### The Honorable Richard H. Battey, United S tates District Judge 1 

### for the District of South Dakota. ___________ No. 95-1941

___________ Michael Jenner, * * Appellant, * * v. * Appeal from the United States * District Court for the Joe Class, Warden, South Dakota * District of South Dakota. State Penitentiary; Mark W. * Barnett, South Dakota Attorney * General, * * Appellees. *

___________ Submitted: November 16, 1995 Filed: April 1, 1996

___________ Before HANSEN, JOHN R. GIBSON, and MURPHY, Circuit Judges.

___________ JOHN R. GIBSON, Circuit Judge.

Michael Jenner was found guilty by a South Dakota state court jur y of pre meditated murder, conspiracy to commit murder, and accessory t o murder. His convicti ons were affirmed on all direct appeals. He filed a petition f or writ of habeas corpus, which the district court denied. On 1 appeal , Jenner contends that he was provided ineffective assistance o f counsel and his trial was fundamentally unfair because of the trial court' s refusal to sever his trial from that of his co-defendant. He also argues that the

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evide nce was insufficient to convict him and he was denied due proces s because of excessive and prejudicial trial security. We affirm.

The facts of this case are set forth in the South Dakota Suprem e Court opinion, State v. Jenner , 434 N.W.2d 76, 7 7-79 (S.D. 1988). We will not restate the facts in detail, but will discuss those facts relevant to the issues raised by Jenner.

Jenner's convictions arose from the execution-style murder of Jackie Sjo ng, a prospective witness in a California murder prosecution. Rick y Fenstermaker, a membe r of the Vagos motorcycle club, stabbed a hitchhiker to death on a California highway. Sjong, Fenste rmaker's cousin, witnessed the stabbing. Jenner, the president of the Los Angeles chapter of th e Vag os, along with co-defendant Richard Elliott, shot Sjong near the KO A campground in Sturgis, South Dakota, while the group was attending th e annual Black Hills motorcycle rally. Jenner was convicted of first degree murd er, conspiracy to commit murder, and accessory after the fact t o murder. After Jenner exhausted his state appeals, he petitioned for habea s corpus relief. The district court denied the writ, and Jenner appeals.

I.

Je nner raises several claims of ineffective assistance of counsel

. He claims his trial c ounsel was ineffective on several grounds, including counsel 's: (1) failure to object to alleged vouching for prosecutio n witness Fenstermaker; (2) failure to explain the presence of a Fenstermake r family photograph in Jenner's wallet; (3) failure to fully impeac h Fenster maker; (4) failure to object to testimony that Jenner had bee n previously incarcerated; (5) failure to propose an accomplice instruction; (6) failure to object to an attack on defense counsel; (7) failure t o introduce evidence that Jenner does not smoke; (8) failure to

### Jenner also argues he was denied due process because of the 2 

### prosec ution's vouching for Fenstermaker. Because we conclude n o improp er vouching took place, we reject Jenner's due proces s argument. -3- object to the prosecu tion's questioning of Jenner about not calling alibi witnes ses; and (9) failure to object to the prosecution's questionin g Jenner whether certain witnesses were lying.

Our review of counsel's representation is "highly deferential. " Stric kland v. Washington , 466 U.S. 668, 689 (1984). To establis h ineffective assistance of counsel, Jenner must show that trial counsel's perfo rmance was deficient and that Jenner was prejudiced. Id. at 687 ; Flieger v. Delo , 16 F.3d 878, 886 (8th Cir.), ce rt. denied , 115 S. Ct. 355 (199 4). Counsel's representation is deficient if it falls "below a n object ive standard of reasonableness." Strickland , 466 U.S. at 688
. Counsel's decisions are presumed reasonable and "strategic choices mad e after th orough investigation of law and facts . . . are virtuall y unchallengeable . . . ." Id. at 690. Strickland explained that to show prejudice, the petitioner "must show that there is a reasonable probabilit y that, but for counsel's unprofessional errors, the result of the proceedin g would have been different." Id. at 694. The Court subsequently refined the prejudice inquiry, explaining that the test for demonstrating prejudic e is not solely a matter of outcome determination, but rather, whether the trial was fundamentally unfair or unreliable. Lockhart v. Fretwell , 506 U.S
. 364, 369-71 (1993); Battle v. Delo , 19 F.3d 1547, 1554 (8th Cir

. 1994).

