dissenting.
I dissent. This dissent explains my opposition to the majority opinions in this case as well as in State v. Estes, 111 Idaho 423, 725 P.2d 128 (1986).
On appeal from his second conviction, Mr. Estes contends that he was entitled to a dismissal of the charges against him because he was denied his right to appeal from the first conviction; that he was denied a transcript for use during the second trial; that the second trial placed him in double jeopardy; that he was denied the right to a speedy trial; that the prosecution introduced insufficient evidence to corroborate the prosecutrix’s testimony that Estes was her assailant; that the information was deficient; that the state should have been required to elect as to the act it would rely upon for conviction; and that the prosecutor engaged in misconduct.
In November of 1985, this Court heard oral argument in Estes’ consolidated appeal from the district court’s denial of his petition for post-conviction relief and a motion for a new trial. In support of that appeal, Estes argued that the district court’s decision in support of its denial of his motion for a new trial and petition for post-conviction relief stated facts not supported by the evidence; that trial counsel’s performance was so inadequate as to deny Estes the effective assistance of counsel; that the district court abused its discretion in denying Estes’ request for investigation expenses; and that the district court erred in dismissing certain post-conviction relief issues without first affording Estes an evidentiary hearing.
By this dissent, I address issues raised in both appeals, except for those issues rendered moot by today’s decision. A brief recitation of the facts precedes my analysis.
I.
On May 17, 1979, Julie Ann Somerton, then an eighteen-year-old, was working in Cascade, Idaho, and living in the Cascade *440Hotel. That evening Ms. Somerton went to the Hideaway Bar located in the hotel. In the bar, she met the defendant, Kenneth Estes. Later that evening, after Ms. Somerton had returned to her room, she was raped. At trial, Ms. Somerton identified Kenneth Estes as her assailant.
Evidence consisting of Ms. Somerton’s panties, a washcloth, and a bath mat were seized from her room in the Cascade Hotel and sent to the state laboratory. A “rape kit” and evidence collected from Ms. Somerton’s body were also sent to the State Forensic Laboratory. The evidence sent to the state laboratory established that semen had been found in and on Ms. Somerton and her clothing, as well as on a washcloth she had used; that hair strands taken from Mr. Estes and the victim when compared to hairs found on Ms. Somerton’s clothing revealed that two hairs found on the washcloth, one on her bath mat, and one found in her panties were similar to hair samples taken from the defendant and could have had a common origin.
Mr. Estes testified that he had come to Cascade on May 15, 1979, and had slept in his car that evening. The following night, he stayed with a friend. On the evening of May 17, the friend told him he was going to have a lady friend at his house and therefore he decided to stay elsewhere. Mr. Estes stated that he was at the Hideaway Bar on the evening of May 17 and, there, offered to buy Ms. Somerton a drink, which she declined. Appellant testified that, although the hour was late, he then decided to go to McCall to answer a help wanted advertisement and began driving to McCall in order to get a “head start.” He pulled over to the side of the road near McCall and went to sleep. It was there he was arrested.
II.
For reasons which I explain below, I would reverse the judgment and remand the cause with directions to the trial court to enter an order directing the warden of the state penitentiary to release and discharge appellant. My dissent today is grounded in my belief that on this record appellant has demonstrated that he was denied the right to effective assistance of counsel at trial and the right to a speedy trial.1
I begin by analyzing whether trial counsel furnished effective assistance under the standards articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which standards are set forth fully below, and further, whether counsel’s performance failed to comport with the test adopted by this Court in State v. Tucker, 97 Idaho 4, 539 P.2d 556 (1975) wherein we stated:
It is our opinion that the best enunciation of defense counsel’s obligation is found in United States v. DeCoster, 159 U.S. App.D.C. 326, 487 F.2d 1197, 1202 (1973) —“a defendant is entitled to the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.”
Tucker, 97 Idaho at 8, 539 P.2d at 560.
