                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 05-2905
                                  ___________

Oakley Bernard Engesser,               *
                                       *
             Appellant,                *
                                       * Appeal from the United States
       v.                              * District Court for the
                                       * District of South Dakota.
Bob Dooley, Warden, Mike Durfee        *
State Prison; Larry Long, Attorney     *
General of the State of South Dakota, *
                                       *
             Appellees.                *
                                   __________

                            Submitted: March 24, 2006
                               Filed: August 2, 2006
                                ___________

Before RILEY, BRIGHT, and SMITH, Circuit Judges.
                             ___________

RILEY, Circuit Judge.

       This is a habeas corpus case. See Antiterrorism and Effective Death Penalty
Act (AEDPA), 28 U.S.C. § 2254. After a jury convicted Oakley Bernard Engesser
(Engesser) on August 30, 2001, of one count of vehicular homicide and two counts of
vehicular battery, a South Dakota state court sentenced Engesser to fifteen years’
imprisonment on the homicide charge, and ten years’ imprisonment on the battery
charges, with one ten-year sentence running consecutively, and the other running
concurrently. The South Dakota Supreme Court affirmed the convictions and
sentence, and affirmed the denial of Engesser’s motion for post-conviction relief.
State v. Engesser, 661 N.W.2d 739 (S.D. 2003); see Engesser v. Weber, Civ. 03-408
(S.D. Cir. Ct. Apr. 20, 2004), aff’d, (S.D. July 9, 2004). Engesser timely filed an
application for a writ of habeas corpus under 28 U.S.C. § 2254. The district court1
denied habeas relief, concluding (1) the prosecutor did not violate Engesser’s due
process rights by (a) eliciting opinion testimony from State Trooper Edward Fox
(Trooper Fox) that Engesser lied during a videotaped denial, and (b) commenting on
Trooper Fox’s testimony during closing argument; (2) Engesser failed to show he
received ineffective assistance of counsel; and (3) the warrantless seizure of
Engesser’s blood to conduct a blood alcohol content (BAC) test did not violate
Engesser’s Fourth Amendment rights. We affirm.

I.    BACKGROUND
      On the early evening of July 30, 2000, the Corvette in which Engesser and
Dorothy Finley (Finley) were traveling collided with a van on Interstate 90 between
Sturgis and Rapid City, South Dakota. The Corvette, traveling over 100 miles per
hour when it struck the van, rolled several times and came to rest on its roof in the
highway’s median. The collision crushed the Corvette’s passenger side.

       With the Corvette lying on its roof, Finley was lodged underneath and in line
with the passenger seat, and her feet were underneath the passenger side dash.
Emergency responders used the Jaws of Life to extract Finley from the Corvette’s
driver’s side because they could not open the passenger side door. Finley was
pronounced dead at the scene. Engesser was thrown from the car. A responder to the
scene found Engesser smelling of alcohol about six to ten feet from the Corvette’s
open driver’s side door. An ambulance transported Engesser to the hospital.



      1
        The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota, adopting, after independent review, the report and recommendation
of the Honorable Marshall P. Young, United States Magistrate Judge for the District
of South Dakota.

                                         -2-
       Trooper Fox led the accident’s investigation. After examining the scene and
receiving an erroneous report from a paramedic that Finely was found in the driver’s
seat, Trooper Fox went to the hospital to interview Engesser. Engesser was largely
incoherent, but he denied he had been driving the Corvette. Trooper Fox noticed a
strong odor of alcohol emanating from Engesser. Without a warrant or Engesser’s
permission, Trooper Fox ordered blood extracted from Engesser for a BAC test just
“as a precaution.”2 Trooper Fox ordered the BAC test because a death was involved,
Engesser exhibited an odor of alcohol, the exigent circumstances required action to
obtain a usable blood sample, and the driver’s identification was not conclusive.
However, later that evening, Trooper Fox completed two reports indicating Finley was
the Corvette’s driver. Trooper Fox testified he believed further investigation into the
vehicle’s driver was necessary, and he listed Finley as the driver because she was the
Corvette’s owner and usual driver.3

       About six weeks after the accident, Trooper Fox conducted a videotaped
interview of Engesser, during which Engesser again denied driving the Corvette. The
next day, Trooper Fox completed his report, concluding Engesser was the driver.
Seven months later, in February 2001, Engesser was charged with vehicular homicide,
second-degree manslaughter, and two counts of vehicular battery.

