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UNITED STATES OF AMERICA,       *     [NOT TO BE PUBLISHED]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 court1 denied the
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




     *
     The HONORABLE THOMAS M. REAVLEY, United States Circuit Judge
for the United States Court of Appeals, Fifth Circuit, sitting by
designation.
     1
      The Honorable Richard H. Battey, Chief Judge, United States
District Court for the District of South Dakota.
underlying predicate facts under the clearly erroneous standard.          Reed v.
United States, 

, 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, 

, 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.   

      “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.”

.     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, 

, 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, 

, 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




                                      -2-
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 cross-
examining 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, 

,
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




                                    -3-
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




                                   -4-
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




                                        -5-
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, 

(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.

   We recognized that “[u]nless calculated to inflame, an appeal
to the jury to act as the conscience of the community is not




                                     -6-
impermissible.”      

(quoting United States v. Lewis, 

,
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.”    

(quoting United States v. Monaghan, 

, 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.

.          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, 

(8th
Cir. 1995) (en banc), cert. denied, 

(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.    

   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




                                         -7-
“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, 

, 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.”       

.


     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.




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