An accused’s right to representation by counsel is a fundamental component of the American system of criminal justice. United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). The criminal defendant is assured this right through the sixth amendment which provides, in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense.” U.S. Const, amend. VI. The Supreme Court has construed this clause as embodying “effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 770-771, 90 S.Ct. 1441, 1448-1449, 25 L.Ed.2d 763 (1970). Recently, in Strickland v. Washington, supra, the Court held that where there is a claim of ineffective assistance of counsel, an appellant must meet a two part test. The two components of this test are (1) deficient attorney performance and (2) prejudice to the defense caused by the deficient performance. Strickland, *441466 U.S. at 687, 693-95, 104 S.Ct. at 2064, 2067-69. The Strickland court formulated a prejudice standard that requires the appellant to show “there is reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068. The Court defined “reasonable probability” as a “probability sufficient to undermine confidence in the outcome.” Id. Hence, the proper standard for evaluating attorney performance is that of reasonably effective assistance, considering the circumstances of the case. Id. at 687, 104 S.Ct. at 2064. The Court stated that when a convicted defendant alleges ineffective assistance of counsel, the defendant must show that counsel’s performance fell below an objective standard of reasonableness. Id. at 687-88, 104 S.Ct. at 2064-65. The court declined to furnish more specific guidelines, noting that the proper measure of attorney performance is simply reasonableness under prevailing professional norms. Id. at 688, 104 S.Ct. at 2065.
This court has said that defense counsel’s obligation “is ‘to conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to guilt and degree of guilt or penalty.’ ” State v. Larkin, 102 Idaho 231, 233, 628 P.2d 1065, 1067 (1981) (quoting American Bar Association’s “Standards Relating to the Defense Function” § 41 (1971)). Here the record reflects that appellant’s trial counsel interviewed witnesses at the state laboratory three years prior to the time of trial. He also read “some” written reports, including partial transcripts available from the earlier proceeding. He engaged in no pre-trial discovery. He failed to examine the laboratory witnesses’ notes prior to the time of trial. He failed to request the court to appoint an expert to assist him in evaluating the state’s voluminous scientific evidence and to inform him in what ways he might prepare to subject that evidence to meaningful adversarial testing. He failed to investigate the prosecutrix’s background and to inquire whether she might have been engaged in any sexual activity, which activity might have led to facts indicating that someone other than the appellant was her assailant. He failed to object when the prosecutor on at least three separate occasions made remarks which were clearly objectionable. Moreover, he failed to diligently prosecute the appeal from appellant’s first trial.
The district court, in its memorandum decision, stated:
The evidence from Estes’ counsel at the second trial who testified in this proceeding indicated that the victim’s apparently highly credible testimony was the foremost reason why Estes was convicted. Counsel testified he had not talked to her prior to the trial. He also indicated he had made no intensive investigation of the background of Julie Somerton.
In a trial of this kind, the testimony of a prosecuting witness is subject to the same attacks on credibility as would be the testimony of any other witness in any other criminal case. (Citations omitted.) Since the record indicates that Julie Somerton maintains she was forcibly raped, the extent of her immediate prior sexual activity, if any, could have been important to the credibility of the testimony of the prosecuting witness that she was forced.
It is apparent that defense counsel was remiss in not preparing to attack the credibility of Julie Somerton. [Emphasis added.]
It is true, as the district court noted, that there was evidence in the record tending to corroborate Ms. Somerton’s testimony. However, when by trial counsel’s own admission it was Ms. Somerton’s credibility as a witness that convicted Estes, defense counsel’s failure to prepare to challenge her credibility cannot be deemed harmless.
The district court concluded that “not badgering a damsel in distress would certainly be a reasonable strategic decision.” It is, of course, one thing to “badger”; it is another thing to effectively prepare to *442cross-examine; and to in fact effectively cross-examine. I fail to understand how appellant’s trial counsel could have made a “strategic” decision not to cross-examine the prosecutrix as to her background, any other sexual partners she may have had, or any other sexual activity in which she may have engaged during the twenty-four hour period preceding the rape without first investigating her background. A course of action can only be labeled a “strategy” when the strategian first informs himself of the underlying facts. The record reflects that the prosecutrix had a diaphragm and vaginal cream in her hotel room. At a minimum, the presence of these items would suggest that the prosecutrix was sexually active. Clearly, both chaste and unchaste individuals may be raped. However, at a minimum, the presence of these items would suggest to reasonably diligent defense counsel that further inquiry into the prosecutrix’s sexual partner or partners and related activity would be in order.
