The HONORABLE THOMAS M. REAVLEY, United States Circuit Judge *

for the United States Court of Appeals, Fifth Circuit, sitting by

designation.

The Honorable Richard H. Battey, Chief Judge, United States

1

District Court for the District of South Dakota.

 

No. 96-2988

 

STANLEY WAYNE BREWER, *

 *

Plaintiff-Appellant, * Appeal from the United States

 * District Court for the 

v. * District of South Dakota.

 *

UNITED STATES OF AMERICA, * [NOT TO BE PUBLISHED]

 *

Defendant-Appellee. *

 

Submitted: June 13, 1997

 Filed: August 15, 1997

 

Before LOKEN, REAVLEY and JOHN R. GIBSON, Circuit Judges. *

 

PER CURIAM.

Stanley Brewer was convicted of the rape of Jessica Tobacco. He

brought this action under 28 U.S.C. § 2255, seeking a new trial on grounds

of ineffective assistance of counsel. The district court denied the

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motion for new trial. We affirm.

On appeal we review the question of ineffective assistance of counsel

de novo and review the district court’s findings of 
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underlying predicate facts under the clearly erroneous standard. Reed v.

United States, 106 F.3d 231, 236 (8th Cir. 1997). To establish ineffective

assistance, the convicted defendant must show that counsel’s performance

was deficient and that the deficient performance prejudiced the defense.

Strickland v. Washington, 466 U.S. 668, 687 (1984). As to the prejudice

requirement, the defendant must show a reasonable probability that but for

his counsel’s errors, the result of the proceeding would have been

different. Id. at 694.

“Judicial scrutiny of counsel’s performance must be highly

deferential and the court must indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance.”

Reed, 106 F.3d at 236. Particularly where counsel’s trial strategy is in

issue, “[w]e presume attorneys provide effective assistance, and will not

second-guess strategic decisions or exploit the benefits of hindsight.”

Payne v. United States, 78 F.3d 343, 345 (8th Cir. 1996).

Brewer argues that his counsel was ineffective because he failed to

move to suppress Brewer’s statement after arrest that “that f---ing bitch

Jessie must have said I tried something.” We agree with the district court

that, even if Brewer’s warrantless arrest was illegal, his statement was

voluntary and not prompted by coercion or interrogation after the arrest.

The statement therefore was not tainted by the alleged illegal arrest and

was admissible. United States v. Houle, 620 F.2d 164, 165-66 (8th Cir.

1980).

Brewer complains that his counsel failed to submit proposed voir dire

questions on the issues of racial prejudice, sexual assault and alcohol.

On appeal, he does not specify what questions 
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should have been asked of the potential jurors. In any event, we agree

with the district court that the trial court asked sufficient questions on

these issues to apprise the attorneys of possible juror prejudices.

Defense counsel’s failure to propose additional questions fell within the

broad range of reasonable professional assistance.

Brewer next argues that his counsel was ineffective in crossexamining Tobacco and Gary Pourier. We have carefully reviewed the

evidence and argument on this issue, and agree with the district court that

Brewer’s counsel offered reasonably effective assistance. As to Tobacco,

counsel cross-examined her at some length regarding inconsistencies between

her trial testimony and prior statements. The extent to which an alleged

rape victim should be subjected to cross-examination is inherently a matter

of strategy, as a withering and relentless cross-examination can easily

backfire. And as we have explained, “[i]n hindsight, there are few, if

any, cross-examinations that could not be improved upon. If that were the

standard of constitutional effectiveness, few would be the counsel whose

performance would past muster.” Willis v. United States, 87 F.3d 1004,

1006 (8th Cir. 1996). Further, questioning Tobacco as to whether she was

a virgin or had had sex prior to the incident would have been improper

under Fed. R. Evid. 412. 

Brewer argues that his counsel was ineffective because he did not

interview and call potential defense witnesses. Brewer does not establish

ineffective assistance on this ground. By way of example, from our review

of the record, the lay witness who was not called and appears to have had

the most to offer is Margarette Vitalis, Brewer’s girlfriend. She offered

an affidavit and testimony at the evidentiary hearing on the motion for new

trial 
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that (1) Tobacco’s mother called her on the night of the incident and

claimed that Brewer and Pourier had raped Tobacco, (2) the mother stated

that on the night in question Tobacco had been “after” Brewer and had been

“all over” Brewer, and (3) the next morning, Vitalis and Pourier visited

Brewer in jail, where Brewer denied raping Tobacco, Pourier responded that

“I know you didn’t,” and Pourier said “I really f----ed up this time.”

Brewer’s trial counsel testified at the new trial hearing that prior to

trial he had spoken to Vitalis, who denied any knowledge of the relevant

facts. She told him “I don’t know anything about it.” Counsel further

testified:

And then after the jury got the case [Vitalis] came up to me in

the courtroom while we -- just after the jury got the case

after argument, and said that “[Tobacco’s mother] called me

that morning and said [Brewer and Pourier] had raped

[Tobacco].” And I said, “Why didn’t you tell me this before?”

And she said that she was related to the Tobaccos by marriage

and she didn’t want to get involved. And I said, “Well, it’s

too late now.”

The district court credited this testimony, concluding that “trial counsel

had no way of knowing that she could provide any relevant evidence.” The

district court also credited the counsel’s testimony that “he told Brewer

to bring in witnesses that he thought would have relevant information.

Brewer did not do this.” These findings are not clearly erroneous.

Further, testimony by Vitalis as to what Tobacco’s mother had told her

would have been inadmissible hearsay, and in any event testimony from the

defendant’s girlfriend would have been inherently suspect.