      Before trial, Engesser moved to suppress the BAC test result, but the trial court
denied the motion. The central issue at trial was whether Engesser or Finley was


      2
       The test later revealed Engesser’s BAC was .081, and extrapolated back to the
time of the accident would have been .125, according to the prosecution’s testifying
chemist.
      3
       At trial, Trooper Fox testified that before Engesser’s blood was drawn, the
paramedic who had erroneously informed Trooper Fox at the accident scene of
Finley’s body’s location in the Corvette corrected himself and stated Finley’s body
was found in the passenger seat, but Trooper Fox also testified he learned this
information “[i]n the weeks following” the accident.

                                         -3-
driving the Corvette. At trial, the prosecution played Trooper Fox’s videotaped
interview of Engesser in its entirety. After the tape was played, the trial court allowed
Trooper Fox to testify as to his opinion on Engesser’s truthfulness during the
interview. The following exchange took place:

      Q:      (by prosecutor) When you spoke to the defendant at that
              September 13th interview you said, “I don't necessarily think
              you’re lying.” Did you think he was lying to you?

           DEFENSE COUNSEL: Objection as to relevancy, Your Honor.
           THE COURT: Overruled.

      A:      Yes.
      Q:      What did you base that on?
      A:      My experience in interviewing people.
      Q:      Okay. And what about his conversation with you did you–what
              about that conversation made you believe he was lying?

           DEFENSE COUNSEL: Objection . . . that’s argumentative, it calls
           for speculation, and it’s more prejudicial than probative, it’s the
           ultimate issue.
           (Whereupon, there was an off the record discussion)

      Q:      I believe my question was, what about the interview made you
              believe he wasn’t telling you the truth?
      A:      There were numerous things during the interview.

           DEFENSE COUNSEL: Could I have a standing objection as to those
           matters, Your Honor?
           THE COURT: Yes.

      Q:      Such as?
      A:      One thing right off the bat you noted on the interview that before
              I had even asked him a question he went into a rather lengthy
              explanation that seemed rehearsed to me . . . and that initially right
              off the bat struck me because it’s not often that when you meet

                                           -4-
             with somebody they volunteer a lot of stuff. In fact normally it’s
             just the opposite, when I meet with someone in my job capacity
             most people–
      ....
      Q:   What else was it about your interview with him that led you to
           believe that he wasn’t telling you the truth?
      A:   Well, one fact that I knew to be a lie, he told me that he had had
           two drinks all day, and I knew that was a lie.
      Q:   How did you know that?
      A:   Because I knew his blood results.
      ....
      Q:   With respect then to anything else that you believed that he
           was–or, anything else regarding your conversation with him that
           led you to believe that he wasn’t telling you the truth?
      A:   Several times during the interview if you pay close attention
           you’ll note that when I ask him a question he will start to answer
           it and then stop and edit what he was going to say.

       During closing argument, the prosecutor also briefly alluded to Trooper Fox’s
opinion testimony: “Ladies and gentlemen, you heard that based on Trooper Fox’s
training and experience he didn’t believe that the defendant was telling the truth.” The
context of the prosecutor’s comment was whether Engesser’s videotaped statement
that Finley liked to drive fast was believable.

       A jury convicted Engesser of vehicular homicide and two counts of vehicular
battery. After South Dakota state courts denied his direct and post-conviction appeals,
Engesser sought habeas relief in federal district court, which also denied relief.
Engesser’s appeal brings the case before this court.

II.    DISCUSSION
       “In an appeal of a habeas petition, [w]e review the district court’s findings of
fact for clear error and its conclusions of law de novo.” Hall v. Luebbers, 341 F.3d
706, 712 (8th Cir. 2003) (citation omitted). For habeas relief under 28 U.S.C. § 2254,


                                          -5-
an applicant must demonstrate the state court’s adjudication “(1) resulted in a decision
that was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States,” or “(2)
resulted in a decision that was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
A decision is “contrary to” federal law “if the state court arrives at a conclusion
opposite to that reached by [the Supreme] Court on a question of law” or if it
“confront[ed] facts that are materially indistinguishable from a relevant Supreme
Court precedent” but arrived at an opposite result. Williams v. Taylor, 529 U.S. 362,
405 (2000). A state court “unreasonably applies” federal law when it “identifies the
correct governing legal rule from [the Supreme] Court’s cases but unreasonably
applies it to the facts of the particular state prisoner’s case,” or “unreasonably extends
a legal principle from our precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context where it should apply.”
Id. at 407.