Clearly, inadequate preparation of trial counsel may constitute ineffective assistance, violating a defendant’s sixth amendment right to representation. Herring v. Estelle, 491 F.2d 125, 129 (5th Cir.1974); State v. Osborne, 35 Wash.App. 751, 669 P.2d 905, 911 (1983). In State v. Radjenovich, 138 Ariz. 270, 674 P.2d 333 (App. 1983), the court held that “[i]t offends basic notions of minimal competence of representation for defense counsel to fail to interview any state witnesses prior to a major felony trial.” Radjenovich, 674 P.2d at 337. Here, defendant’s trial counsel’s only interviewing involved a brief discussion with individuals whose names he cannot now recall, about matters which he cannot now recall at the state laboratory three years prior to trial. As we shall see in the discussion that follows, whatever the extent of the conversation trial counsel had with the state laboratory personnel three years prior to trial, he did not obtain sufficient information to subject the state’s case to meaningful adversarial testing. Any distinction between counsel’s performance in Radjenovich, and counsel’s performance in the case at bar is slim indeed.
Recently, in In Interest of Rushing, 9 Kan.App.2d 541, 684 P.2d 445 (1984), the court stated:
Cronic and Strickland teach presently pertinent lessons. The purpose of the effective assistance of counsel right is to afford to the party a fair trial. One element of a fair trial is subjection of trial evidence to adversarial testing; the trial must be a reliable adversarial testing process. Whether there is “actual ineffectiveness” need not be decided where there is complete denial of counsel or “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” As we see it, it is possible to say that failure to subject the prosecution’s case to meaningful adversarial testing is another way of saying failure to place the prosecution on strict proof.
Rushing, 684 P.2d at 450 (quoting Cronic, 466 U.S. at 659, 104 S.Ct. at 2047). In the case at bar, I cannot conclude that appellant’s trial counsel placed “the prosecution on strict proof.” In this regard, I deem particularly significant the affidavits submitted by the state laboratory analysts, which affidavits were submitted to the district court in support of appellant’s motion for a new trial.
Pamela J. Server’s affidavit read as follows:
PAMELA J. SERVER, being first duly sworn and upon oath, deposes and says:
1. I am a Senior Criminalist, working for the State of Idaho, Department of Health and Welfare, Bureau of Forensic Laboratories, Forensic Section.
2. I was an expert witness for the prosecution in both the first and second criminal trials of Kenneth Estes.
3. I participated in the original workup of the scientific evidence introduced by the State in the two criminal trials of Mr. Estes. I have recently participated in a reexamination of that evidence.
4. In my initial examination of a saliva sample from Mr. Estes, taken before the first criminal trial, I could not detect *443antigenic materials to establish that Mr. Estes can be bloodtyped through secretions. In my recent examination of a new saliva sample from Mr. Estes, the sample being obtained at the State Penitentiary, I could not detect antigenic materials to establish that Mr. Estes can be bloodtyped through secretions.
5. In my most recent testing I also ran what is known as a Lewis bloodtyping test on a whole blood sample taken from Mr. Estes. The Lewis test reflected that Mr. Estes should be able to be bloodtyped through his secretions. The Lewis test was not done prior to the criminal trials of Mr. Estes and seemingly conflicts with my findings as set forth in paragraph 4. I am unable to absolutely explain the conflicting indications and would prefer to consult with Dr. Edward Blake of California in order to possibly resolve the conflict and explain my findings. Otherwise, I would need an actual semen sample from Mr. Estes to establish whether or not Mr. Estes can be bloodtyped through deposits of semen. Mr. Estes’s secretor status has not been conclusively determined at this time.
6. I examined various semen-stained samples from Julie Somerton’s sex crime kit and items found at the scene of the crime. Underpants, a washcloth, a towel, and bib overalls were some of the items of evidence examined which showed semen; however, the concentration of semen currently was insufficient to determine the blood group of the semen donor. My testing did reflect an indication of a weak 0 activity on the washcloth, a weak A activity on the overalls, and a high A activity on the underpants.
