed. Transcript of Evidentiary Hearing (hereinafter T.E.H.) at 29-30 (Oct. 15, 1987). Petitioner argues that without this bottle of pills he had no chance to present the meaningful defense of demonstrating a coerced confession because he was denied the opportunity to have the pills analyzed to show their effect on him. Petitioner’s sixth contention of error is not sufficient grounds to grant his habeas petition. Due process is violated if an identification procedure is so suggestive that it creates a “very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). The determination of whether an identification procedure under the totality of the circumstances is reliable even though suggestive, however, was set out by the United States Supreme Court in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). In Neil, the Court noted that five factors should be considered in evaluating the likelihood of misidentification in confrontation procedures that may be considered suggestive: 1. The opportunity of the witness to view the criminal at the time of the crime; 2. The witness’ degree of attention; 3. The accuracy of the witness’ prior description of the criminal; 4. The level of certainty demonstrated by the witness at the confrontation; 5. The length of time between the crime and the confrontation. Neil, 409 U.S. at 199-200, 93 S.Ct. at 382. See also Thigpen v. Corp. 804 F.2d 893 (6th Cir.1986) (identification procedure so suggestive as to deny due process); Owens v. Foltz, 797 F.2d 294, 295-96 (6th Cir.1986) (identification procedure not so suggestive as to deny due process). In applying these factors to the case at hand, it is clear that although arguably suggestive, the photo array did not result in a “very substantial likelihood of irreparable misidentification.” First, Mr. Thompson testified that he saw petitioner for approximately one minute when petitioner entered the Western Auto Store. T.E. Vol. XXV 3710. Petitioner told Mr. Thompson at that time to “get to the back of the store,” at which time Mr. Thompson hesitated while taking in the situation. Id, at 3711. Although Mr. Thompson’s back was to the petitioner for the rest of the incident, Mr. Thompson testified that he knew petitioner when he was first confronted because petitioner “had been in the store on the Thursday and Friday previous to this Saturday” so Mr. Thompson was “fairly familiar with [petitioner’s] appearance.” Id. at 3713. Petitioner’s prior two visits to the store had each lasted approximately twenty to thirty minutes. Mr. Thompson therefore had a substantial opportunity to observe petitioner. Second, Mr. Thompson demonstrated a good degree of attention. Officer John Baker interviewed Mr. Thompson beginning about 10:30 a.m. after the 9:30 a.m. shooting. Id. at 3672. Although Mr. Thompson was in the hospital at the time being treated for his gunshot wound, Officer Baker was surprised at his alertness and coherence. Id. at 3677-3678. Mr. Thompson’s description of the assailant was direct and Officer Baker felt that Mr. Thompson was “relatively sure.” Id. at 3678. Third, Mr. Thompson’s description was accurate. He told Officer Baker that the assailant looked like Kenny Rogers: light brown hair over his ears, full beard and moustache, and brown eyes. T.E. Vol. XXV 3677. He also assisted in the preparation of a composite later that same day. Id. at 3684 (Suppression Hearing Exhibit: Defense Exhibit No. 12). Fourth, Mr. Thompson demonstrated certainty at the confrontation with petitioner. On February 1, 1984, Mr. Thompson attended a lineup during which there was no indication that any suspect was present. Id. at 3701-02. He first identified co-defendant Mike Kruse out of the six-man lineup and then identified petitioner as the one who did the shooting. Id. at 3644, 3647. Mr. Thompson testified that he was slow to identify petitioner because petitioner was groomed differently and the lighting was poor. Id. at 3705. He told Major Stamper that he hesitated on petitioner because “he wanted to make sure.” Id, at 3648. Fifth, the crime occurred on the morning of January 5, 1980. Mr. Thompson outlined a description and a composite that same day. The lineup occurred on February 1, 1980. The length of time between the crime and the confrontation was sufficiently short to guarantee reliability. Further, the destruction of the photo array did not prevent petitioner from presenting a meaningful defense. In California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 2530, 81 L.Ed.2d 413 (1984), the United States Supreme Court commented upon a State’s duty to preserve evidence where California law enforcement agencies were destroying breath samples of suspected drunk drivers after the results of the breath-analysis test were recorded. The defendants in Trombetta contended that the destruction of the samples prevented them from impeaching the incriminating intoxilyzer results and consequently, the results of these tests were not admissible into evidence. Id. at 482-83, 104 S.Ct. at 2530-31. The United States Supreme Court noted that California’s policy of not preserving breath samples was without constitutional defect. The Court then commented on the extent of a state’s duty to preserve evidence: “[T]hat duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality, ... evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Id. at 488-89, 104 S.Ct. at 2534 (citations omitted). See also Elmore v. Foltz, 768 F.2d 773 (6th Cir.1985) (destruction of tapes of conversations between state prisoner and informant did not violate due process). Likewise, in the case at hand, the officials’ destruction of the photo array is without constitutional error. Petitioner had the opportunity at trial to cross-examine Thompson concerning his viewing of the photo array and his eventual identification of the petitioner from the lineup. Consequently, other means were available to show the impropriety, if any, in the circumstances surrounding the photo display. Certainly, at the time of the photo display where no identification of the perpetrator was made, officials could hardly anticipate that the display would play a role in the suspect’s defense. This is especially true concerning the issue of undue suggestiveness resulting in a “very substantial likelihood of irreparable misidentification.” The Trombetta analysis as applied to the petitioner’s contention of error regarding the preservation of the bottle of pills also operates to crush petitioner’s arguments. First, it was not apparent at the time of the disappearance of the pills that they would play a significant role in petitioner’s defense because the police officers were under no impression that the pills had come from the petitioner: 1.Major Stamper had testified at a suppression hearing that the pills were not taken from the petitioner, but from Abigail Smith. T.E. Vol. XXIII 3392-93. 