Harris v. United States

• Citation: 131 US App. DC 105,402 F.2d 656
• Decision Date: 17 September 1968
• Docket Number: No. 21392.,21392.
• Parties: John HARRIS, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

131 US App. DC 105, 402 F.2d 656 (1968)

John HARRIS, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 21392.

United States Court of Appeals District of Columbia Circuit.

Argued May 8, 1968.

Decided September 17, 1968.

Mr. Jeffrey M. Glosser, Washington, D. C., (appointed by this court) for appellant.

Mr. Daniel J. Givelber, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and William L. Davis, Jr., Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, and WILBUR K. MILLER, Senior Circuit Judge, and BURGER, Circuit Judge.

BURGER, Circuit Judge:

Appellant was convicted in the District Court of the unauthorized use of a motor vehicle under 22 D.C.CODE § 2204 (1967). His appeal raises only one issue: the propriety of certain remarks made by the prosecutor in his closing argument to the jury.

This claim is raised for the first time on appeal as "plain error" under Rule 52(b) FED.R.CRIM.P. At trial there was no objection — either during the argument or thereafter, at the bench — and no request for a corrective instruction, or motion for a mistrial. In short, Appellant invoked none of several possible methods for bringing these remarks to the attention of the trial judge who was best able to assess their effect on the jury and to undertake corrective measures. The problem of raising objections to improper argument of either counsel presents obvious practical difficulties. Counsel may, of course, object during the argument, but unless the departure from the proprieties is egregious neither the court nor the jury is likely to look favorably upon such an interruption at that stage. The more usual treatment is for counsel to approach the bench at the conclusion of the summing up and request an immediate instruction to correct the impact of objectionable material. In the gravest situation it may be his duty to raise the issue of a mistrial. However, since none of these avenues was pursued here, we find no basis for reversal. See Gibson v. United States, ___ U.S.App.D.C. ___, 403 F.2d 166 decided Feb. 12, 1968, amended May 1, 1968). The trial judge may also properly stop a lawyer whose summation exceeds permissible grounds; the judge's interruption does not involve the risk that counsel takes when he objects in the midst of a closing argument and such action by the court, while limited to serious transgressions, may avoid declaring a mistrial or reversible error.¹

It is nevertheless clear that the prosecutor's remarks in the present case were of a kind that ought not be made. The defense was based upon Appellant's testimony that he had not stolen the car in question but that someone he presumed to be its owner, and who was unknown to Appellant, had lent him the car. His claim was that when he could not find this person later in the evening in order to return the car he decided to keep it overnight and return it the next morning to the parking lot where he had borrowed it. Before morning, however, he was arrested. The complainant testified that at approximately 10:00 p. m. he had parked his car by the stage door of the theater in whose parking lot Appellant testified the loan was made, and that when he returned the car had been removed. The Appellant testified that the accommodating stranger gave him the car at about 8:30 p. m. Thus complainant's testimony was that he did not arrive at the theater with his car until nearly two hours after Appellant said the "Good Samaritan" lender had turned it over to him. It is, of course, not surprising that the jury declined to believe this excessively implausible tale.

But our concern is not with the merits of the case, since the evidence against Appellant — including his own bizarre story — is overwhelming. The prosecutor attacked Appellant's version as an incredible tale. This was, of course, a permissible argument. But he went beyond this and made comments on Appellant's testimony that we consider of questionable propriety. He stated: "I ask you to reject it in toto the defense of John Harris because it reeks of fabrication, it lacks merit, it is not reasonable." He went on: "He would urge upon you that his defense is that he took this car in innocence sic but mistaken belief that he had the consent of the owner. If you really believe that, then he is pulling the wool over your eyes." And further: "Reasonably, there is a total fabrication. I would submit, ladies and gentlemen, it is a lie."

We address ourselves to these remarks not because we view them as having had significant impact on this case but because of the frequent nonobservance of the prohibition against expressions of personal opinions on the ultimate issue by counsel. The challenged statements are in essence an opinion of counsel as to the veracity of witnesses in circumstances where veracity may determine the ultimate issue of guilt or innocence.² Appellant's testimony is a "lie" or "fabrication" only if the jury accepts all of the complainant's testimony and rejects the hypothesis that the claimed third person did intervene and Appellant merely forgot the precise time at which the events in question occurred. Appellant's testimony permitted the prosecutor to ask the jury to consider whether it was implausible, unbelievable, highly suspect, even ridiculous. Many strong adjectives could be used but it was for the jury, and not the prosecutor, to say which witnesses were telling the truth. Neither counsel should assert to the jury what in essence is his opinion on guilt or innocence. Yet this is the effect of remarks such as those of the prosecutor here when the accused gives testimony directly conflicting with that of the government's witnesses.

The precise words here challenged were pointless, if for no other reason, because of the availability of more effective means of characterizing an implausible story.³ This is more than a matter of semantics; the purpose of the rule forbidding expression of opinion of counsel on the ultimate issue is to keep the focus on the evidence and to eliminate the need for opposing counsel to meet "opinions" by urging his own contrary opinion. The impropriety of substituting an attorney's view of the case for the evaluation of the evidentiary facts has been discussed by Drinker in the context of stating one's personal view of his case:

There are several reasons for the rule, long established, that a lawyer may not properly state his personal belief either to the court or to the jury in the soundness of his case. In the first place, his personal belief has no real bearing on the issue; no witness would be permitted so to testify, even under oath, and subject to cross-examination, much less the lawyer without either. Also, if expression of personal belief were permitted, it would give an improper advantage to the older and better known lawyer, whose opinion would carry more weight, and also with the jury at least, an undue advantage to an unscrupulous one. Furthermore, if such were permitted, for counsel to omit to make such a positive assertion might be taken as an admission that he did not believe in his case.

H. DRINKER, LEGAL ETHICS 147 (1953) (footnotes omitted).

The First Circuit adopted this reasoning as the basis for a decision that a prosecutor's expression of his "personal...