7. Neither in my initial examination nor my more recent examination, did I in fact conclude that the semen on the washcloth was deposited by someone of an 0 bloodtype. The reflections of an 0 bloodtype from the washcloth might just as likely have originated from the Ortho-Gynol jelly, bacteria, dirt, detergents, sweat, or other collateral sources, including a mixture of secretions of the victim, or any combination of the preceding. Accordingly, even if Mr. Estes is an O secretor, the evidence from the scene of the crime does not firmly include or exclude Mr. Estes as the depositor of the semen that was examined.
8. The inconclusiveness of my examination was not brought out during the trials of Mr. Estes. Defense counsel did not interview me nor did he ask the appropriate questions of me during cross-examination. I would have freely disclosed or offered the total uncertainty of my findings had I been asked to do so by defense counsel.
9. In summary, my findings do not indicate that the semen bloodtyping results were seminal in origin. I would be speculating should I say otherwise. I cannot associate Mr. Estes to the evidence which has been submitted from the crime scene. [Emphasis added.]
Moreover, my examination of the record reflects that Mr. Estes’ trial counsel did not prepare to cross-examine Ms. Server and, in fact, did not cross-examine Ms. Server so as to bring before the jury the fact that her examination of the scientific evidence was inconclusive.
Ann R. Bradley submitted the following affidavit:
ANN R. BRADLEY, being first duly sworn and upon oath, deposes and says:
1. I am a Senior Criminalist, working for the State of Idaho, Department of Health and Welfare, Bureau of Forensic Laboratories, Forensic Section.
2. I was an expert witness for the prosecution in both the first and second criminal trials of Kenneth Estes.
3. I participated in the original workup of the scientific evidence introduced by the State in the two criminal trials of Mr. Estes. I have since participated in a reexamination of that evidence, concentrating principally on hairs collected from the scene of the crime.
4. Initially, out of over one hundred hairs collected from the scene of the *444crime, I thoroughly examined three hairs which on balance seemed similar to hairs from Mr. Estes. There were both similarities and dissimilarities between the known hairs of Mr. Estes and the three hairs which I examined. One of the hairs I examined came from a washcloth, another from a bathmat, and a third from underpants belonging to the victim.
5. During the second examination I also examined two additional pubic hairs and a blond head hair found in the victim’s underpants which hairs, in my opinion, were similar to the hairs of the victim. I also looked at a brown human hair found on a pillowcase, but did not examine the same as it appeared not to be a head or pubic hair which I could compare with the known hairs of Mr. Estes or the victim.
6. There were over a hundred hairs on the sheet taken from the scene of the crime. Seventy-nine of those hairs appeared to be pubic hairs. I have declined to examine the referenced hairs without a Court order directing that I do so. It appears to me that the hairs had accumulated over a period of time, so that the association of any particular hairs to the assault in question is without value.
1. From the evidence submitted, including those hairs not examined, I cannot say whether or not there were hairs from the scene of the assault which may have originated from persons other than Mr. Estes and the victim. Neither can I say with certainty that the three hairs mentioned in paragraph 4 originated from Mr. Estes or were connected with the crime (as noted in paragraph 6, there were so many hairs in the sheet that the hairs must have accumulated there over time). Another problem is that the known hair samples of Mr. Estes, as submitted to me for comparison, had been cut and were missing the roots. It is preferred that hairs submitted as known samples include their roots for purposes of accurate comparison. Accordingly, a comparison using the preferred type of hair samples could not be made between hairs from the scene of the crime and the known hairs of Mr. Estes.
Also, I was not aware of whether the washcloth, bathmat, and underpants had been laundered elsewhere (although there is an indication in the victim’s testimony that she did her laundry at a “friend’s” house), so that hairs similar to those of Mr. Estes might have originated from an outside source. Other persons undoubtedly have hairs similar to those of Mr. Estes.
During my initial examination I was also not made aware that the victim did not put on her underpants following the attack. I did not then note whether or not the pubic hair from the underpants was so deeply encrusted as to indicate the hair’s presence in the underpants pri- or to the crime. There was a very substantial thickness of encrustation in the underpants. In any event I now question whether the hair from the underpants, and thus possibly the hairs from the washcloth and bathmat, which hairs appeared “similar” to those of Mr. Estes, originated from the assailant.
