                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 98-2449
                                     ___________

Yvette M. Louisell,                       *
                                          *
             Appellant,                   *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Southern District of Iowa.
Director of Iowa Department of            *
Corrections,                              *
                                          *
             Appellee.                    *
                                     ___________

                               Submitted: February 8, 1999

                                    Filed: June 2, 1999
                                     ___________

Before WOLLMAN,1 LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                            ___________

WOLLMAN, Chief Judge.

       Yvett e M. Louisell appeals from the district court’s2 denial of her petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254. We affirm.



      1
        Roger L. Wollman became Chief Judge of the United States Court of Appeals
for the Eighth Circuit on April 24, 1999.
      2
      Th e Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.
                                            I.

       In the fall of 1987, Louisell was a seventeen year-old college freshman who
worked part-time as a nude model for a college art course. Keith Stillwell, one of the
art students, befriended Louisell and often hired her to model in his home. Stillwell
was a paraplegic who walked with two canes or crutches and had limited use of his
hands. While at Stillwell’s home for a modeling session on December 6, 1987, Louisell
fatally stabbed Stillwell and took his wallet. She was apprehended the next day while
attempting to use Stillwell’s credit card to make a purchase.

        Louisell was charged with one count of first-degree murder and three counts of
forgery. See Iowa Code §§ 707.1, 707.2, and 715A.6 (1987). At trial, Louisell
testified that she had stabbed Stillwell in self-defense after he attempted to rape her and
that she had then stolen his wallet to make it look like a robbery. The jury convicted
Louisell on all counts, and she was sentenced to life imprisonment. Her conviction was
affirmed on direct appeal by the Iowa Court of Appeals, see State v. Louisell, No.
10258 (Iowa Ct. App. April 24, 1990), and further review was denied by the Iowa
Supreme Court. Louisell filed an application for state post-conviction relief, which was
denied on April 9, 1993.

       Louisell then filed this petition for habeas corpus pursuant to 28 U.S.C. §
2254.3 The district court denied the petition, but issued a certificate of appealability
with respect to certain issues. See 28 U.S.C. § 2253.




      3
       In light of our recent holding in Nichols v. Bowersox, Nos. 97-3639/97-3640,
slip op. (8th Cir. Apr. 13, 1999) (en banc), we agree with the district court that
Louisell’s petition was timely filed.

                                           -2-
                                             II.

                                             A.

      Louisell first asserts that the jury instructions relating to the justification defenses
under Iowa law violated her due process rights under the Fourteenth Amendment. She
argues that the instructions required the jury to consider what a reasonable person
would have done under the circumstances and thereby discouraged the jury from
considering what force she felt was necessary to defend herself.

       The formulation of jury instructions primarily concerns the application and
interpretation of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (stating
that a federal habeas court is not to “reexamine state-court determinations on state-law
questions”). A finding that a jury instruction is permissible under state law, however,
does not determine whether due process has been violated under federal law. See id.
at 68; Seiler v. Thalacker, 101 F.3d 536, 539 (8th Cir. 1996).

       Habeas corpus relief may be granted only when an erroneous jury instruction
constituted “a fundamental defect” that resulted “in a complete miscarriage of justice,
[or] an omission inconsistent with rudimentary demands of a fair trial.” Crump v.
Caspari, 116 F.3d 326, 327 (8th Cir. 1997) (quoting Hill v. United States, 368 U.S.
424, 428 (1962)); accord Berrisford v. Wood, 826 F.2d 747, 752 (8th Cir. 1987). We
conclude that no constitutional violation occurred in this case. See Cupp v. Naughten,
414 U.S. 141, 146-47 (1973). The instructions were not misleading. See Boyde v.
California, 494 U.S. 370, 380 (1990). They conveyed to the jury that the state was
required to prove the existence of every fact to constitute the crime charged beyond a
reasonable doubt. See In re Winship, 397 U.S. 358, 363 (1970). They also instructed
the jury to consider all of the evidence, “including the evidence going to self-defense,”
in deciding whether there was “a reasonable doubt about the sufficiency of the state’s
proof of the elements of the crime.” Martin v. Ohio, 480 U.S. 228, 234 (1987).

                                             -3-
                                            B.

       Louisell next argues that her due process rights were violated when the trial court
refused her request to present surrebuttal argument. During its closing argument, the
state reviewed the trial testimony, the physical evidence, and several jury instructions,
and then argued that Louisell’s version of the events was unreasonable. Louisell’s
counsel then argued on her behalf, emphasizing her age and moral character and noting
that the state had failed to present any theory of the case. In rebuttal, the state
proposed a theory of the case, offered a motive for the crime, and questioned the
sincerity of Louisell’s testimony. Defense counsel then requested an opportunity to
present surrebuttal argument, arguing that the state’s rebuttal argument presented new
issues.

