### The Honorable David S. Doty, United State s District Judge for 1 

### the District of Minnesota, adopting the report and recommendation of the Honorable Franklin L. N oel, United States Magistrate Judge. ___________ No. 95-4032

___________ Kenneth Melvin Phea, * * Appellant, * * Appeal from the United States v. * District Court for the * District of Minnesota. Dennis L. Benson, Warden, * Minnesota Correctional * Facility, Stillwater, MN, * * Appellee. *

___________ Submitted: July 11, 1996 Filed: September 9, 1996

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

___________ WOLLMAN, Circuit Judge.

Ken neth Phea appeals from the district court's denial of his 2 8 1 U.S.C. § 2254 petition. We affirm.

I.

On Octobe r 9, 1991, the victim of the crime giving rise to Phea' s conviction had a chan ce encounter with Phea at the Greyhound bus terminal in Minnea polis, Minnesota. The two left the bus terminal in Phea' s automobile. When the y returned, the victim discovered she had missed her bus. Phea offered to drive her to her aunt's house after stopping to see Phea's sister.

### -2- While at Phea's sister's house, Phea physically restrained and raped the victim. After Phea fell asleep, the victim was able to leave and call the police. The responding officer characterized the victim as agitated and hysterical. Another officer stated that the victim was very upset and appe ared to have been in pain. The nurse at the hospital to which th e victimwas taken likewise testified that the victim was crying and ver y frightened.

At Phea' s trial, the victim became emotional soon after her direc t examination began. She began to cry and said ("screamed," according to th e Minnesota Court of Ap peals' opinion), "Don't make me say this, I can't, I can't." The prosecutor requested a short recess , which the court granted. Phea's motion for a m istrial was denied. Phea did not request a curative instruction and none was given sua sponte by the court.
Phea was convicted of criminal sexual conduct. The Minnesota Court of Appeals affirmed his conviction in an unpublished opinion, State v . Phea , C7-92-1104 (Minn. Ct. App. April 20, 1993). The Minnesota Supreme Court denied review. Phea then filed this section 2254 petition.

II. Phea contends that his due process r ights were violated by the state trial cou rt's refusal to grant a mistrial and its failure to sua spont e give a curative instruction. The district court found that the victim's statement was not prejudicial and that Phea was thus not denied his du e process rights. We agree.
The relevant inquiry for whether the trial court erred in no t granting a mistrial b ased upon a witness's statement is whether there has been a due process violation. Cage v. Auger , 514 F.2d 1231, 1232 (8th Cir
. 1975) (citing Donnelly v. DeChristoforo , 416

### -3-

U.S. 637, 643 (1974)). Whether a due process violation occurred depends upon whether the witness's statement "so infected the trial with unfairnes s as to make the resulting conviction a denial of due process." Alexander
v. Armontrout , 985 F.2d 976, 978 (8th Cir. 1993) (quoting Donnelly , 41 6 U.S. at 643).
The victi m's statement, "Don't make me say this, I can't, I can't," neither me ntioned Phea nor pertained to any of the evidence or claim s before the court. Moreover, the statement in no way enhanced the victim's credi bility, but rather was a natural response to being called upon t o recount the details of the rape. Because the st atement did not infect the trial with unfairness, Phea suffered no denial of due process.
Curative measures are normally sufficient to mitigate any potential preju dice that may result from a witness's statement or behavior. Cf
. United States v. Kosk ela , 86 F.3d 122, 125 (8th Cir. 1996). However, the failu re to give a sua sponte curative instruction does not, by itself , amount to constitutional error. Willis v. Kemp , 838 F.2d 1510, 1519-2 0 n.19 (11th Cir. 1988). Because no prejudice resulted from the victim' s unresponsive, albeit emotional, statement, the trial court committed n o error in failure to sua sponte give a curative instruction.
By the same token, Phea's argument that his trial counsel wa s ineffective for failing to request a curative instruction is without merit
. We turn to Phea's claim that counsel rendered ineffective assistance by not challenging th e composition of the jury. To succeed on a claim of ineffective assistance of counsel, a petitioner must show not only that hi s attorney's performance was deficient, but also that he was prejudiced by such deficient perfor mance. Strickland v. Washington , 466 U.S. 668, 687- 688 (1984). If a petitioner fails to demonstrate that prejudice has

### -4-

resulted from the complained-of performance by counsel, we need not analyz e the performance prong. Carter v. Armontrout , 929 F.2d 1294, 1298 (8th Cir
. 1991) (citing Strickland , 466 U.S. at 697). A defendant is guaranteed a jury cho sen from a fair cross section of the community. Wharton-El v. Nix , 38 F.3d 372, 376 (8th Cir. 1994). Phea is an Af rican-American, and he claims that the venire panel under

re presented African-Americans, resulting in a violation of his Sixt h Amendment right. To establish this claim, Phea was required to show:
(1) that African-Americans are a "distinctive group in th e community;" (2) that the representation of African- Americans in jury pools is not "fair and reasonable in relation to th e number of [African-Americans] in the community;" and (3) that "t his under-representation is due to systematic exclusion o f [African-Americans] in the jury-selection process."
Wharton-El , 38 F.3d at 376 (quoting Duren v. Missouri , 439 U.S. 357, 364 (1979)). Even assuming that the first two prongs have been satisfied, Ph ea has not pr esented any evidence showing a systematic exclusion of African

American s from the jury pool. At most, he has shown a possible under

representation of African-Americans in his case only. "`Evidence of a discrepancyon a single venire panel cannot demonstrate systemati c exclusion.'" Wharton-El , 38 F.3d at 376 (quoting Singleton v. Lockhart , 871 F.2d 1395, 1399 (8th Cir. 1989), cert. denie d , 110 S. Ct. 207 (1989)). As we stated in Wharton-El , "the absence of any actual systematic exclusio n prec ludes a finding of prejudice springing from ineffective assistanc e based on the failure to raise or preserve the issue of systemati c exclusion." 38 F.3d at 377. Thus, because Phea has not demonstrated that the comp osition of the jury violated the requirements of the Sixt h Amendment, counsel was not ineffective for failing to object.

### -5- III.

Ph ea's final argument is that the evidence was not sufficient t o support his conviction. The district court found that the victim' s testimony, along with other corroborating evidence, such as the officers' and nurse's observations, was sufficient to sust ain Phea's conviction. We agree.

In reviewing a sufficiency of the evidence claim, we must as k "whether, after viewing the evidence in the light most favorable to th e prosecution, any rational trier of fact could have found the essentia l elements of the crime beyond a reasonable doubt." Jackson v. Virginia , 44 3 U.S. 307, 319 (1979). Phea's argument is that reasonable doubt should hav e arisen because of inc onsistencies in the victim's testimony, her previous statements, and other evidence. It is, however, the jury's function, and not this court's, to weigh the credibility of the witnesses and any such inconsistencies. Cf. United States v. E.R.B. , 86 F.3d 129 (8th Cir. 1996)
. We conc lude that when viewed in the light most favorable to th e prosecution, the evidence was sufficient to sustain Phea's conviction. The judgment is affirmed.
A true copy.

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