                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                      ___________

                                      No. 00-1145
                                      ___________

Christopher L. Carroll,                *
                                       *
             Appellant,                *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Western District of Missouri.
Dora B. Schriro, Director, Department *
of Corrections; Jeremiah (Jay) W.      *
Nixon, Attorney General of the State   *
of Missouri,                           *
                                       *
             Appellees.                *
                                  ___________

                               Submitted: December 14, 2000

                                    Filed: March 16, 2001
                                     ___________

Before WOLLMAN, Chief Judge, RICHARD S. ARNOLD, and HANSEN,
      Circuit Judges.
                             ___________

WOLLMAN, Chief Judge.

       Christopher L. Carroll appeals from the district court’s1 denial of his petition for
a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. We affirm.


      1
        The Honorable Russell G. Clark, United States District Judge for the Western
District of Missouri.
                                            I.

       On March 1, 1995, a jury convicted Carroll of forcible sodomy under Missouri
Revised Statutes section 566.060, and he was subsequently sentenced to thirty years
of imprisonment as a prior offender. The conviction stemmed from events that
occurred on July 18, 1993, when Carroll and the victim, Jill Brownfield, who was at
one time Carroll’s girlfriend, spent the evening together. Carroll and Brownfield had
had an unstable intimate relationship that was marked by loud arguments, the drinking
of alcohol, and occasional violent behavior.

       During the evening hours of July 17, 1993, Brownfield and Carroll dined
together and then visited at a friend’s trailer home, where an acquaintance, Randy Orr,
was also present. While at the trailer, Brownfield refused Carroll’s repeated requests
that she stay the night with him. Brownfield then got into her car and fell asleep.
When she awoke, Carroll was in the car with her, rubbing her leg “and different
things.” She slapped Carroll, whereupon he grabbed the car keys and threw them out
of the vehicle. Carroll subsequently dragged Brownfield out of the car, across a gravel
driveway, and into a field, where he beat her, briefly penetrated her vagina with his
penis, and then, kneeling on her arms, placed his penis in her mouth and ejaculated.
Brownfield then gathered her clothes and returned to the trailer, with Carroll following.
Once inside the trailer, Carroll put a gun to his head and lamented his actions. After
Carroll ceased this suicidal behavior, the owner of the trailer drove Brownfield to her
apartment, from where she called the police. Carroll did not testify at trial. The jury
acquitted him of a charge of forcible rape, but found him guilty of forcible sodomy.

        The Missouri Court of Appeals consolidated and affirmed both Carroll’s appeal
from his conviction and the denial of his motion for post-conviction relief, setting forth
its reasoning in an unpublished memorandum. It determined that Carroll’s direct appeal
of a jury instruction issue was waived and then rejected his two ineffective assistance
of counsel claims on post-conviction review. A subset of these claims was presented

                                           -2-
in Carroll’s habeas petition to the federal district court, which subsequently granted a
certificate of appealability on three issues.

        Carroll contends that: (1) he received the ineffective assistance of counsel at
trial in violation of the Sixth Amendment because his lawyer failed to effectively
cross-examine Brownfield and Orr; (2) his claim that jury instruction number eight
violated his constitutional rights is not procedurally barred from review; and (3) he
received ineffective assistance of counsel regarding the jury instruction issue.

                                            II.

       We may issue a writ of habeas corpus pursuant to section 2254 only if the state
court’s adjudication of the claims “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 . . . resulted in a decision that was based
on an unreasonable determination of the facts . . . . ” 28 U.S.C. § 2254(d) (2000). In
this case, the standard requires us to affirm unless the state court’s application of what
it correctly cited as the appropriate federal law is “objectively unreasonable.” See
Williams v. Taylor, 529 U.S. 362, 409 (2000). We may not issue a writ simply
because we conclude that the state court decision constituted an erroneous or incorrect
application of the law. Id. at 411. We review the district court’s findings of fact for
clear error and its conclusions of law de novo. Richardson v. Bowersox, 188 F.3d 973,
977 (8th Cir. 1999).