Jenner f irst claims that his counsel was ineffective in failing t o object t o the prosecution's alleged vouching for Fenstermaker. Durin g 2 Fenstermaker's direct examination, the prosecuto r asked Fenstermaker if he
was required to testify truthfully as a condition of his grant of immunity , and "that the only way that [he] could get in trouble testifying here in this

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case . . . would be if [he] would come in and not tell the truth." I n closin g argument, the prosecutor also stated that Fenstermaker had n o motive to lie, because if he did lie, his immunity would be cancelled

. Jenner contends these two instances amounted to improper vouching.

The South Dakota Supreme Court rejected this argument in Jenner' s state habeas appeal, concluding there was no imp roper vouching. Jenner v. Lea pley , 521 N.W.2d 422, 427-28 (S.D. 1994). We have reviewed th e testimony and argument and hold no improper vouching occurred. Th e prosecutor did not place the prestige of the government behind the witness , suggesting that the prosecutor had some special knowledge, not known to th e jury, that the witness was testifying truthfully. See United States v

. Mag ee , 19 F.3d 417, 421 (8th Cir.) (similar statements held not to b e improper vouching), cert. denied , 115 S. Ct. 343 (1994). The prosecutor sim plyrelayed the terms of Fenstermaker's immunity agreement. See Id
. Thus, trial counsel's failure to object to the questioning and statements
was well within the range of professionally reasonable judgment and does not constitute ineffective assistance of counsel. Jenner next contends that his trial attorney was ineffective fo r failing to present certain evidence. During the state's rebuttal argument , the prosecutor raisedthe question of how Jenner obtained a photograph of Fenstermaker's child and former girl-friend, implying that Jenner got the photograph from Sjong after he killed him. Jenner contends his tria l counsel was ineffective for failing to explain that he actually got th e photographfrom Fenstermaker's former girlfriend. Jenner also complains about counsel's failure to establish that he didnot smoke. Two cigarette butts were found at the murder scene. There was testimony at trial that
someone with the same blood type as Sjong smoked one of the cigarettes, an d that Elliott did not smoke.
The South Dakota Supreme Court rejected these arguments. The

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court ruled that the prosecution improperly argu ed in rebuttal that Jenner may have obtained the family photograph from Sjong's body after killing hi m because these comment s went beyond the scope of issues raised by Jenner's closing a rgument. 521 N.W.2d at 429. Nevertheless, the court found n o prejudice. Id. Simi larly, the court concluded that counsel's failure to introduce evidence th at Jenner did not smoke did not constitute deficient performance or prejudicial error. Id. at 430.

Jenner did not receive ineffective a ssistance of counsel for failure to present evidence. First, a prosecutor's presentation of
newargument during rebuttal is an error of state law, and does not rise to the level of a constitutional violation. See Whitmore v. Lockhart , 8 F.3d 614, 625 (8th Cir. 1993); Berrisford v. Wo od , 826 F.2d 747, 749 (8th Cir. 1987), cert. denied , 484 U.S. 1016 (1988). Second, counsel's failure to present evidence that Jenner received the photograph from Fenstermaker' s girlfri end was not prejudicial. The prosecutor did not emphasize th e photographand did not misstate the evidence. Jenner had the photograph in his wallet when he was arrested. See United States v. Felix , 867 F.2d 1068, 1075 (8th Cir. 1989).
Similarly, Jenner was not prejudiced by trial counsel's failure t o establish that he did not smoke. There was no evidence linking th e cigarette to Jenner, only evidence that one of the cigarettes could have been Sjong's. Evidence that Jenner did not smoke would not have changed the outcome at trial.
Jenner next argues that his trial counsel was ineffective for f ailing to impeach Fenstermak er with Fenstermaker's four prior felony convictions for burglary and receiving stolen goods.

Jenner's trial counsel explained that he did not use thes e convictions to impeach Fenstermaker because the jury was informed of the details of Fenstermaker's manslaughter conviction. Trial

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counsel reasoned that the burglary and stolen goods convictions were less serious than the evidence that Fenstermaker stabbed someone to death for making an obscene gesture at him. This reasoning is objectively reasonabl e and counsel was not deficient. See English v. Un ited States , 998 F.2d 609, 613 (8 th Cir.) (ineffective assistance of counsel not demonstrated b y att orney's failure to call a witness to impeach another witness), cert
. denied , 114 S. Ct. 573 (1993).

Jenner further argues that his counsel was ineffective for no t objecting to testimony that Jenner had been in prison. Jenner's counsel did not object to co- defendant Elliott's testimony that he only talked to Jenner "a couple times because [Jenner] was in the joint most of the time. " Trial counsel explain ed that he did not object because he did not want to furt her emphasize Jenner's incarceration. Counsel's failure to objec t amount s to a reasonable trial strategy. See Whitmore , 8 F.3d at 62 4 (reason able tactical decision not to object to evidence about a prio r conviction).