        The state is not required to present a “‘theory of the case’” in its opening
argument “in the sense that it must endeavor to explain the meaning of every piece of
evidence.” United States v. Sarmiento, 744 F.2d 755, 766 (11th Cir. 1985). The scope
of the state’s rebuttal is determined by the content of the defendant’s closing argument.
See id. The state’s rebuttal argument responded to defense counsel’s invitation to
proffer an explanation of the crime, and thus the trial court’s refusal to allow surrebuttal
argument did not deprive Louisell of due process.

                                            C.

       After she was arrested for attempting to use Stillwell’s credit card, Louisell was
taken to the police station. In light of Louisell’s age, police officers called Louisell’s
grandmother and legal guardian, Ethel Epps, to obtain permission to question Louisell.
After Ms. Epps granted the police officers such permission, she asked to speak with
Louisell. During Louisell’s conversation with her grandmother, police overheard her
make statements about finding a wallet with credit cards in it. The officers were


                                            -4-
permitted to testify about these statements. Louisell contends that the admission of
those statements violated her Fifth Amendment rights.

       To be protected by the Fifth Amendment, the statements must have been made
while in police custody and in response to police interrogation, see Miranda v. Arizona,
384 U.S. 436 (1966), or its “functional equivalent.” Rhode Island v. Innis, 446 U.S.
291, 300-01 (1980). In determining whether the statements were the result of an
interrogation, we focus on Louisell’s perception of the attending circumstances. See
Boykin v. Leapley, 28 F.3d 788, 792 (8th Cir. 1994). “Any statement given freely and
voluntarily without any compelling influences is, of course, admissible in evidence.”
Miranda, 384 U.S. at 478. Although Louisell was no doubt in police custody, the
circumstances surrounding her telephone conversation with her grandmother do not
suggest that the officers called Ms. Epps with an intent to elicit incriminating
statements from Louisell. Louisell was not “subjected to compelling influences,
psychological ploys, or direct questioning” from police officers, Arizona v. Mauro, 481
U.S. 520, 529 (1987), and thus the admission of her statements to her grandmother did
not violate her Fifth Amendment rights.

                                            D.

      Lastly, Louisell advances several arguments in support of her contention that she
was denied a fair trial in violation of her Sixth Amendment rights because of
prosecutorial misconduct. As a general rule, “[p]rosecutorial misconduct does not
warrant federal habeas relief unless the misconduct infected the trial with enough
unfairness to render [petitioner’s] conviction a denial of due process.” Roberts v.
Bowersox, 137 F.3d 1062, 1066 (8th Cir. 1998), cert. denied, 119 S. Ct. 808 (1999).

       First, Louisell claims that the state interfered with her right to interview and have
access to the reports of Dr. Turner, a psychiatrist who examined her. She argues that
the state instructed Dr. Turner not to speak to her lawyers without the presence of the

                                            -5-
prosecutor. The Iowa Court of Appeals found, however, that the state had merely
expressed a preference that the prosecutor be present. See Louisell, No. 10258, slip
op. at 12. Moreover, the trial court ultimately granted Louisell access to Dr. Turner
outside the presence of the prosecutor. Neither party called Dr. Turner to testify at
trial, and there is no evidence that any delay Louisell experienced in being able to speak
privately with Dr. Turner rendered the trial unfair.

       Second, Louisell argues that the prosecuting attorney improperly commented on
her credibility during the closing argument by suggesting that her attorney had coached
her to cry while testifying. “Improper prosecutorial remarks violate due process when
there is a reasonable probability the remarks affected the trial’s outcome.” Roberts,
137 F.3d at 1066. We see no reasonable probability that the challenged comment
affected the outcome of the trial in this case.

       Finally, Louisell contends that the prosecuting attorney deliberately pursued
information previously suppressed by the trial court during the examination of several
witnesses. Trial errors warrant habeas relief when the prosecutor’s actions are
improper and have “prejudicially affected the defendant’s substantial rights so as to
deprive the defendant of a fair trial.” United States v. Thomas, 93 F.3d 479, 487 (8th
Cir. 1996). “In evaluating whether a trial error resulted in prejudice to the defendant,
we consider the cumulative effect of such misconduct, the strength of the properly
admitted evidence of the defendant’s guilt, and the curative actions taken by the [trial]
court.” Id. In this case, there is no evidence that the prosecutor attempted to elicit
information suppressed by the trial court in willful disregard of the trial court’s order.
The Iowa Court of Appeals found that one of the answers was unanticipated by the
prosecution and another answer was merely cumulative of evidence already admitted.
Moreover, the trial court properly sustained Louisell’s objections to improper questions
and immediately admonished the jury to disregard the statements. Considering the
strength of the state’s evidence and the curative instructions provided by the trial court,


                                           -6-
we conclude that no constitutional violation occurred. See United States v. Turk, 21
F.3d 309, 313 (8th Cir. 1994); Thomas, 93 F.3d at 487.

      The judgment is affirmed.

      A true copy.

            Attest:

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




                                        -7-