       A federal court may not issue the writ simply because it “concludes in its
independent judgment that the relevant state-court decision applied clearly established
federal law erroneously or incorrectly. Rather, that application must also be
unreasonable.” Id. at 411. “In other words, the state court’s application might be
erroneous in our independent judgment without being ‘objectively unreasonable.’”
Clemons v. Luebbers, 381 F.3d 744, 750 (8th Cir. 2004) (quoting Wiggins v. Smith,
539 U.S. 510, 521 (2003)). The South Dakota trial court, supreme court, and habeas
court, applying South Dakota and applicable federal law, found no reversable error.
The federal district court denied habeas relief. Engesser faces a high hurdle to
establish these several judicial decisions were contrary to or involved an unreasonable
application of clearly established federal law or were unreasonable determinations of
the facts in light of the evidence presented.




                                           -6-
      A.      Trooper Fox’s Opinion Testimony on Engesser’s Credibility
      Engesser argues the district court should have set aside his conviction as
contrary to or an unreasonable application of federal law because the state trial court’s
decision to allow the prosecutor to elicit opinion testimony from Trooper Fox that
Engesser lied during a videotaped denial and the prosecutor’s comments during
closing argument violated Engesser’s due process rights.4 An expert may not opine
on another witness’s credibility. Bachman v. Leapley, 953 F.2d 440, 441 (8th Cir.
1992) (citation omitted). “If such testimony is admitted, we must decide whether the
wrong is of a constitutional dimension; that is, whether it is so prejudicial as to be
fundamentally unfair, thus denying the defendant a fair trial.” Id. (citation omitted).

       On direct appeal, the South Dakota Supreme Court acknowledged the trial
court’s admission of Trooper Fox’s testimony was “troublesome,” but ultimately held,
to the extent Engesser had not waived this issue by his counsel’s incorrect objections
to Trooper Fox’s testimony, the testimony’s admission was harmless error. Engesser,
661 N.W.2d at 750-51. The court reasoned the questioning’s purpose was to allow
Trooper Fox “to correct any misimpression the jurors might have taken” from Trooper
Fox’s remark during his interview of Engesser (“I don’t necessarily think you’re
lying”), “not to give the jury [Trooper Fox]’s assessment of Engesser’s character or
overall credibility.” Id. at 750. The court further reasoned the jurors were instructed


      4
        Engesser argues AEDPA does not apply to his habeas application because the
state court did not adjudicate his federal due process claim on its merits. See Brown
v. Luebbers, 371 F.3d 458, 462 (8th Cir. 2004) (holding state court adjudicated due
process claim on the merits when it cited to relevant federal law and invoked the
governing standard, even though state court’s brief discussion of claim was devoted
to the state law evidentiary question). Engesser’s argument fails. In addressing this
claim, the South Dakota Supreme Court held any error was harmless, citing the South
Dakota state law equivalent of Federal Rule of Criminal Procedure 52(a). Engesser, 661
N.W.2d at 751 (citing S.D.C.L. 23A-44-14); see Fed. R. Crim. P. 52(a); see also United
States v. Triplett, 195 F.3d 990, 996-97 (8th Cir. 1999). We therefore conclude the
state court adjudicated Engesser’s federal due process claim on the merits.

                                          -7-
they were the sole judges of witness credibility, and “South Dakota jurors are not
likely to surrender their own assessment of the evidence, especially when a court
instructs them that it is their duty to decide for themselves.” Id. at 751.

       Engesser relies on three Eighth Circuit decisions in claiming the state court’s
decision was improper. See Maurer v. Dep’t of Corr., 32 F.3d 1286 (8th Cir. 1994);
Bachman, 953 F.2d 440; United States v. Roy, 843 F.2d 305 (8th Cir. 1988); see also
Atley v. Ault, 191 F.3d 865, 871 (8th Cir. 1999) (“To the extent that ‘inferior’ federal
courts have decided factually similar cases, reference to those decisions is appropriate
in assessing the reasonableness of the state court’s resolution of the disputed issue.”).