2. Petitioner denied this, and a hearing was held to determine the pills’ origin. T.E. Vol. XXIV 3552. 3. Major Stamper again testified that only a buck knife and petitioner’s driver’s license were taken from Kordenbrock at the time of the arrest. T.E.H. at 23 (Oct. 15, 1987). 4. Petitioner testified that he bought some quaaludes at a gas station right before the offense in question and again the next day from Joey Reinhart and that petitioner took four or five of the pills before being arrested. T.E.H. at 138, 141-43 (Sept. 23, 1987). 5. Joey Reinhart denied seeing petitioner on the Sunday petitioner claims to have bought the pills. T.E.H. at 15 (Oct. 15, 1987). Consequently, it was not apparent to the officials that the pills belonging to Ms. Smith would be relevant to the defense of petitioner and hence, no effort was made to preserve them. Major Stamper testified that if he knew the drugs were relevant to petitioner they would have been kept and analyzed. Id. at 29-30. Furthermore, petitioner was able to present a meaningful defense without the presence of the drugs and was able to present comparable evidence as to their effect on him if he had in fact ingested them. See Crane v. Kentucky, 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986); California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). Petitioner presented testimony of a Dr. Nelson at trial who testified to the effect of quaaludes on behavior. The expert testified as to all types of quaaludes, especially street quaaludes. T.E. Vol. XXIX 4203-4204. Dr. Nelson’s testimony comprises over 200 pages of the trial transcript and demonstrates that petitioner had ample opportunity to present a defense to this issue although the jury chose to reject such testimony. See Id. at 4199-4311. Further, the court holds that if any errors were committed by the trial court with regard to the matters discussed herein they constituted harmless error or were waived by petitioner’s defense strategy of admitting the shooting, pleading guilty to the robbery and throwing himself on the mercy of the court and jury. Consequently, petitioner’s sixth contention of error is without merit. ISSUE VII — Should the trial judge have granted petitioner’s motion for a change of venue? Petitioner’s seventh contention of error is that he was denied his Sixth, Eighth and Fourteenth Amendment rights when the trial judge denied petitioner’s motion for a change of venue or alternate remedies to a change of venue. Petitioner moved the trial court for a change of venue from Boone County to Mason County or, in the alternative,, for further funds to put on better proof before the court as to why a change of venue was necessary in this case. T.E. Vol. VI 766-900, Vol. VII 901-918. The petitioner put on evidence that many people in Boone County had already formed opinions as to the guilt of petitioner as a result of news accounts, radio broadcasts and television broadcasts. Transcripts of the various forms of publicity were submitted into evidence as well as a public opinion poll survey and affidavits. Judge Neace denied the motions stating that he did not find actual prejudice. T.E. Vol. VII 914. The Judge noted that he would attempt to monitor this issue during voir dire and if it became apparent that there was actual prejudice, he would change the venue at that time. Id. The trial judge noted that a great deal of publicity had occurred in January 1980 and it then being June 1981, he felt that enough time had passed to have neutralized a great deal of the publicity in the case. Id. at 915-16. With the United States Supreme Court case of Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), the case law concerning a criminal defendant’s right to a fair trial in the face of pervasive media coverage began to evolve. In Irvin, intense media publicity concerning the crimes charged infiltrated the rural community immediately before trial. The publicity concerned the defendant’s prior convictions and his confession to twenty-four burglaries and six murders including the murder then at issue. Consequently, eight of the twelve jurors held pretrial opinions that the defendant was guilty and the others went “so far as to say that it would take evidence to overcome their belief” in his guilt. 366 U.S. at 728, 81 S.Ct. at 1645. The Court held that actual prejudice against the petitioner rendered a fair trial impossible. Id. Two years later in Rideau v. Louisiana, the Court noted that prejudice was presumed in that case because the influence of the news media pervaded the proceedings. 373 U.S. 723, 726-27, 83 S.Ct. 1417, 1419-20, 10 L.Ed.2d 663 (1963). There, a twenty minute film of defendant’s confession under police interrogation to a murder charge was broadcast three times in the community where the defendant was to be tried. The Court did not even bother to examine the voir dire to determine the existence of prejudice in this case in that it believed that the trial was but a formality to the real trial that had occurred when the community viewed the confession on camera. 373 U.S. at 726, 83 S.Ct. at 1419. See also Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965) (trial conducted in circus atmosphere where press permitted to sit within bar of the court and overrun it with television equipment); Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966) (trial infected with extreme publicity and carnival-like atmosphere). The Court set out particulars as to what constitutes a panel of fair and impartial jurors in the face of media publicity in Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). The Court noted that a juror need not be totally ignorant of the facts of the case before it. “ ‘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.’ ” Murphy, 421 U.S. at 800, 95 S.Ct. at 2036 (quoting Irvin v. Dowd, 366 U.S. at 723, 81 S.Ct. at 1642-43). If the juror states that such opinion can be put aside, the defendant must demonstrate “the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality.” 421 U.S. at 800, 95 S.Ct. at 2036. Under the standards set out in its opinion, the Court found that the petitioner had not shown that the trial was inherently prejudicial or that the jury selection process permitted “an inference of actual prejudice.” 421 U.S. at 803, 95 S.Ct. at 2038. The Court looked to the totality of the circumstances to determine if the trial was fundamentally fair. The Court considered the lapse in publicity before trial and how that probably eased public opinion. The Court also considered the content of the media reports to determine whether they were merely factual in nature or inflammatory. Id. at 802, 95 S.Ct. at 2037. Another relevant factor considered by the Court was the length to which the trial court must go to select impartial jurors. For example, if most veniremen admit to a disqualifying prejudice, those who claim they can be impartial may be seriously questioned