8. During the second examination I attempted to locate the hairs collected from the towel. I could not locate the same after reviewing the Court exhibits and contacting the Casecade [sic] Police Department. I cannot now perform any testing or comparison to ascertain whether these hairs may have originated from someone other than the victim, it having been previously established that the hairs did not originate from Mr. Estes.
9. Scientific testing of hairs involves matters within the examiner’s judgment. In my judgment, for the reasons previously stated, the hairs which I examined cannot with certainty be said to have originated from Mr. Estes. I would have fully disclosed the lack of evidentiary value of the three “similar” pubic hairs to defense counsel had he interviewed me in that respect or had *445he asked, the appropriate questions on cross-examination. Similarly I feel that additional testing of other hairs collected at the scene of the crime would also be of no value. I have accordingly declined to perform such testing unless ordered to do so by the Court.
10. The three “similar” pubic hairs may very well not be those of Mr. Estes or even those of the victim’s assailant. To say otherwise would be conjecture. [Emphasis added.]
In a supplemental affidavit Ms. Bradley further stated:
ANN R. BRADLEY, being first duly sworn and upon oath, deposes and says:
1. This Affidavit is supplemental to my Affidavit dated November 7th, 1984.
I wish to clearly state the reasons why I have declined examination of hairs which were collected from the victim’s bedsheet.
2. My reasons for declining further examination of hairs are as follows:
A. The examination would be extremely time consuming given the number of hairs collected.
B. A thorough pubic hair combing will routinely produce fewer than twelve sample hairs. The number of collected hairs from the scene of the alleged crime reflects that the hairs had accumulated over a longer time period than the one to one and one-half hours involved in the alleged attack. I am aware of no evidence that the large number of pubic hairs can be accounted for because of hairs being pulled out either by the victim or by the assailant.
C. Approximately one-half of the seventy-nine pubic hairs which I have mounted and visually examined appear much darker in color than those of the victim. The sheer number of pubic hairs, both from the victim and the depositor of the darker hairs, again reflects that many, if not all, of the hairs were deposited sometime prior to the alleged attack; once more assuming that pubic hairs were not pulled from the victim and the depositor of the darker hairs.
D.In light of the reasons previously stated, I do not believe that further examination of hairs in my possession will have any value in these proceedings. It is impossible to associate any particular hairs to the assailant, whoever that person may have been.
At trial, Ms. Bradley had testified that the state’s exhibit represented “the known hairs of Kenneth Estes taken from the pubic pulled hair envelope of his sex crime kit.” She testified that in conducting hair comparisons she would examine “the character of the root” and that she had done so in appellant’s case. In her lab notes, she referred to pubic hairs pulled from appellant. However, appellant’s known hairs had been cut and not pulled. The roots of appellant’s known hairs were not then compared to the similar hairs found at the scene of the crime. Examination of the root is important in hair comparisons for different reasons, including a need to compare the cortical fusi as to size, shape and distribution. Defendant’s trial counsel did not know whether the exemplar hairs had been pulled or cut and, hence, could not effectively cross-examine Ms. Bradley as to her testimony.
Appellant’s trial counsel also failed to object to three significant statements made by the prosecution during closing argument. Clearly, there is authority for the proposition that where a prosecutor engages in misconduct and defense counsel fails to object, the error may not be raised on appeal. State v. Sharp, 101 Idaho 498, 503, 616 P.2d 1034, 1039 (1980); State v. Spencer, 74 Idaho 173, 183, 258 P.2d 1147, 1154 (1953). The only exception to this general rule is that prosecutorial error may be reviewed where the error is fundamental. See State v. Haggard, 94 Idaho 249, 253, 486 P.2d 260, 264 (1971). Here, defense counsel failed to object. Therefore, ordinarily we would not review the prosecutor’s conduct. In the context of this analysis, however, our inquiry should be whether appellant received effective representation and part of our review should necessarily involve a discussion of whether *446the appellant’s trial counsel failed to object where a reasonably competent attorney would have objected and, in so failing, permitted the prosecutor to improperly persuade the jury.
