                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-1258
                                   ___________

Richard C. Herrin,                      *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Missouri.
United States of America,               *
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: September 9, 2003

                                  Filed: November 12, 2003
                                   ___________

Before WOLLMAN, BOWMAN, and RILEY, Circuit Judges.
                        ___________

WOLLMAN, Circuit Judge.

      Richard C. Herrin appeals the district court’s1 denial of his motion for writ of
habeas corpus under 28 U.S.C. § 2255.2 He argues that comments by the government
during closing argument violated his fifth amendment right to remain silent and that



      1
      The Honorable Dean Whipple, Chief Judge, United States District Court for
the Western District of Missouri.
      2
       We grant Herrin’s pro se motion that his August 21, 2003, correspondence
with his appellate counsel be viewed and considered as part of the record on appeal.
his trial counsel’s failure to object to those comments constituted ineffective
assistance. We affirm.

                                            I.

       Herrin was convicted of armed bank robbery and the use of a firearm during
and in relation to a crime of violence. We affirmed his conviction and sentence on
direct appeal in an unpublished opinion. United States v. Herrin, 242 F.3d 377 (8th
Cir. 2000) (Table). He then filed a motion to set aside his conviction under 28 U.S.C.
§ 2255, claiming violations of his constitutional rights under the fifth and sixth
amendments. The district court found no prosecutorial misconduct or ineffective
assistance of counsel and found Herrin’s insufficient-indictment claim to be without
merit. D. Ct. Order of Mar. 19, 2002. The district court issued a certificate of
appealability on two issues: (1) whether the prosecutor’s comments during closing
argument violated Herrin’s fifth amendment rights, and (2) whether Herrin’s trial
counsel provided ineffective assistance by not objecting to those comments. D. Ct.
Order of Nov. 4, 2002 at 4.

       At trial, the parties presented the two factual scenarios: either Herrin or his
brother, Terry Herrin (Terry), committed the felony. Witnesses to the crime had
difficulty identifying the man who robbed the bank because he wore a stocking mask
over his head, with duct tape covering his mouth. Terry, the government’s principal
witness, testified that his brother told him the details of the robbery after the fact. The
government’s trial strategy was to prove both that Terry could not have committed
the robbery and that Herrin did commit the robbery. Herrin chose not to testify.

      During his closing argument, the prosecutor focused on Terry’s testimony. He
argued that Terry’s actions were inconsistent with guilt and that he was a credible
witness, making the following comments during the course of the argument:



                                           -2-
      Now, I want you to consider the actions and the testimony of Terry
      Herrin, and ask yourself if those are the actions of a guilty man.
                                         ...
      Is that what a guilty man does? No. A guilty man doesn’t say a thing,
      he just says I am not going to tell you anything. But instead Terry
      Herrin cooperates fully. . . . You are going to keep your mouth shut,
      that’s what a guilty person does, but Terry Herrin didn’t do that.
                                         ...
      There is no evidence that anybody but the defendant has a police
      scanner. There is no evidence that anybody but the defendant knows
      how to use that police scanner. There is no evidence that anybody but
      the defendant had the gun. There is no evidence that anybody but the
      defendant knew how to use the gun.
                                         ...
      In trials you have to deal with the evidence, that is the only fair way to
      do this. . . . I am stuck with what came to you from the witness stand,
      and it ought to be the other way around too.

      Herrin’s trial counsel did not object to any of the prosecutor’s comments during
closing argument and did not raise the issue on direct appeal.

                                         II.

      Herrin’s prosecutorial misconduct claim and his ineffective-assistance claim
present mixed questions of fact and law. Graham v. Dormire, 212 F.3d 437, 440 (8th
Cir. 2000). We review the district court’s denial of habeas relief by the usual
standards of review, reviewing mixed questions of law and fact de novo. Hall v.
Luebbers, 296 F.3d 685, 692 (8th Cir. 2002).

                                         A.