                                A. Cross-Examination

       Carroll first contends that his trial counsel was constitutionally ineffective during
cross-examination of Brownfield and Orr. To succeed on this claim, Carroll must show
that the Missouri courts unreasonably applied United States Supreme Court precedent
regarding ineffective assistance of counsel claims. See 28 U.S.C. § 2254(d).


                                            -3-
According to that precedent, Carroll was required to demonstrate that counsel’s
performance was deficient and that he was prejudiced by that deficient performance.
See Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). To demonstrate that
counsel’s error was prejudicial, Carroll was required to show a reasonable probability
that, but for counsel’s errors, the result of the proceeding would have been different.
See id. at 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. The Missouri Court of Appeals applied Strickland and
then determined that Carroll had not demonstrated the necessary deficient performance
and prejudice.

       Carroll argues that his trial counsel should have introduced two prior inconsistent
statements, one from Brownfield and one from Orr. Brownfield had stated at a
deposition that it was “a possibility” that Carroll had stayed with her at her apartment
during the night prior to the incident, but her testimony at trial was otherwise. Carroll
contends that the introduction of Brownfield’s prior statement would have eroded her
credibility and cast doubt on the prosecutor’s assertion that Brownfield had been
ending her relationship with Carroll. The Missouri Court of Appeals observed that it
had already been established that Brownfield and Carroll had had consensual sexual
relations a few days prior to the offense. The court thus determined that Brownfield’s
prior statement would be cumulative evidence regarding the relationship and its status.
The court concluded that counsel was thus not ineffective for not presenting the
statement and that, in any event, the omission of this statement did not prejudice
Carroll.

       We cannot say that the state court’s decision regarding Brownfield’s prior
statement is an unreasonable application of Strickland. The additional statement would
have added little to Carroll’s consent defense. The couple’s turbulent relationship had
been established, as had the fact of consensual sexual relations earlier in the week, and
it was undisputed that Brownfield had accompanied Carroll to the trailer voluntarily.
The record reveals that Brownfield’s credibility was indeed questioned and that her

                                           -4-
memory of the days preceding the event was shown to be imprecise. We therefore
agree with the district court’s conclusion that the state court did not unreasonably apply
Strickland when it determined that Carroll had not established that he suffered
prejudice as a result of his counsel’s failure to introduce Brownfield’s statement.

        Orr testified that he did not see Brownfield and Carroll kiss when he was at the
trailer. Orr had previously told an investigator that the two had been “kissing on
several occasions” during that time period. Carroll argues that the admission of this
prior statement would have bolstered his consent defense, and he notes that trial
counsel himself agreed that it was “important” evidence. Although Orr’s statement that
the two had been behaving like lovers shortly before the offense may have provided
some minimal support for Carroll’s defense, only Carroll and Brownfield could testify
about the events that occurred outside the trailer and in the car, the crucial moments
preceding the events that gave rise to the charges against Carroll. Additionally, Orr did
testify that Carroll and Brownfield were behaving affectionately toward each other in
the trailer. Accordingly, the Missouri court’s conclusion that Carroll was not
prejudiced by his counsel’s failure to present Orr’s prior statement was not an
unreasonable application of Strickland.

                                  B. Jury Instruction

                        1. Direct Appeal/Procedural Default

        Carroll argues that jury instruction eight eliminated the element of intent because
it lacked a certain optional paragraph. In evaluating Carroll’s claim, the Missouri Court
of Appeals found it to be waived on direct appeal because Missouri Supreme Court
Rule 28.03 (1994)2 provides that to preserve an instruction-based claim, a specific

      2
       At the time of trial, Rule 28.03 provided:
      A party may, but is not required to, object specifically or generally on the
      record to the refusal of any instruction or verdict form which he has
                                            -5-
objection must be made at trial or in a motion for new trial, which Carroll conceded had
not been done. Carroll’s trial counsel objected generally to a number of jury
instructions during trial and in a new trial motion, but did not specifically raise a claim
concerning the optional paragraph and the issue of mental state. The court therefore
refused to reach the merits of Carroll’s claim.