       These three cases do not demonstrate the state court’s decision was contrary to
or an unreasonable application of federal law. First, Bachman was a habeas appeal
of a rape conviction where an expert testified at trial as to the credibility of the
victims’ statements about the defendant’s conduct. The appellate court found
harmless error in allowing the expert to opine on the believability of the victims’
stories based on the “degree of latitude in the admission of expert testimony in rape
and sexual abuse cases.” Bachman, 953 F.2d at 442. The state court in Engesser’s
case found the admission of Trooper Fox’s testimony harmless; Bachman found the
admission of the expert’s testimony in that case harmless. Thus the state court’s
decision here was not opposite or contrary to a decision of the Supreme Court or this
court. Further, the South Dakota Supreme Court reasonably chose not to extend the
principle in Bachman, which expressly relied on the case involving rape, to its own
non-rape context. Id. at 442.

      Second, Roy was a direct appeal of a murder conviction where a Federal Bureau
of Investigations agent testified at trial about the truthfulness of the defendant’s
accomplices’ out-of-court statements. The appellate court found harmless error in
allowing the agent to offer an opinion on the believability of the accomplices’
statements, given (1) there was minimal foundation laid that the agent had training on
divining truth; (2) the agent testified “his touchstone for truth or falsity was only the
                                            -8-
common sense notion that if several persons’ stories are consistent in minute detail,
they are likely to be true”; (3) the agent’s conclusions were attacked at length on
cross-examination; and (4) the evidence against the defendant was overwhelming.
Roy, 843 F.2d at 309. Again, the state court in Engesser’s case found the admission
of Trooper Fox’s testimony harmless; Roy found the admission of the agent’s
testimony in that case harmless. Thus the state court’s decision here was not opposite
or contrary to a decision of the Supreme Court or this court. Further, the state court
reasonably chose not to extend the principle in Roy to Engesser’s case. While
Engesser’s case may appear more egregious than Roy (here, some foundation was laid
for Trooper Fox’s opinion, and his conclusion was not attacked on cross), and thus the
state court may have been incorrect, we hold the state court was not unreasonable,
given the strength of the case against Engesser and the jury instructions on witness
credibility. See Williams, 529 U.S. at 410 (“[A]n unreasonable application of federal
law is different from an incorrect application of federal law.”).

      Third, Maurer was a habeas appeal of a rape case where during trial, which
“was essentially a credibility contest” between the defendant and the victim, the
prosecution called four witnesses to testify about their conversations with the victim
about the incident. Maurer, 32 F.3d at 1288. The court held, “[g]iven the closeness
of the case, the state of the evidence, and the manner in which the improper
‘vouching’ testimony was repeatedly solicited and reemphasized in the closing
argument,” the testimony was not harmless. Id. at 1290. Maurer is not contrary to the
South Dakota court’s decision here because the facts are materially distinguishable.
The case against Engesser was not close, the physical evidence made Engesser’s case
more than just a credibility contest between Engesser and Trooper Fox, and the
prosecution only briefly, in one sentence during closing argument, referenced Trooper
Fox’s testimony.

      In sum, based on our review of the applicable cases, we conclude Engesser fails
to show the state court’s decision was contrary to or an unreasonable application of
federal law. See 28 U.S.C. § 2254(d)(1).
                                         -9-
       Finally, we agree with the state court’s acknowledgment that admission of
Trooper Fox’s testimony was “troublesome.” Our independent judgment on
admissibility in the first instance and on harmless error review may have been
different. But, with the deference to state court determinations required by AEDPA
and based on our thorough review of the record, we hold the state court did not
unreasonably apply the harmless error standard to the facts. We therefore hold
Engesser fails to meet his heavy AEDPA burden to show the state court’s adjudication
resulted in a decision based on an unreasonable determination of the facts in light of
the evidence. See id. § (d)(2).

        B.    Ineffective Assistance of Counsel
        Engesser next argues his conviction should be set aside because the state habeas
court’s decision that Engesser’s counsel was not ineffective was contrary to or an
unreasonable application of federal law. Engesser claims his counsel was ineffective
by not properly objecting to Trooper Fox’s testimony and by failing to object to the
prosecutor’s closing argument allusion to that testimony. Engesser’s counsel objected
to Trooper Fox’s testimony “as to relevancy” and on the grounds the testimony was
“argumentative, it calls for speculation, and it’s more prejudicial than probative, it’s
the ultimate issue.” Engesser contends his counsel should have said the testimony was
improper opinion testimony on another witness’s credibility.5 See Olesen v. Class,
164 F.3d 1096, 1102 (8th Cir. 1999).