Brewer complains that his counsel should have called an expert to

counter the testimony of Dr. Mulder, who examined Tobacco after the

incident. At the motion for new trial, Brewer called an expert who

testified that vaginal tenderness was not inconsistent with 
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consensual sex. Mulder testified at the trial that consensual sex would

unlikely cause the vaginal tenderness he observed. However, he also

testified that he observed no vaginal bleeding, scratches or injuries. On

cross-examination, he stated that he had conducted only about ten post-rape

examinations and that he “couldn’t really speak to” whether vaginal

tenderness sometimes occurs with consensual sex. His testimony therefore

was not unequivocal. Further, as Brewer’s trial counsel explained at the

motion for new trial, vaginal tenderness was consistent with the defense

theory that Tobacco became angry with Brewer only after Pourier forced

himself on Tobacco and attempted to have sex with her. In these

circumstances, we agree with the district court that failure to hire an

expert was not unreasonable.

Brewer complains that his counsel did not adequately prepare him to

testify in his defense. Brewer’s counsel met with him several times before

the trial. Brewer’s testimony at trial was relatively brief but set out

his defense that the sex with Tobacco was consensual and that Tobacco only

became angry when Pourier also attempted to have sex with her. On appeal

Brewer argues that his counsel should have elicited more details about

Tobacco’s behavior towards him on the evening in question prior to the

sexual encounter. Brewer testified that prior to the encounter he and

Tobacco sat next to each other in a car, drank, and conversed, and that he

put his arm around her without objection. He fails to demonstrate that his

counsel’s examination fell below the standard of reasonable professional

assistance.

Brewer complains that his counsel failed to object to questions

directed (1) to Tobacco’s aunt about what Tobacco told her, (2) to Pourier

about whether he raped Tobacco, and (3) to Pourier about what Tobacco told

him. The same judge who tried the case concluded, in denying the § 2255

motion, that the statements 
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made to the aunt were admissible as excited utterances, and the questions

posed to Pourier about whether he raped Tobacco were not leading. The

questions of Pourier as to what Tobacco told him came from the court

itself. Brewer cannot show that an objection would have led to the

exclusion of any of this evidence, and cannot therefore meet the prejudice

requirement for establishing ineffective assistance of counsel.

Brewer lastly argues that his counsel was ineffective in failing to

object to improper closing argument by the prosecutor and move for a

mistrial. He contends that the prosecutor improperly urged the jury to

serve as the conscience of the community. The prosecutor stated in her

closing argument:

This case is about holding the defendant accountable for his

actions. You are the conscience of the community. It’s a big

job, but you are the people who say this is not to be

tolerated. You had sex with Jessica against her will without

her consent and you are guilty of forcibly raping her. I ask

you to be the conscience of the community and to return a just

verdict in this case. The one that justice requires is guilty.

Brewer relies on United States v. Johnson, 968 F.2d 768 (8th Cir.

1992), where we reversed a conviction in a drug case on grounds of improper

jury argument by the prosecutor. The prosecutor in Johnson argued:

[The defense attorney] says your decision to uphold the law is

very important to his client. Your decision to uphold the law

is very important to society. You’re the people that stand as

a bulwark against the continuation of what Mr. Johnson is doing

on the street, putting this poison on the street.

Id. at 769. We recognized that “[u]nless calculated to inflame, an appeal

to the jury to act as the conscience of the community is not 
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impermissible.” Id. at 770 (quoting United States v. Lewis, 547 F.2d 1030,

1037 (8th Cir. 1976)). However, we found the statement “urging the jury

to act as ‘a bulwark against . . . putting this poison on the streets’”

impermissible because it urged the jury “to encumber certain defendants

with responsibility for the larger societal problem in addition to their

own misdeeds” and to “assist in the solution of some pressing social

problem.” Johnson, 968 F.2d at 771 (quoting United States v. Monaghan, 741

F.2d 1434, 1441 (D.C. Cir. 1984)).

Johnson does not compel a new trial in this case. First, we do not

read the statement made by the prosecutor in our case as urging the jury

to assist in solving some general social problem. Although we do not

condone references to the conscience of the community by the prosecutor,

here she made the comment in the context of an argument directed solely at

the defendant, urging the jury to “say this is not to be tolerated. You

had sex with Jessica against her will without her consent and you are

guilty of forcibly raping her.” 

Second, Johnson was a direct appeal. We stated that the standard of

review was whether the error was harmless beyond a reasonable doubt.

Johnson, 968 F.2d at 772. On habeas review, however, we apply the

Strickland test to counsel’s failure to object to alleged improper

argument, as we recently did in Seehan v. State of Iowa, 72 F.3d 607 (8th

Cir. 1995) (en banc), cert. denied, 116 S. Ct. 1578 (1996). Under the

first prong of Strickland, we emphasized in Seehan the strong presumption

that the challenged conduct of counsel might be considered sound trial

strategy. Id. at 611. In the pending case Brewer’s counsel testified that

he did not object to the closing argument because such objections irritate

the jury. We have recognized that the 
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“decision to object during prosecutor’s summation must take into account

the possibility that the court will overrule it and the objection will

either antagonize the jury or underscore the prosecutor’s words in their

minds.” Bussard v. Lockhart, 32 F.3d 322, 324 (8th Cir. 1994). We agree

with the district court’s conclusion that the failure to object here fell

within the wide range of professionally competent assistance.

Moreover, Brewer does not meet the second requirement under

Strickland of showing that the error if any in failing to object to the

prosecutor’s comment was “so serious as to deprive the defendant of a fair

trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687.

As to the other allegedly improper comments made in closing argument,

we agree that they are not grounds for a new trial for essentially the same

reasons noted by the district court.

Affirmed.

A true copy.

Attest:

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