1

Roger L. Wollman became Chief Judge of the United States Court of Appeals

for the Eighth Circuit on April 24, 1999.

2

The Honorable Ronald E. Longstaff, United States District Judge for the

Southern District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-2449

___________

Yvette M. Louisell, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Southern District of Iowa.

Director of Iowa Department of *

Corrections, *

*

Appellee. *

___________

Submitted: February 8, 1999

Filed: June 2, 1999

___________

Before WOLLMAN,1

 LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________

WOLLMAN, Chief Judge.

Yvette M. Louisell appeals from the district court’s2

 denial of her petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254. We affirm.
3

In light of our recent holding in Nichols v. Bowersox, Nos. 97-3639/97-3640,

slip op. (8th Cir. Apr. 13, 1999) (en banc), we agree with the district court that

Louisell’s petition was timely filed.

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I.

In the fall of 1987, Louisell was a seventeen year-old college freshman who

worked part-time as a nude model for a college art course. Keith Stillwell, one of the

art students, befriended Louisell and often hired her to model in his home. Stillwell

was a paraplegic who walked with two canes or crutches and had limited use of his

hands. While at Stillwell’s home for a modeling session on December 6, 1987, Louisell

fatally stabbed Stillwell and took his wallet. She was apprehended the next day while

attempting to use Stillwell’s credit card to make a purchase.

Louisell was charged with one count of first-degree murder and three counts of

forgery. See Iowa Code §§ 707.1, 707.2, and 715A.6 (1987). At trial, Louisell

testified that she had stabbed Stillwell in self-defense after he attempted to rape her and

that she had then stolen his wallet to make it look like a robbery. The jury convicted

Louisell on all counts, and she was sentenced to life imprisonment. Her conviction was

affirmed on direct appeal by the Iowa Court of Appeals, see State v. Louisell, No.

10258 (Iowa Ct. App. April 24, 1990), and further review was denied by the Iowa

Supreme Court. Louisell filed an application for state post-conviction relief, which was

denied on April 9, 1993.

 Louisell then filed this petition for habeas corpus pursuant to 28 U.S.C. §

2254.3 The district court denied the petition, but issued a certificate of appealability

with respect to certain issues. See 28 U.S.C. § 2253. 
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II.

A.

Louisell first asserts that the jury instructions relating to the justification defenses

under Iowa law violated her due process rights under the Fourteenth Amendment. She

argues that the instructions required the jury to consider what a reasonable person

would have done under the circumstances and thereby discouraged the jury from

considering what force she felt was necessary to defend herself. 

The formulation of jury instructions primarily concerns the application and

interpretation of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (stating

that a federal habeas court is not to “reexamine state-court determinations on state-law

questions”). A finding that a jury instruction is permissible under state law, however,

does not determine whether due process has been violated under federal law. See id.

at 68; Seiler v. Thalacker, 101 F.3d 536, 539 (8th Cir. 1996).

Habeas corpus relief may be granted only when an erroneous jury instruction

constituted “a fundamental defect” that resulted “in a complete miscarriage of justice,

[or] an omission inconsistent with rudimentary demands of a fair trial.” Crump v.

Caspari, 116 F.3d 326, 327 (8th Cir. 1997) (quoting Hill v. United States, 368 U.S.

424, 428 (1962)); accord Berrisford v. Wood, 826 F.2d 747, 752 (8th Cir. 1987). We

conclude that no constitutional violation occurred in this case. See Cupp v. Naughten,

414 U.S. 141, 146-47 (1973). The instructions were not misleading. See Boyde v.

California, 494 U.S. 370, 380 (1990). They conveyed to the jury that the state was

required to prove the existence of every fact to constitute the crime charged beyond a

reasonable doubt. See In re Winship, 397 U.S. 358, 363 (1970). They also instructed

the jury to consider all of the evidence, “including the evidence going to self-defense,”

in deciding whether there was “a reasonable doubt about the sufficiency of the state’s

proof of the elements of the crime.” Martin v. Ohio, 480 U.S. 228, 234 (1987).
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B.

Louisell next argues that her due process rights were violated when the trial court

refused her request to present surrebuttal argument. During its closing argument, the

state reviewed the trial testimony, the physical evidence, and several jury instructions,

and then argued that Louisell’s version of the events was unreasonable. Louisell’s

counsel then argued on her behalf, emphasizing her age and moral character and noting

that the state had failed to present any theory of the case. In rebuttal, the state

proposed a theory of the case, offered a motive for the crime, and questioned the

sincerity of Louisell’s testimony. Defense counsel then requested an opportunity to

present surrebuttal argument, arguing that the state’s rebuttal argument presented new

issues.

