                                    ___________

                                    No. 95-4032
                                    ___________

Kenneth Melvin Phea,                     *
                                         *
              Appellant,                 *
                                         *    Appeal from the United States
       v.                                *    District Court for the
                                         *    District of Minnesota.
Dennis L. Benson, Warden,                *
Minnesota Correctional                   *
Facility, Stillwater, MN,                *
                                         *
              Appellee.                  *
                                    ___________

                     Submitted:     July 11, 1996

                           Filed:   September 9, 1996
                                    ___________

Before WOLLMAN, JOHN R. GIBSON, and HANSEN, Circuit Judges.
                               ___________


WOLLMAN, Circuit Judge.


       Kenneth Phea appeals from the district court's1 denial of his 28
U.S.C. § 2254 petition.     We affirm.


                                         I.


       On October 9, 1991, the victim of the crime giving rise to Phea's
conviction had a chance encounter with Phea at the Greyhound bus terminal
in Minneapolis, Minnesota.          The two left the bus terminal in Phea's
automobile.    When they returned, the victim discovered she had missed her
bus.   Phea offered to drive her to her aunt's house after stopping to see
Phea's sister.




       1
      The Honorable David S. Doty, United States District Judge for
the District of Minnesota, adopting the report and recommendation
of the Honorable Franklin L. Noel, United States Magistrate Judge.
     While at Phea's sister's house, Phea physically restrained and raped
the victim.   After Phea fell asleep, the victim was able to leave and call
the police.   The responding officer characterized the victim as agitated
and hysterical.   Another officer stated that the victim was very upset and
appeared to have been in pain.     The nurse at the hospital to which the
victim was taken likewise testified that the victim was crying and very
frightened.


     At Phea's trial, the victim became emotional soon after her direct
examination began.   She began to cry and said ("screamed," according to the
Minnesota Court of Appeals' opinion), "Don't make me say this, I can't, I
can't."   The prosecutor requested a short recess, which the court granted.
Phea's motion for a mistrial was denied.   Phea did not request a curative
instruction and none was given sua sponte by the court.


     Phea was convicted of criminal sexual conduct.     The Minnesota Court
of Appeals affirmed his conviction in an unpublished opinion, State v.
Phea, C7-92-1104 (Minn. Ct. App. April 20, 1993).     The Minnesota Supreme
Court denied review.   Phea then filed this section 2254 petition.


                                    II.


     Phea contends that his due process rights were violated by the state
trial court's refusal to grant a mistrial and its failure to sua sponte
give a curative instruction.    The district court found that the victim's
statement was not prejudicial and that Phea was thus not denied his due
process rights.   We agree.


     The relevant inquiry for whether the trial court erred in not
granting a mistrial based upon a witness's statement is whether there has
been a due process violation.   Cage v. Auger, 514 F.2d 1231, 1232 (8th Cir.
1975) (citing Donnelly v. DeChristoforo, 416




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U.S. 637, 643 (1974)).    Whether a due process violation occurred depends
upon whether the witness's statement "so infected the trial with unfairness
as to make the resulting conviction a denial of due process."      Alexander
v. Armontrout, 985 F.2d 976, 978 (8th Cir. 1993) (quoting Donnelly, 416
U.S. at 643).


     The victim's statement, "Don't make me say this, I can't, I can't,"
neither mentioned Phea nor pertained to any of the evidence or claims
before the court.   Moreover, the statement in no way enhanced the victim's
credibility, but rather was a natural response to being called upon to
recount the details of the rape.   Because the statement did not infect the
trial with unfairness,   Phea suffered no denial of due process.


     Curative measures are normally sufficient to mitigate any potential
prejudice that may result from a witness's statement or behavior.       Cf.
United States v. Koskela, 86 F.3d 122, 125 (8th Cir. 1996).   However, the
failure to give a sua sponte curative instruction does not, by itself,
amount to constitutional error.    Willis v. Kemp, 838 F.2d 1510, 1519-20
n.19 (11th Cir. 1988).    Because no prejudice resulted from the victim's
unresponsive, albeit emotional, statement, the trial court committed no
error in failure to sua sponte give a curative instruction.


     By the same token, Phea's argument that his trial counsel was
ineffective for failing to request a curative instruction is without merit.


     We turn to Phea's claim that counsel rendered ineffective assistance
by not challenging the composition of the jury.   To succeed on a claim of
ineffective assistance of counsel, a petitioner must show not only that his
attorney's performance was deficient, but also that he was prejudiced by
such deficient performance.   Strickland v. Washington, 466 U.S. 668, 687-
688 (1984).   If a petitioner fails to demonstrate that prejudice has




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resulted from the complained-of performance by counsel, we need not analyze
the performance prong.           Carter v. Armontrout, 929 F.2d 1294, 1298 (8th Cir.
1991) (citing Strickland, 466 U.S. at 697).


        A defendant is guaranteed a jury chosen from a fair cross section of
the community.         Wharton-El v. Nix, 38 F.3d 372, 376 (8th Cir. 1994).         Phea
is    an   African-American, and he claims that the venire panel under-
represented African-Americans, resulting in a violation of his Sixth
Amendment right.            To establish this claim, Phea was required to show:


        (1) that African-Americans are a "distinctive group in the
        community;" (2) that the representation of African-Americans in
        jury pools is not "fair and reasonable in relation to the
        number of [African-Americans] in the community;" and (3) that
        "this under-representation is due to systematic exclusion of
        [African-Americans] in the jury-selection process."


Wharton-El, 38 F.3d at 376 (quoting Duren v. Missouri, 439 U.S. 357, 364
(1979)).


        Even assuming that the first two prongs have been satisfied, Phea has
not presented any evidence showing a systematic exclusion of African-
Americans from the jury pool.              At most, he has shown a possible under-
representation of African-Americans in his case only.                  "`Evidence of a
discrepancy       on    a    single   venire   panel   cannot   demonstrate   systematic
exclusion.'"       Wharton-El, 38 F.3d at 376 (quoting Singleton v. Lockhart,
871 F.2d 1395, 1399 (8th Cir. 1989), cert. denied, 110 S. Ct. 207 (1989)).
As we stated in Wharton-El, "the absence of any actual systematic exclusion
precludes a finding of prejudice springing from ineffective assistance
based      on   the failure to raise or preserve the issue of systematic
exclusion."      38 F.3d at 377.       Thus, because Phea has not demonstrated that
the    composition of the jury violated the requirements of the Sixth
Amendment, counsel was not ineffective for failing to object.




                                               -4-
                                        III.


      Phea's final argument is that the evidence was not sufficient to
support his conviction.        The district court found that the victim's
testimony, along with other corroborating evidence, such as the officers'
and nurse's observations, was sufficient to sustain Phea's conviction.              We
agree.


      In reviewing a sufficiency of the evidence claim, we must ask
"whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt."          Jackson v. Virginia, 443
U.S. 307, 319 (1979).    Phea's argument is that reasonable doubt should have
arisen because of inconsistencies in the victim's testimony, her previous
statements, and other evidence.        It is, however, the jury's function, and
not this court's, to weigh the credibility of the witnesses and any such
inconsistencies.   Cf. United States v. E.R.B., 86 F.3d 129 (8th Cir. 1996).
We   conclude   that   when   viewed    in   the   light   most   favorable   to   the
prosecution, the evidence was sufficient to sustain Phea's conviction.


      The judgment is affirmed.


      A true copy.


            Attest:


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




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