       To prevail on an ineffective assistance of counsel claim, Engesser must
demonstrate counsel’s performance was deficient and Engesser was prejudiced by that
deficient performance. See Strickland v. Washington, 466 U.S. 668, 687 (1984).
Prejudice exists if “there is a reasonable probability that, but for counsel’s


      5
       Trial counsel’s objections may have missed the improper opinion ground, but
the speculation objection and the objection that the prejudicial effect of the testimony
outweighed its probative value were each proper objections and reasonably should
have brought the evidentiary problem to the trial court’s attention.
                                         -10-
unprofessional errors, the result of the proceeding would have been different.” Id. at
694.

       Engesser relies on one Eighth Circuit case, Olesen, and one Seventh Circuit
case, Earls v. McCaughtry, 379 F.3d 489 (7th Cir. 2004), to support his claim. In
Olesen, a habeas appeal, the defendant argued his trial counsel was ineffective by
failing to object to the opinion testimony of a prosecution witness, a psychologist who
had counseled the victim and who opined that the victim would not fabricate a story
involving sexual abuse. The court held, “given the state of South Dakota’s
evidentiary rules and case law at the time of [Olesen’s] trial, a reasonably prudent
lawyer would have objected to [the witness’s] opinion testimony.” Olesen, 164 F.3d
at 1102. The court went on to hold, however, that the “deficient performance by Mr.
Olesen’s trial counsel [did not] render[] ‘the result of the trial unreliable or the
proceeding fundamentally unfair.’” Id. (citation omitted). The court so held because
(1) the prosecution offered the opinion testimony on rebuttal to counter defense
witnesses who had attacked the victim’s credibility, (2) the testimony was brief,
(3) defense counsel effectively cross-examined the witness, and (4) the prosecution
did not mention the testimony in closing arguments. Id. The state court in Engesser’s
case found the performance of Engesser’s attorney was not prejudicial, and Olesen
found the same with respect to that defendant’s attorney, thus the state court’s
decision was not opposite or contrary to a decision of the Supreme Court or this court.
Further, the state court was not unreasonable in not extending the principle in Olesen.
While Engesser’s case seems more egregious than Olesen (here, the prosecutor offered
the opinion testimony on direct, defense counsel did not cross-examine the witness,
and the prosecution mentioned the testimony briefly during closing), and thus the state
court may have been incorrect in not following Olesen, the state court was not
unreasonable, given the strength of the case against Engesser, and Engesser’s failure
to show but for his counsel’s performance he would have been found not guilty. See
Williams, 529 U.S. at 410.



                                         -11-
       In Earls, defense counsel failed to object to a witness whose testimony “was
pivotal–indeed, the jury asked for a transcript of her videotaped interview [with the
child sexual assault victim] to consider while they deliberated.” Earls, 379 F.3d at
496. Engesser’s case is materially distinguishable. Here, Trooper Fox’s opinion
testimony, clarifying his comment on the videotape, was not pivotal. While the
prosecutor urged the jury to listen to the taped interview, Engesser cannot show the
jury followed this advice. The other evidence against Engesser was considerable and
persuasive.

       Finally, Engesser’s attorney explained he decided as a matter of strategy not to
object to the prosecution’s brief reference in closing to Trooper Fox’s opinion,
avoiding any emphasis on the opinion testimony. The state court found that strategy
was not deficient. Engesser fails to demonstrate counsel’s strategy was deficient or
that prejudice resulted from his counsel’s strategy.

      We affirm the district court in holding the state court’s decision on whether
Engesser’s counsel was ineffective was not contrary to or an unreasonable application
of federal law. See 28 U.S.C. § 2254(d)(1).6

      C.    Admission of BAC Test Result
      Engesser argues the state court’s decision that Trooper Fox did not violate his
Fourth Amendment rights by taking his blood without a warrant or consent was
improper. “[A] warrantless blood test, performed without consent, is presumptively
unreasonable unless the state actors involved had probable cause and exigent
circumstances sufficient to justify it.” Marshall v. Columbia Lea Reg’l Hosp., 345
F.3d 1157, 1172 (10th Cir. 2003); see also Cupp v. Murphy, 412 U.S. 291, 296