      Comments by a prosecutor on an accused’s failure to take the stand violate the
accused’s fifth amendment right to remain silent. Griffin v. State of California, 380


                                         -3-
U.S. 609, 615 (1965). Either direct or indirect references to defendant’s choice not
to testify may establish a constitutional violation. Indirect comments rise to the level
of a constitutional violation if the statements either (1) manifest the prosecutor’s
intention to call attention to the defendant’s failure to testify, or (2) are such that the
jury would naturally and necessarily understand the comments as highlighting the
defendant’s failure to testify. Robinson v. Crist, 278 F.3d 862, 866 (8th Cir. 2002);
United States v. Smith, 266 F.3d 902, 906 (8th Cir. 2001) (citations omitted).
Prosecutorial comments must be reviewed in context, Graham, 212 F.3d at 439-40,
and we will reverse only if the defendant shows both that the comments were
improper and that they resulted in prejudice. Stringer v. Hedgepeth, 280 F.3d 826,
829-30 (8th Cir. 2002).

       Because the prosecutor did not directly comment on Herrin’s failure to testify,
the question is whether the indirect comments ran afoul of Herrin’s fifth amendment
rights. We conclude that they did not, for when read in context the comments do not
reflect an intent to call attention to Herrin’s failure to testify but rather constitute an
argument that Terry could not be guilty, given his cooperation with the police.
Likewise, the challenged comments, when taken as a whole, would not naturally and
necessarily have been understood by the jury as a reference to Herrin’s failure to
testify. Herrin argues that the jury would have understood the first comment about
what “a guilty man does” as stating a general principle that applied negatively to
Herrin’s silence as well as positively to Terry’s cooperation with the police. Taken
alone, the statement “A guilty man doesn’t say a thing, he just says I am not going to
tell you anything” might well constitute an impermissible comment. In the context
of this closing argument, however, the jury would necessarily recognize the narrow
focus on Terry, for, as set forth above, the prosecutor opened that section of his
argument with “Now, I want you to consider the actions and the testimony of Terry
Herrin . . . .”




                                           -4-
      Finally, Herrin contends that the jury understood the remaining comments to
imply that his failure to testify constituted an admission of his guilt. As we view the
argument, however, those comments were a call to the jury to rely only on the
evidence presented in determining whether it was sufficient to establish Herrin’s guilt
and not a reference to his failure to testify.

                                          B.

       In light of our holding that the challenged comments did not violate Herrin’s
fifth amendment rights, we need not consider his contention that his trial counsel
rendered ineffective assistance by failing to object to them at trial and in not raising
them as an issue on appeal.

      The order denying the motion for a writ of habeas corpus is affirmed.

RILEY, Circuit Judge, concurring.

      I concur in the judgment, but write separately because I believe the
prosecutor’s argument commented indirectly on Herrin’s decision not to testify and
therefore violated Herrin’s Fifth Amendment privilege against compulsory self-
incrimination. I further object to the misleading nature of two of the challenged
remarks, which mischaracterized the actions (and inaction) of Terry Herrin, the
defendant’s brother and the prosecution’s chief witness.

      The majority correctly states that a reviewing court must evaluate the
challenged prosecutorial remarks in the context of the entire argument and the
evidence adduced at trial. United States v. Emmert, 9 F.3d 699, 702 (8th Cir. 1993);
United States v. Durant, 730 F.2d 1180, 1184 (8th Cir. 1984). However, in
concluding the challenged remarks do not reflect an intention to call attention to



                                          -5-
Herrin’s failure to testify, the majority evaluated the challenged remarks in the
context of a small segment of the prosecutor’s closing argument.

      The prosecutor framed his closing argument in the form of a disjunctive
syllogism,3 beginning with a statement of alternatives: “[I]t boils down to whether the
defendant committed the robbery or whether Terry Herrin committed the robbery.”
The prosecutor next eliminated Terry Herrin as an alternative, arguing “[I]f Terry
Herrin did not commit this robbery, there is only one logical possibility under
common sense, the evidence, and the law; and that’s that the defendant committed the
robbery.”