        The district court concluded that the Missouri court’s application of Rule 28.03
to bar review of Carroll’s claim on direct appeal was an adequate and independent state
procedural ground that barred federal court review. See Ford v. Georgia, 498 U.S.
411, 422-24 (1991); Harris v. Reed, 489 U.S. 255, 264 (1989). Carroll argues that the
rule is not regularly and consistently applied, and thus should not bar consideration of
his claim on the merits, see James v. Kentucky, 466 U.S. 341, 348-49 (1984)
(procedural rule must be firmly established and regularly followed). He references the
cases of State v. Smoot, 860 S.W.2d 799 (Mo. Ct. App. 1993), and State v. Rollins,
882 S.W.2d 314 (Mo. Ct. App. 1994), which he claims demonstrate that Rule 28.03
is not regularly followed by the Missouri courts, and moreover, that his objection in his
motion for new trial was sufficient under that rule as properly applied.

       The district court concluded that the state rule regularly required a specific jury
instruction objection to be made at trial or in a new trial motion, see, e.g., State v.
Storey, 901 S.W.2d 886, 896 (Mo. 1995) (en banc); State v. Nolan, 872 S.W.2d 99,
103 (Mo. 1994) (en banc), and that Carroll had failed to demonstrate that the state



      requested, or to instructions or verdict forms to be given at the request of
      any other party, or to instructions or verdict forms which the court on its
      own initiative has given or failed to give. However, specific objections
      to given or refused instructions and verdict forms shall be required in
      motions for new trial unless made on the record at the time of trial.
      Objections made at time of trial to the giving or refusing of instructions
      and verdict forms may be supplemented or enlarged in motions for new
      trial.
                                            -6-
courts did not consistently enforce this rule. We agree. Both of the cases cited by
Carroll involve a voluntary intoxication instruction that stated that such a condition
“will not relieve a person of responsibility for his conduct,” an instruction the Missouri
Supreme Court had found to violate due process because it excused the State from
proving mental state beyond a reasonable doubt. Rollins, 882 S.W.2d at 315-16;
Smoot, 860 S.W.2d at 801. In both Smoot and Rollins, the state court’s decision noted
that a constitutional objection to the jury instruction, which itself specifically focuses
on mental state, had been included in the motion for a new trial. Rollins, 882 S.W.2d
at 316. Making such a sufficiently precise objection is precisely what the state court
determined that Carroll had failed to do because he did not pinpoint the mental state
issue. Cf. Smoot, 860 S.W.2d at 800-01 (finding claim not waived when defendant
objected at trial to instruction because “the defendant did not testify that [the condition]
interfered with his thinking” and in new trial motion added constitutional language).
Carroll has not shown that the state’s independent rule was not firmly established and
regularly applied, thus federal habeas review on the merits is barred.

      Carroll argues in the alternative that he has shown sufficient cause and actual
prejudice to excuse his procedural default, see Coleman v. Thompson, 501 U.S. 722,
750 (1991), because his trial counsel was ineffective for failing to specifically raise the
claim. Carroll contends that without the optional paragraph, the jury instruction
allowed the jury to speculate on his mental state rather than requiring it to find the
intent prescribed by the statute and thus to convict him for criminally negligent conduct.
See Mo. Rev. Stat. §§ 566.060 (outlining forcible sodomy without a specified element
for mental state), 562.021 (“[I]f the definition of an offense does not expressly
prescribe a culpable mental state, a culpable mental state is nonetheless required and
is established if a person acts purposely or knowingly or recklessly, but criminal
negligence is not sufficient.”) (1991).