      6
        Engesser does not argue the state court’s adjudication of his ineffective
assistance of counsel claim resulted in a decision based on an unreasonable
determination of the facts in light of the evidence. See 28 U.S.C. § 2254(d)(2). We
therefore need not address AEDPA’s second prong.
                                          -12-
(1973); Schmerber v. California, 384 U.S. 757, 769-70 (1966). There is no question,
and Engesser does not challenge, that given the evanescent nature of blood alcohol
evidence, exigent circumstances existed to draw Engesser’s blood. We therefore only
address probable cause. “To determine the existence of probable cause, we look at the
totality of the circumstances as set forth in the information available to the officers at
the time of arrest.” United States v. Kelly, 329 F.3d 624, 628 (8th Cir. 2003) (citing
Illinois v. Gates, 462 U.S. 213, 230-39 (1983)). Probable cause exists when “the
available facts and circumstances are sufficient to warrant a person of reasonable
caution to believe that an offense was being or had been committed.” Id. (citing
Dunaway v. New York, 442 U.S. 200, 208 n.9 (1979)).

      The state supreme court’s discussion of the facts demonstrating probable cause
show the state court’s decision was not unreasonable. At the time Engesser’s blood
was drawn, Trooper Fox had available the following facts: (1) Engesser was found
lying approximately six to ten feet from the Corvette’s driver’s side door,
(2) emergency responders had to use the Jaws of Life to extricate Finley because they
could not open the Corvette’s severely damaged passenger side door,7 (3) Finley was
pronounced dead at the scene, (4) Trooper Fox detected a strong odor of alcohol
emanating from Engesser, (5) the Corvette had been traveling at a high rate of speed
when the collision occurred, and (6) exigent circumstances existed to preserve any
BAC test evidence. Engesser, 661 N.W.2d at 748.

       While there is some question as to the information Trooper Fox had at the time
Engesser’s blood was drawn regarding where Finley was found in the Corvette (that
is, when the paramedic corrected his misstatement to Trooper Fox that Finley was in
the driver’s side), we believe the above facts alone are sufficient such that an officer
of reasonable caution would believe Engesser had committed an offense.
Furthermore, Trooper Fox’s subjective beliefs about who he thought was driving are


      7
       The state supreme court erroneously stated emergency crews extricated Finley
from the passenger side of the vehicle.
                                        -13-
not relevant to a probable cause inquiry. See Scott v. United States, 436 U.S. 128, 138
(1978) (“[T]he fact that the officer does not have the state of mind which is
hypothecated by the reasons which provide the legal justification for the officer’s
action does not invalidate the action taken as long as the circumstances, viewed
objectively, justify that action.”).

III.   CONCLUSION
       We affirm the district court’s denial of habeas relief.

BRIGHT, Circuit Judge, dissenting.

       I dissent. When an automobile driven at a high rate of speed rolls over, who
knows where the occupants' bodies will end up? The majority's position fails on that
uncertainty. Although the majority suggests otherwise, the prosecution produced no
strong evidence that Engesser rather than Finley was the driver. No observers
witnessed the accident, and the parties presented inconclusive circumstantial evidence.
Both Finley and Engesser sustained injuries on the right sides of their bodies, which
would be consistent with injuries suffered by one in the passenger seat. One witness
stated that authorities found Finley with her legs under the dash and her face turned
toward the driver's side; yet another testified that her legs pointed to the back of her
car and her head toward the front.

        In addition, a highway patrol accident reconstructionist testified that in a high-
speed rollover bodies can be thrown "all over the place in [the] vehicle." More than
one witness testified that, during a rollover, a passenger could be ejected through the
passenger-side window and end up on the driver's side of the car. Further, a witness
testified it would have been possible for the driver of a vehicle to end up in the
passenger's seat during a high-speed rollover. Even the state's forensic expert could
not opine whether Finley was the passenger or the driver.



                                          -14-
       Given the closeness of the case and the uncertainty of the evidence, I must
respectively dissent. The defendant in my opinion was unjustly convicted. He
deserves a new trial. I would hold that the state court made a decision that was
contrary to or involved an unreasonable application of clearly established federal law
when it determined that the admission of Trooper Fox's testimony was harmless error
and that Engesser did not receive ineffective assistance of counsel. I would also hold
that the state violated Engesser's due process rights by taking a blood test without
probable cause.

