Holden v. United States, 6963.

Citation388 F.2d 240
Decision Date24 January 1968
Docket NumberNo. 6963.,6963.
PartiesFrank Leslie HOLDEN, Defendant, Appellant, v. UNITED STATES of America, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Cornelius J. Moynihan, Jr., Newton, Mass., by appointment of the Court, for appellant.

Louis M. Janelle, U. S. Atty., with whom William H. Barry, Jr., Asst. U. S. Atty., was on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

McENTEE, Circuit Judge.

Defendant was convicted of violating the federal kidnaping statute1 and was sentenced to life imprisonment.2 The indictment charged him with unlawfully abducting and transporting one Vivian Ricker in interstate commerce and sexually assaulting her.

Mrs. Ricker testified that on the evening of November 22, 1966, as she entered her parked car to return home from a P.T.A. meeting in Lewiston, Maine, the defendant suddenly entered the car, forced her at gun point to drive to Berlin, New Hampshire, and on the way raped her twice. When they reached Berlin she managed to escape and contacted the local police who apprehended the defendant.

Principal among the points raised by defendant on appeal are (1) that the statute under which he was convicted is invalid, and (2) that the government in its summation improperly commented on his failure to take the witness stand in his own defense.

Relying on United States v. Jackson, 262 F.Supp. 716 (D.Conn. 1967)3 defendant specifically attacks the punishment provision of the statute because under it he claims that if a defendant insists on his constitutional right to a jury trial, he automatically runs the increased risk of capital punishment by the recommendation of the jury. The jury's favorable verdict on this score has mooted the question so far as this defendant is concerned. We are unwilling to hold that this provision is not severable and hence that the entire statute is void. As stated by the Supreme Court in Poe v. Ullman, 367 U.S. 497, 503-504, 81 S.Ct. 1752, 1756, 6 L.Ed.2d 989 (1961):

"The various doctrines of `standing,\' `ripeness,\' and `mootness,\' which this Court has evolved with particular, though not exclusive, reference to such cases are but several manifestations — each having its own `varied application\' — of the primary conception that federal judicial power is to be exercised to strike down legislation, whether state or federal, only at the instance of one who is himself immediately harmed, or immediately threatened with harm, by the challenged action. * * * `The party who invokes the power to annul legislation on grounds of its unconstitutionality must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement * * *.\' Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 488 43 S.Ct. 597, 67 L.Ed. 1078."

Here the defendant is a mere proxy arguing another's constitutional rights. Under such circumstances, we think he has no standing to object to the statute. Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603 (1943) (per curiam); Yazoo & Miss. Valley R. R. Co. v. Jackson Vinegar Co., 226 U.S. 217, 33 S.Ct. 40, 57 L.Ed. 193 (1912); Wright, Federal Courts pp. 39-40 (1963). See also Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 64 n. 6, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963).

Alternatively, defendant contends that the possible death penalty provision permitted the introduction of the evidence of rape, and that this was prejudicial to the defendant. The short answer to this contention is that the defense that Mrs. Ricker consented to the automobile trip and therefore was not kidnaped, in and of itself made this evidence admissible quite apart from the death penalty aspect of the case.

With reference to defendant's second point, it appears that several times during the government's closing argument the United States Attorney made mention of the fact that Mrs. Ricker's testimony was uncontradicted. In support of this point, he relies upon our holding in Desmond v. United States, 345 F.2d 225, 14 A.L.R.2d 718 (1st Cir. 1965). In that case the government in its final argument to the jury observed that the evidence stands "unimpeached and uncontradicted." We said at 227 of 345 F.2d: "Unless it is apparent on the record that there was someone other than himself whom the defendant could have called, the comment of necessity pointed to the only person who could have offered the contradiction, the defendant himself." We found that although the court later charged that no inference should be drawn against the defendant from his failure to take the stand, that this did not cure this error. Id., at 226-227.

Of course, as in Desmond, the reference in the instant case to defendant's failure to testify was veiled but in the context it was obvious who was expected to contradict Mrs. Ricker. This is not a situation where the contradiction could come from more than one source. Realistically it would have to come from this defendant or it was not likely to come at all.4

We think the instant case is distinguishable from Desmond. There, counsel objected promptly. Instead of agreeing that it was improper comment, the court overruled the objection. Here counsel did not interrupt even when the objectionable reference was made a third time, but moved for a mistrial during the recess at the end of the argument. After denying this motion, the court dealt with the problem early in its charge. It stated:

"The law does not compel a defendant in a criminal case to take the witness stand and testify, and no presumption of guilt may be raised, and no inference of any kind may be drawn, from the failure of a defendant to testify.
"The United States Attorney stated that Mrs. Ricker\'s testimony was uncontradicted. You are instructed that you may not draw any inference from that statement pertaining to the guilt of the defendant merely because he exercised his constitutional right to remain off the stand."

In Desmond we said that the charge could not cure this error because the defendant, having timely objected, was entitled to a timely instruction. There it could be argued persuasively that the immediate psychological impact of the improper comment could best be erased by an immediate instruction; that an instruction that was merely part of the charge and given at a later time would not...

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    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
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    ...these objections for appeal. Crumpton v. United States, 138 U.S. 361, 364, 11 S.Ct. 355, 34 L.Ed. 958 (1891); Holden v. United States, 388 F.2d 240, 242-243 (1st Cir.) cert. denied, 393 U.S. 864, 89 S.Ct. 146, 21 L.Ed. 2d 132 (1968). The purpose of this rule is to allow the trial judge to a......
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    ...(2d Cir. 1968). Other circuits have suggested that immediate objection during argument is the proper practice. See Holden v. United States, 388 F.2d 240, 242-43 (1st Cir.), Cert. denied, 393 U.S. 864, 89 S.Ct. 146, 21 L.Ed.2d 132 (1968); Birnbaum v. United States, 356 F.2d 856, 866 (8th Cir......
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    • United States
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    ...possible opportunity when, by doing so he can enable the trial judge to take the most efficacious action. Holden v. United States, 388 F.2d 240, 242-243 (1st Cir. 1968)." Saville v. United States, 400 F.2d 397 (1st Cir. 1968), cert. denied, 395 U.S. 980, 89 S.Ct. 2137, 23 L.Ed.2d 768 (1969)......
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