       Jury instruction eight included the following language:


                                            -7-
             As to Count II [forcible sodomy], if you find and believe from the
      evidence beyond a reasonable doubt:
             First, that on or about the 18th day of July, 1993, in the County of
                               Greene, State of Missouri, the defendant placed
                               his penis in the mouth of Jill K. Brownfield, and
             Second, that such conduct constituted deviate sexual intercourse,
                               and
             Third, that defendant did so without the consent of Jill K.
                               Brownfield by the use of forcible compulsion,
      then you will find the defendant guilty under Count II of forcible sodomy.
                                           ...
             Consent or lack of consent may be expressed or implied. Assent
      does not constitute consent if it is induced by force or duress. “Forcible
      compulsion” means physical force that overcomes reasonable resistance
      or a threat, expressed or implied, that places a person in reasonable fear
      of death or serious physical injury of herself.

Optional paragraph four states:

      Fourth, that defendant (knew that he was engaging in the conduct
            described in paragraph First without the consent of [name of
            victim] by forcible compulsion) (or) (consciously disregarded a
            substantial and unjustifiable risk that he was engaging in the
            conduct described in paragraph First without the consent of [name
            of victim] by forcible compulsion, and such disregard constituted
            a gross deviation from the standard of care which a reasonable
            person would have exercised in the situation), and . . . .

As quoted by the state court, the “notes on use” to the approved model jury instruction
provide:

      4. Since the statute does not prescribe a culpable mental state, the crime
      is committed if the defendant either “knew” that the victim was not
      consenting due to forcible compulsion or acted recklessly with regard
      thereto. Section 562.021.2, RSMo 1986. Optional paragraph (Fourth)

                                          -8-
      may be given on the Court’s own motion, and it must be given if
      requested by defendant and, from the evidence or absence thereof, it
      could reasonably be inferred that the victim consented or that the
      defendant believed that the victim consented. The mental state submitted
      must be “recklessly” unless the prosecutor elects to submit the higher
      mental state of “knowingly.”

       Passing the question of cause, we are satisfied that Carroll has failed to show
that he suffered actual prejudice from the omission of the optional paragraph. To
establish prejudice sufficient to excuse a procedural default, Carroll must show that
“the errors of which he complains ‘worked to his actual and substantial disadvantage,
infecting his entire trial with error of constitutional dimensions.’” Ivy v. Caspari, 173
F.3d 1136, 1141 (8th Cir. 1999) (quoting United States v. Frady, 456 U.S. 152, 170
(1982)) (emphasis omitted); Luton v. Grandison, 44 F.3d 626, 628 (8th Cir. 1994). The
record is devoid of any evidence supporting Carroll’s defense of consent or his claim
that his conduct was merely criminally negligent. The evidence is consistent only with
the use of physical force and not with perceived consent, particularly given the
evidence of dragging and beating and of Carroll’s actions in kneeling on Brownfield’s
arms to accomplish his act of oral copulation. Carroll’s immediate apparent remorse
for his actions indicates that he knew that Brownfield was not a willing participant in
the open-field sexual attack that he had made upon her. Thus, the absence of the
optional paragraph from instruction eight could not possibly have resulted in the type
of prejudice necessary to excuse a procedural default.

                        2. Ineffective Assistance of Counsel

       The state court concluded that Carroll’s trial counsel was not ineffective for
failing to request the optional paragraph. Trial counsel had testified that he believed
that the optional paragraph would have allowed Carroll to be convicted of a lesser level
of intent, namely, recklessness, than the instruction as given required. The court
observed the ample evidence of force used against Brownfield and noted that the

                                           -9-
optional paragraph, designed to address reckless conduct and situations where consent
or the defendant’s belief in consent may be reasonably inferred, was not applicable to
the facts, and thus Carroll had not shown sufficient prejudice.

       To succeed on a claim of ineffective assistance of counsel under Strickland,
Carroll was required to show that he was prejudiced by his counsel’s actions.
Strickland, 466 U.S. at 687, 694. In light of the evidence summarized above, the
Missouri court’s conclusion that there was no reasonable probability that the outcome
would have been different had the optional paragraph been included is not an
unreasonable one, and thus Carroll’s argument fails.

      The judgment is affirmed.

      A true copy.

             Attest:

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




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