Holden v. United States, 6963.
Citation | 388 F.2d 240 |
Decision Date | 24 January 1968 |
Docket Number | No. 6963.,6963. |
Parties | Frank Leslie HOLDEN, Defendant, Appellant, v. UNITED STATES of America, Appellee. |
Court | United 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.
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):
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:
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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