It is axiomatic that in closing argument, counsel should confine themselves to matters within the record or fairly deducible therefrom. State v. Smith, 114 Ariz. 415, 561 P.2d 739, 743 (1977); State v. Bradford, 219 Kan. 336, 548 P.2d 812, 816 (1976); State v. Rose, 62 Wash.2d 309, 382 P.2d 513, 515 (1963).
At trial, the prosecutor stated that Ms. Somerton wiped herself off with a washcloth, which washcloth contained “pubic hair of herself and of the defendant on that washcloth along with seminal fluid.” This was a serious misstatement of the evidence. In fact, the evidence adduced at trial established only that a hair “similar to” defendant’s pubic hair was found on the washcloth. If, as the prosecutor stated, the pubic hair found on the washcloth belonged to the defendant, there would seem to be no room for reasonable doubt that the defendant had been the assailant. If, on the other hand, one considers that the evidence established only that the pubic hair found on the washcloth was “similar to” defendant’s pubic hair, there may well have been room for reasonable doubt.
The district court stated:
The prosecutor stated in closing that pubic hair “of the defendant” was found on a wash-cloth used by Ms. Somerton following her rape. This was a misstatement of the evidence presented at trial. Bradley’s testimony was that one of two pubic hairs found on the wash-cloth was microscopically similar to Estes’[s] pubic hairs. [Citations omitted.]
While it was improper for the prosecution to make such statement, this error cannot be viewed as anything but harmless error____ On cross-examination it was clearly brought out that while Bradley could state that certain pubic hairs which she tested were similar to those of Estes, she could not positively identify any of those hairs as those of Estes or anybody else. [Citations omitted.] In light of [the] effective cross-examination of Bradley, the Court is convinced beyond a reasonable doubt that the above-said misstatement by the prosecutor did not mislead the jury and did not contribute to Estes’[s] conviction.
As explained above, the record reflects that Estes’ trial counsel did not adequately prepare to cross-examine Ms. Bradley as to the hair samples and did not, in fact, adequately cross-examine her as to the probative value of the hair samples. Moreover, I cannot agree that defendant’s trial counsel’s cross-examination of Ms. Bradley, even had it been “effective” rendered the prosecutor’s improper remark “harmless.” The danger inherent in such improper prosecutorial remarks made in closing argument is well stated in People v. Trujillo, 624 P.2d 924 (Colo.App.1980):
Prosecutorial conduct in argument is a matter of special concern because of the possibility that the jury will give special weight to the prosecutor’s arguments, not only because of the prestige associated with his office, but also because of the factfinding facilities presumably available to him. [Citation omitted.] If the state has a strong case, [prosecutorial misconduct] is not necessary, and if it has a close case, such misconduct is gross injustice to the defendant. [Citation omitted.]
Further, the prosecutor made an additional misstatement when he declared, “and the defendant even corroborates our story, he says he was there.” As to this remark the district court stated:
Estes did testify that he was at the Cascade Hotel immediately prior to the rape; however, he denied raping Ms. Somerton and further denied ever being in room No. 6 of the Hotel. Thus it was abundantly [sic] clear to the jury that while Estes did admit to being “there” (i.e., at the Cascade Hotel) he did not admit to ever entering room No. 6 of the Hotel. In light of Estes’fs] testimony, the Court is convinced that the above-said state*447ment by the prosecutor did not mislead the jury in any manner.
It is true, as the district court noted, that at trial Estes testified that he had been present at the Cascade Hotel on the evening of May 17, 1979. The problem with the prosecutor’s statement is not that the prosecutor said “he says he was there” but that in the same breath, the prosecutor argued to the jury that the defendant by so testifying had somehow corroborated the prosecution’s theory of the case. For Estes to have corroborated the prosecution’s story, he would have had to testify not only that he had been at the hotel but that he had been in the victim’s room and raped her. To that fact the defendant did not testify. Hence, the prosecutor’s implication to the contrary was improper.
Finally, in closing argument, the prosecutor vouched for the credibility of the state’s witnesses. As to the witnesses from the Idaho State Laboratory, the prosecutor stated, “Take you the weight of the evidence as to lab analysts. They’re very honest.” A few moments later, the prosecutor stated, “Ladies and gentlemen, we have a brave young girl that came before this court and testified what happened to her. It wasn’t easy on her, you could tell. Very honest as to what happened and her memory of such.”