Jenn er also cites counsel's failure to propose an accomplic e instruction as an example of ineffective assistance of counsel. He says his trial counsel should have proposed an instruction informing the jury that Fenstermaker was an accomplice to the Sjong murder and the jury shoul d view Fenstermaker's testimony cautiously.

The South

Dakota Supreme Court held that Jenner was not entitled to an accomplice instruction because Fenstermaker w as not an accomplice under state law. Given the South Dakota Supreme Court's ruling, there is n o basis for ruling that counsel was deficient for not proposing th e instruction. See Berrisford , 826 F.2d at 752-53.

Jenner next contends that his trial counsel's failure to

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withdraw his notice of alibi amounted to ineffective assistance of counsel

.
Before trial, Jenner's counsel filed a notice of alibi defense , listing six witnesses, as required by S. D. Codified Laws Ann. § 23A-9-1 (1988). Jenner's attorney subpoenaed and called only one of thes e witnesses because he was unable to locate the ot her witnesses. During the pr osecutor's cross-examination of Jenner, the prosecutor brought ou t Jenner's failure to call the alibi witnesses. J enner now argues his trial counsel was ineffecti ve for failing to object to this questioning and for failing to withdraw the notice.

Th e South Dakota Supreme Court found no error in trial counsel' s failur e to object because counsel never withdrew the notice, and , therefore, the prosecution's inquiry was proper under section 23A-9-6. Th e court further reasoned that even if counsel erred in failing to withdraw the notice, there was no prejudice, as the prosecution could still refer to the lack of alibi witnesses under South Dakota case law. We ar e satisfied that the prosecutor directed his comme nts at Jenner's failure to call alibi witnesses, which is not a basis for an ineffective assistance claim. See Epps v. Iowa , 901 F.2d 1481, 1483 (8th Cir. 1990).

Jenner also claims his counsel was i neffective for failing to object to the prosecution's questioning of Jenner and closing argument. During Jen ner's cross-examination, the prosecutor asked Jenner whether othe r witnesses were lying. The South Dakota Supreme Court ruled that it wa s "probably improper" t o ask whether other witnesses were lying, but it was not prejudicial. 521 N.W.2d at 432. After careful review of th e questioning, we conclude that the references wer e isolated and directed to contradictions in wit ness' testimony. No prejudice occurred. See United States v. Williams , 897 F.2d 1430, 1432-33 (8th Cir. 1990).

### Jenner also argues that the trial court erred in admittin g 3 

### testimony of a witness that Elliott asked the witness to retrieve Elliott's gun from the trash a nd to get a shovel to bury the body. Jenner does not develop this argument in detail and fails t o specifyany constitutional violation or even trial error. Se e Jenner , 434 N.W. 2d at 82 (testimony admissible under co

conspirator exception to hearsay rule). -8- Jenne r also argues ineffective assistance based on his attorney' s failure to object to an attack on counsel's integrity. The prosector state d in his closing argument:
You see, they had this k ind of a meeting. They had this idea. `Hey, we can both get out of this deal together if we stic k toge ther. We can both get out.' But you know what? You'v e heard it said before, there is no honor among thieves. There certainlyisn't honor among murderers. When it came down t o it, it was each man for himself. They pointed the finger a t each other and the very least, ladies and gentlemen, you can't walk out of that jury room without at least findingone of them guilty, because the evidence is there.

Jenner's trial counsel had met with Elliott before Elliott testified at t rial. At trial, Elliott changed his story, and Jenner's counse l impeached him. Jenner contends that the prosecutor's statement directly 3 att acked the truthfulness of his attorney, accusing him of concocting a story.
A fair interpretation of the prosecu tor's argument, however, is that the prosecutor accused Jenner, not his attorney, of fabricating a defense. Thus, trial counsel's failure to object was neither deficient no r prejudicial. See Uni ted States v. Fuller , 887 F.2d 144, 147-48 (8th Cir. 1989), cert. denied , 496 U.S. 908 (1990).

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Jenner next claims his trial was fundamentally unfair because th e trial court refused t o sever his trial from that of co-defendant Elliott. Jenner claims his trial was fundamentally unfair because the jury could no t compartmentalize the evidence as it related to t he separate defendants and the separate counts. Jenner also claims that hi s defense was antagonistic and mu tually exclusive to Elliott's, and Elliott's unexpected change o f story at trial made it impossible for him to receive a fair trial.