      First, Engesser properly demonstrated that the state court's decision was
contrary to or involved an unreasonable application of established federal law.
Everyone concedes that the admission of Trooper Fox's testimony violated established
law everywhere, even in the Supreme Court. The majority concludes that, although
troublesome, this error does not require a new trial because it was harmless. The
majority applies the wrong harmless-error standard.

       In Brecht v. Abrahamson, 507 U.S. 619 (1993), the United States Supreme
Court made clear that the harmless-error standard to apply in habeas corpus
proceedings is the standard enunciated in Kotteakos v. United States, 328 U.S. 750
(1946). In applying the Kotteakos standard, "[t]he habeas court cannot ask only
whether it thinks the petitioner would have been convicted even if the constitutional
error had not taken place . . . . It requires a reviewing court to decide that 'the error
did not influence the jury,' and that 'the judgment was not substantially swayed by the
error.'" Brecht, 507 U.S. at 642 (Stevens, J., concurring) (citing Kotteakos v. United
States, 328 U.S. 750, 764-65 (1946)).

      This court cannot conclude that the error in admitting Trooper Fox's testimony
did not influence the jury or sway the verdict. Essentially, the prosecution made
Trooper Fox its lie detector to counter the defendant's claim that he was not the driver.
No other evidence could definitively prove whether Engesser was truthful in claiming
he was not the driver. A jury likely would give great weight to the opinion of a law
                                          -15-
enforcement officer, particularly a highway patrol officer. This is especially true
when, as here, the patrol officer indicated that he had gained the ability to assess
character and credibility through the sheer number of interviews he has conducted.

         The Supreme Court directs us to discern "what effect the error . . . reasonably
. . . had upon the jury's decision." Kotteakos, 328 U.S. at 764. It is quite clear that the
admission of Trooper Fox's testimony had a substantial effect on the jury's decision.
Engesser deserves a new trial.

       Second, the state court should have held that Engesser received ineffective
assistance of counsel. Its decision was contrary to or involved an unreasonable
application of federal law. Any trial lawyer worth his salt should know the rules of
evidence and how to make a proper objection. The Trooper Fox objection, "not
relevant", was off the mark. The evidence may have been relevant, but all would
agree it was inadmissible. The Fox opinion never should have been admitted into
evidence. The defense counsel made the wrong objection, and in doing so did not call
the trial court's attention to the great harm in having the witness, a highway patrol
officer whose testimony would have considerable credibility, opine that the defendant
lied. Not only did Engesser's lawyer not properly object to this testimony when it was
first admitted, he failed to say anything at all when it was re-emphasized in closing
argument. An effective lawyer would never have allowed this error in the first
instance, and certainly would not have allowed it to remain as evidence of record.

       The majority acknowledges that the state court may have been incorrect in not
following Olesen v. Class, 164 F.3d 1096 (8th Cir. 1999), but holds that Engesser's
ineffective assistance claim nonetheless fails because Engesser does not show
prejudice. I disagree. Because the parties presented such evenly divided evidence,
Trooper Fox produced pivotal testimony. Had Engesser's lawyer made the proper
objection and the court excluded the testimony, "there is a reasonable probability that
. . . the result of the proceeding would have been different." Strickland v.
Washington, 466 U.S. 668, 694 (1984).
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       Finally, the state court improperly determined that the police had probable
cause to draw Engesser's blood. Although Trooper Fox may have had probable cause
to believe Engesser had been drinking, because he exuded a strong odor of alcohol,
he lacked probable cause to believe that Engesser drove the Corvette. At the time he
made the decision to draw Engesser's blood, Trooper Fox knew that authorities had
found Engesser on the driver's side of the car and that they had extracted Finley from
the more damaged, passenger's side of the car and pronounced her dead at the scene.
He also knew that the Corvette had been traveling at a high rate of speed. Given the
knowledge that bodies can be thrown all over the place in high-speed rollovers, the
placement of Engesser's and Finley's bodies after the accident would not have given
Trooper Fox probable cause to believe Engesser was driving the Corvette. Because
no probable cause existed, Trooper Fox violated Engesser's Fourth Amendment rights
when he drew Engesser's blood without a warrant or consent.

      This case presents a flawed conviction. In the interests of justice and under the
law, Engesser is entitled to relief under the writ of habeas corpus as it now exists.
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