It is well-settled that such vouching is not proper argument. See State v. Garcia, 100 Idaho 108, 110-11, 594 P.2d 146, 148-49 (1979); United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 1043, 84 L.Ed.2d 1 (1985). As to the prosecutor’s remarks that the lab analysts were “honest” and that Ms. Somerton was “honest,” the district court stated:
In the Court’s view the above-said statements were merely inferences which could be reasonably be [sic] drawn from the testimony of criminalist [sic] and Ms. Somerton____ Even if those statements were improper, Estes has failed to establish resulting prejudice which would warrant post-conviction relief.
Certainly, the members of the jury, having had the opportunity to see and hear the witnesses, could draw for themselves the inference that the lab analysts and the prosecutrix were “honest.” The question, however, is not whether such inference could be drawn, but whether the prosecutor, by his remarks, not only failed to ask the jury to draw that inference for themselves but instead personally vouched for their credibility.
Clearly, the prosecutor’s statements referenced above went beyond proper comment. The state, however, claims that this court should not attend to the prosecutor’s remarks because defendant’s trial counsel failed to object. Yet, when the defendant claims that he received inadequate trial representation, the state suggests that defendant’s trial counsel’s failings were “harmless.” Hence, the state on one hand asks us to accept the proposition that objection to prosecutorial misconduct was waived by an unalert counsel. On the other hand, the state urges that we reject defendant’s claim of inadequate representation. I find it difficult to reconcile the state’s urgings.
As to all of the above matters, the district court considered each issue separately and, as to each separate issue, concluded that any given error, considered alone, was “harmless.” At no point, however, did the district court assess the several errors and determine whether the cumulative effect deprived appellant of a fair trial.
In this case, the prosecution was required to show not only penetration but the identification of the assailant. Appellant’s identity as the assailant was the sole issue at trial. In light of the foregoing discussion, I must conclude that defense counsel totally failed to subject the state’s scientific “corroborating” evidence to meaningful adversarial testing, further failed to adequately prepare to cross-examine the prosecutrix’s testimony and, finally, failed to object to the prosecutor’s remarks which warranted objection.
Under the “cumulative error” doctrine, an accumulation of irregularities each of which in itself might be harmless, may, in the aggregate, show the absence of a fair *448trial. State v. Campbell, 104 Idaho 705, 719, 662 P.2d 1149, 1163 (Ct.App.1983). To hold error harmless, the Supreme Court must declare its belief, beyond a reasonable doubt, that there was no reasonable possibility that the errors complained of contributed to a defendant’s conviction. State v. Sharp, 101 Idaho 498, 507, 616 P.2d 1034, 1043(1980); Cf. I.C.R. 52 (1986). Although any one of the errors discussed above may, in itself, have been harmless, I cannot now say beyond a reasonable doubt that these errors, considered in the aggregate, did not contribute to the conviction.
Mr. Estes’ trial counsel’s preparation and performance was at least as ineffective as counsels’ performances in Carter v. State, 108 Idaho 788, 795, 702 P.2d 826, 833 (1985) and State v. Douglas, 97 Idaho 878, 555 P.2d 1145 (1976) wherein we reversed judgments of conviction on the grounds of ineffective assistance of counsel. There can be little doubt that counsel’s many failures, prejudiced appellant’s defense. The dual tests of Strickland have therefore been met. Ordinarily, I would reverse the judgment of conviction and remand for a new trial. However, for reasons explained below, I would decline to order a retrial.
I now turn to appellant’s claim that he was denied the right to a speedy trial. In State v. Lindsay, 96 Idaho 474, 475, 531 P.2d 236, 237 (1975), we observed:
The right of speedy trial as guaranteed by a state constitution or statute cannot be said to be necessarily identical to that right to speedy trial guaranteed in the Constitution of the United States. We find, however, that the “balancing test” laid down in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), is consistent with decisions of this court stating that whether one has been deprived of his right to a speedy trial must be decided by reference to considerations in addition to the mere passage of time. [Citations omitted.]