       The prosecutor then proceeded to contrast the personal characteristics of Terry
Herrin with those of Richard Herrin. The prosecutor argued the robber wore a glove
on his left hand, and had duct tape across the mouth hole of his mask, saying:

      Terry Herrin does not have a tattoo on his left hand. Terry Herrin
      doesn’t have any tattoos at all. The defendant Richard Herrin has a
      tattoo on his left hand.
                                           ...
      Terry Herrin showed you his teeth. There is nothing unusual about his
      teeth . . . .The defendant’s dental situation is very obvious[] and unique,
      he has very few teeth left in his head.


      After directly contrasting the two brothers by name, the prosecutor then
proceeded to contrast indirectly the actions and testimony of Terry Herrin with the
actions and lack of testimony by Richard Herrin, substituting “a guilty man” in place
of Richard Herrin’s name. The prosecutor declared,


      3
       A disjunctive syllogism has as its first premise a statement of alternatives:
Either p or q; it continues: not q, therefore p.

                                         -6-
      Now, I want you to consider the actions and the testimony of Terry
      Herrin, and ask yourself if these are the actions of a guilty man.
                                         ...
      A guilty man doesn’t say a thing, he just says I am not going to tell you
      anything. But instead Terry Herrin cooperates fully.
                                         ...
      You are going to keep your mouth shut, that’s what a guilty person does,
      but Terry Herrin didn’t do that.

(Emphasis added.)

        No leap of logic was required for the jury to deduce the prosecutor’s intended
argument: A guilty person keeps his mouth shut; Richard Herrin kept his mouth shut;
Richard Herrin is a guilty man. The remarks manifested a clear intention by the
prosecutor to highlight, by means of contrast to his brother, Richard Herrin’s failure
to testify at trial. A jury hearing the entire argument would understand the last remark
(“You are going to keep your mouth shut, that’s what a guilty person does, but Terry
Herrin didn’t do that . . .”) as an indirect but powerful comment on Richard Herrin’s
failure to testify at trial. See Griffin v. California, 380 U.S. 609, 615 (1965).

       Furthermore, two of the prosecutor’s remarks are arguably misleading to the
jury. Contrary to the prosecutor’s argument (“But Terry Herrin didn’t do that”), Terry
Herrin, in fact, remained silent for nearly five weeks. Terry Herrin “didn’t say a
thing” and “kept his mouth shut” from March 2, the date on which he learned of the
robbery, until April 7, when the FBI first contacted him. Not only did Terry Herrin
keep his mouth shut, he intentionally destroyed fingerprint evidence, and concealed
evidence of the robbery–the gun, a shirt, handcuffs, a shoulder holster, and
ammunition. Terry Herrin even accepted $1000 in hush money for his silence. Also
contrary to the prosecutor’s characterization, Terry Herrin did not “cooperate[] fully”
with the authorities, at least not initially. When FBI agents first contacted Terry



                                          -7-
Herrin on April 7, 1999, he withheld information and lied in his written statement,
representing he did not learn about the robbery until a week or two after the robbery.

       The prosecutor’s major premise is even misleading. All guilty suspects do not
remain silent. Often, they lie, giving false alibis and blaming others. On occasion,
they even confess. On the other hand, innocent suspects may choose to exercise their
constitutional right to remain silent, which may be a wise decision.

       Despite the impropriety of some of the challenged remarks, the cumulative
effect of any constitutional error committed in this case was minimal. See United
States v. Triplett, 195 F.3d 990, 997 (8th Cir. 1999). I conclude with fair assurance
that the improper remarks were harmless beyond a reasonable doubt, see Chapman
v. California, 386 U.S. 18, 22-24 (1967), and did not so infect the trial with unfairness
that the resulting conviction was a denial of due process, see Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974). In light of the government’s substantial
evidence, the prosecutor’s improper remarks did not deny Herrin a fair trial. See
United States v. Johnson, 968 F.2d 768, 772 (8th Cir. 1992) (declaring “[i]f the
evidence of guilt is overwhelming, an improper argument is less likely to affect the
jury verdict.”) (quoting United States v. Splain, 545 F.2d 1131, 1135 (8th Cir. 1976)).
Thus, I concur.
                        ______________________________




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