The state is not required to present a “‘theory of the case’” in its opening

argument “in the sense that it must endeavor to explain the meaning of every piece of

evidence.” United States v. Sarmiento, 744 F.2d 755, 766 (11th Cir. 1985). The scope

of the state’s rebuttal is determined by the content of the defendant’s closing argument.

See id. The state’s rebuttal argument responded to defense counsel’s invitation to

proffer an explanation of the crime, and thus the trial court’s refusal to allow surrebuttal

argument did not deprive Louisell of due process.

C.

After she was arrested for attempting to use Stillwell’s credit card, Louisell was

taken to the police station. In light of Louisell’s age, police officers called Louisell’s

grandmother and legal guardian, Ethel Epps, to obtain permission to question Louisell.

After Ms. Epps granted the police officers such permission, she asked to speak with

Louisell. During Louisell’s conversation with her grandmother, police overheard her

make statements about finding a wallet with credit cards in it. The officers were
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permitted to testify about these statements. Louisell contends that the admission of

those statements violated her Fifth Amendment rights. 

To be protected by the Fifth Amendment, the statements must have been made

while in police custody and in response to police interrogation, see Miranda v. Arizona,

384 U.S. 436 (1966), or its “functional equivalent.” Rhode Island v. Innis, 446 U.S.

291, 300-01 (1980). In determining whether the statements were the result of an

interrogation, we focus on Louisell’s perception of the attending circumstances. See

Boykin v. Leapley, 28 F.3d 788, 792 (8th Cir. 1994). “Any statement given freely and

voluntarily without any compelling influences is, of course, admissible in evidence.”

Miranda, 384 U.S. at 478. Although Louisell was no doubt in police custody, the

circumstances surrounding her telephone conversation with her grandmother do not

suggest that the officers called Ms. Epps with an intent to elicit incriminating

statements from Louisell. Louisell was not “subjected to compelling influences,

psychological ploys, or direct questioning” from police officers, Arizona v. Mauro, 481

U.S. 520, 529 (1987), and thus the admission of her statements to her grandmother did

not violate her Fifth Amendment rights.

D.

Lastly, Louisell advances several arguments in support of her contention that she

was denied a fair trial in violation of her Sixth Amendment rights because of

prosecutorial misconduct. As a general rule, “[p]rosecutorial misconduct does not

warrant federal habeas relief unless the misconduct infected the trial with enough

unfairness to render [petitioner’s] conviction a denial of due process.” Roberts v.

Bowersox, 137 F.3d 1062, 1066 (8th Cir. 1998), cert. denied, 119 S. Ct. 808 (1999).

First, Louisell claims that the state interfered with her right to interview and have

access to the reports of Dr. Turner, a psychiatrist who examined her. She argues that

the state instructed Dr. Turner not to speak to her lawyers without the presence of the
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prosecutor. The Iowa Court of Appeals found, however, that the state had merely

expressed a preference that the prosecutor be present. See Louisell, No. 10258, slip

op. at 12. Moreover, the trial court ultimately granted Louisell access to Dr. Turner

outside the presence of the prosecutor. Neither party called Dr. Turner to testify at

trial, and there is no evidence that any delay Louisell experienced in being able to speak

privately with Dr. Turner rendered the trial unfair.

Second, Louisell argues that the prosecuting attorney improperly commented on

her credibility during the closing argument by suggesting that her attorney had coached

her to cry while testifying. “Improper prosecutorial remarks violate due process when

there is a reasonable probability the remarks affected the trial’s outcome.” Roberts,

137 F.3d at 1066. We see no reasonable probability that the challenged comment

affected the outcome of the trial in this case.

Finally, Louisell contends that the prosecuting attorney deliberately pursued

information previously suppressed by the trial court during the examination of several

witnesses. Trial errors warrant habeas relief when the prosecutor’s actions are

improper and have “prejudicially affected the defendant’s substantial rights so as to

deprive the defendant of a fair trial.” United States v. Thomas, 93 F.3d 479, 487 (8th

Cir. 1996). “In evaluating whether a trial error resulted in prejudice to the defendant,

we consider the cumulative effect of such misconduct, the strength of the properly

admitted evidence of the defendant’s guilt, and the curative actions taken by the [trial]

court.” Id. In this case, there is no evidence that the prosecutor attempted to elicit

information suppressed by the trial court in willful disregard of the trial court’s order.

The Iowa Court of Appeals found that one of the answers was unanticipated by the

prosecution and another answer was merely cumulative of evidence already admitted.

Moreover, the trial court properly sustained Louisell’s objections to improper questions

and immediately admonished the jury to disregard the statements. Considering the

strength of the state’s evidence and the curative instructions provided by the trial court,
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we conclude that no constitutional violation occurred. See United States v. Turk, 21

F.3d 309, 313 (8th Cir. 1994); Thomas, 93 F.3d at 487.

The judgment is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.