As we explained in State v. Talmage, 104 Idaho 249, 251, 658 P.2d 920, 922 (1983), “The ‘balancing test’ enunciated by the United State Supreme Court in Barker v. Wingo ... is a four-fold balancing test determinative of whether an accused has been denied a speedy trial. The factors to be considered are: (1) the length of delay; (2) the reason(s) for delay; (3) the defendant’s assertion of his right; and (4) prejudice to the defendant occasioned by the delay.” [Citations omitted.]
The time for computing delay, for purposes of determining whether an accused was denied the right to a speedy trial, begins on the date the criminal complaint against the accused was issued. Lindsay, 96 Idaho at 476, 531 P.2d at 238. In the present case, the appellant avers and the state concedes that the time lapse between the filing of the criminal complaint and the time the jury was summoned for the second trial was three years and eight months. It is true that delays in bringing a defendant to trial caused or consented to by the defendant are considered to constitute a waiver of the right to be tried within the time affixed by statute or required by article 6 of the U.S. Constitution. Talmage, 104 Idaho at 253, 658 P.2d at 924. In this case, appellant had stipulated to continue a trial date from September 19, 1979 to November 29, 1979. The stipulation to this continuance, however, cannot reasonably be viewed as a total waiver of the right to speedy trial. It is clear that the time allowed for the continuance comprised only a very small portion of the total time for the delay. The delay in the present case is clearly sufficient to trigger a judicial inquiry into whether appellant had been denied a speedy trial. Talmage, 104 Idaho at 252, 658 P.2d at 923; Lindsay, 96 Idaho at 476; 531 P.2d at 238.
The state contends that the main reason for the delay was trial counsel’s failure to diligently prosecute the appeal raising the issue of the missing transcript. In its responsive brief, the state argues:
[A]fter conviction and filing of notice of appeal on 17 January, 1980, from what is extant in the record, it appears that defendant did not urge the appeal forward. The case simply sat for want of action. It cannot be claimed on the basis of this *449record that defendant assiduously prosecuted his appeal. [Emphasis added.]
In the ordinary case, when a criminal defendant makes a case that he was denied the right to a speedy trial, it will be the prosecution and not his own attorney who must furnish reasons justifying any proven delay. In the present case, it appears that trial counsel’s failure to diligently prosecute the appeal not only furnished the main reason for the delay; but trial counsel further failed to assert appellant’s right to a speedy trial, which assertion is one factor to be considered in the balancing test set forth above. That counsel allowed the appeal to languish and failed to assert appellant’s right to a speedy trial are further examples of his ineffectiveness.
Whether the delay is occasioned by the state or by a criminal defendant’s own counsel, a criminal defendant is nonetheless entitled to a speedy trial. Applying the facts in this record to the four factors enumerated above, I reach the following conclusions: (1) the length of the delay, even subtracting the time allowed for the continuance to which defendant stipulated, was considerable; (2) the reason or reasons for the delay are not altogether clear, but to the extent the delay was caused by counsel’s failure to diligently prosecute the first appeal, the delay was inexcusable; (3) the appellant’s counsel failed completely to assert appellant’s right to a speedy trial; and (4) it is likely that appellant was prejudiced by the delay. The balance struck in this case is close. Following his initial conviction in 1979, Mr. Estes was sentenced to serve an indeterminate period of time not to exceed ten (10) years. Following his conviction in 1983, Mr. Estes was sentenced to serve an indeterminate term of seven (7) years with sixty-three (63) days of credit for pre-judgment incarceration. The record does not reflect that at any time since his second conviction, Mr. Estes has been on bail pending appeal. Hence, he has already been imprisoned over three years. Mr. Estes was unable to challenge his first conviction because the transcript of that trial was unavailable. In his second trial, Mr. Estes was not only not brought to trial in a timely fashion but was denied the effective assistance of counsel. It would offend my sense of justice to require the appellant to stand trial a third time. In light of all of the foregoing considerations, I would reverse the judgment of conviction and remand the cause to the district court with instructions that it enter an order directing the warden of the State Penitentiary to release and discharge Mr. Estes.
BISTLINE, J., concurs.. Mr. Shoenhut was appellant’s trial counsel. Mr. Hover is appellant’s counsel on appeal.