"In c hallenging the trial court's failure to sever his trial fro m that of his codefendant, [Jenner] bears a heavy burden." Hollins v

. Department of Correct ions , 969 F.2d 606, 608 (8th Cir. 1992). This court will not grant habeas relief unless Jenner can establish that the failure to grant severance rendered his trial fundamentally unfair. Id.

In af firming Jenner's convictions, the South Dakota Supreme Cour t rejected Jenner's sev erance argument, finding that Jenner "failed to make the requisite showing that his defense and that of Elliott were s o irreconcilable that severance was required." 43 4 N.W.2d at 81. The court reasoned that the conflict between the codefendants did not compel the jur y to believe Elliott's story to the exclusion of Jenner's.

Foll owing the South Dakota court decision, the Supreme Cour t explained that the joint trial of defendants wit h mutually antagonistic or irreconcilable defenses is not prejudicial per se, so as to require th e trial court to sever the trial of codefendants. Zafiro v. United States , 506 U.S. 534, 538 (1993). Hostility or finger pointing among th e def endants is not enough to require separate trials. See id. at 540
. Severance is required only when "there is a serious risk that a joint tria l would compromise a specific trial right of one of the defendants, or

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prevent the jury from making a reliable judgment about guilt or innocence. " Id. at 539. Jenner fails to articulate any tria l right compromised by the joint trial or explai n how the joint trial prevented the jury from making a reliable judgment. Id.

We are s imilarly unpersuaded that the number of charges and numbe r of defendants mandated severing the trials. Jenner does not explain why the jur y could not compartmentalize the evidence of the three charge s against the two defendants. See United States v . Lucht , 18 F.3d 541, 553- 54 (8th Cir. 1994), c ert. denied , 115 S. Ct. 363 (1994); United States v. O'Connell , 841 F.2d 1408, 1431-33 (8th Cir. 198 8), cert. denied , 488 U.S. 1011 (1989). Jenner has not shown fundamental unfairness.

III.
Jenner next argues that there is insufficient evidence to suppo rt his convictions. We will grant relief for insuffici ent evidence only when the evidence at trial is such that no rational trier of fact could have found guilt beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319 (1979). The evidence is considered in the light most favorable to th e prosecution. Id.

Jenner argues that the photograph was the only physical evidenc e linking him to the Sjong murder, and absent his counsel's mistakes, th e prosecution could not have used this evidence to gain a conviction

. Bes ides Elliott's testimony identifying Jenner as the murderer, a significant amount of additional evidence pointed towards Jenner's guilt. There wa s evidence that Jenner was a member of the Vagos, and that th e Vagos had a policy of killing "snitches." Indeed, Fenstermaker testified that he t hought Sjong was killed because he was a snitch. Fenstermake r testified that following his arrest in California he telephoned Jenner, an d Jenner tol d him not to "worry about it," he would "take care of it. " Jenner told Fenstermaker not to call him or any other Vago until he

### Jenner directs us to newspaper article written during hi s 4 

### trial which described the cour thouse as "a modern-day Alamo before the attack." -11- heard from somebody. After Sjong's death, another witness testified that he overheard Jenner say that "the witness has been taken care of. . . ." Finally, there was ev idence linking Jenner to the murder scene and one of the murder weapons. Ample evidence existed for a rational trier of fact to have found guilt beyond a reasonable doubt.

IV.
Finally, Jenner contends that his due process rights were violate d because of security measures taken at trial.

There is no record evidence, however, to tell us what securit y measures Jenner endured at his trial. Jenner st ates that there were armed federal marshals in the courtroom and throughout the courthouse. H e 4 states th at all spectators had to pass through a metal detector an d spectators were not allowed to stay when the defendants entered or left th e courthouse. He state s that certain floors of the courthouse were closed, and restrictions were placed on who he could spe ak with in the courthouse.

Jenner says that the security measur es, especially when coupled with the other trial errors, gave the jury the impression that Jenner wa s extremely dangerous a nd guilty, and this violates his due process rights.

Even ass uming we have an adequate record to review Jenner's claim , we cann ot conclude the security measures identified by Jenner were s o prejudicial that Jenner was denied a fair trial. Holbrook v. Flynn , 475 U.S. 560, 568-70 (1986) (identifiable courtroom guards are not a per s e constitutional violation); Hellum

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v. Warden , 28 F.3d 903, 907 (8th Cir. 1994) (additional security personne l and use of metal detectors are less prejudicial than physical restraints because of wider range of inferences that juror might reasonably draw from their use).

We affirm

the district court's denial of the writ of habeas corpus.

A true copy.

Attest:

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