U.S. v. Williams

• Decision Date: 23 October 1975
• Docket Number: No. 74-2059,74-2059
• Citation: 172 U.S.App.D.C. 290,521 F.2d 950
• Parties: UNITED STATES of America v. Norman WILLIAMS, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 950

521 F.2d 950

172 U.S.App.D.C. 290

UNITED STATES of America v. Norman WILLIAMS, Appellant.

No. 74-2059.

United States Court of Appeals District of Columbia Circuit.

Argued May 23, 1975.

Decided Oct. 23, 1975.

Thomas W. Kirby, ^* with whom Sherman L. Cohn, Washington, D. C. (appointed by this court), Edwin J. Bradley, Washington, D. C., and Lese Joslyn * were on the brief, for appellant.

James M. Hanny, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Stuart M. Gerson and John E. Drury, III, Asst. U. S. Attys., were on the brief, for appellee.

Before McGOWAN, Circuit Judge, GEORGE C. EDWARDS, Jr., ^** Circuit Judge for the Sixth Circuit, and TAMM, Circuit Judge.

McGOWAN, Circuit Judge:

Appellant and a codefendant, Frank P. McDowell, were charged with bank robbery in violation of 18 U.S.C. § 2113(a) (1970). At a joint trial, appellant was convicted and McDowell was acquitted. Appellant assigns a number of grounds of error, only two of which we consider below. For reasons stated hereinafter, we affirm.

I

On March 22, 1974, a man approached a teller window of the Public National Bank at 1203 E. Street, N.W., in Washington, and presented Ms. Carton, the teller, with a note reading: "This is a holdup. You will die if you don't obey." ¹ Ms. Carton reached into her drawer five times to get money to give the robber. She never saw him remove the money from the counter, but did have ample opportunity to observe him from close range. A second, taller man, standing from seven to ten feet behind the robber, approached the counter, reached out his arm, and returned it to his side grasping money in his palm.

After the film in the bank's surveillance cameras had been processed, an FBI agent showed Ms. Carton two still photographs printed from the surveillance film, and she identified the men in the photographs as those who robbed her. On April 5, the agent returned and showed Ms. Carton ten photographs, from which she selected two, identifying the man who passed her the note as appellant and the taller man behind him as McDowell. On April 16 and 23, Ms. Carton made lineup identifications of McDowell and appellant respectively.

Appellant was arrested on April 17 and taken into custody. While at the Robbery Squad office of the Metropolitan Police Department, he was shown seven photographs taken during the robbery. He "giggle(d)" and "smiled" ² and then gave an oral confession admitting commission of the robbery. Both appellant and McDowell failed to testify or to present any witnesses at trial.

II

We first consider appellant's claim that the prosecutor improperly commented upon appellant's silence. During the cross-examination of a police detective concerning appellant's post-arrest statement, defense counsel asked a series of questions about appellant's ability to read and therefore to understand the forms he signed acknowledging that he understood his Miranda rights. Appellant's counsel asserts that these questions were designed to explore the voluntariness of his client's statement, although the detective had already testified during the suppression hearing and on direct examination that appellant read and signed the forms. ³ After several such questions and answers, the prosecutor stated before the jury: "Your Honor, I assume that Mr. Levie (defense counsel) is going to introduce evidence either positive or negative on the questions that he is making." ⁴ Appellant's counsel objected and moved for a mistrial, claiming that the prosecutor's comment suggested to the jury that the defendant was under a duty to present evidence. The trial judge denied the motion, stating

"Well counsel, I don't believe you have any standing to ask for a mistrial in view of the fact that you caused the whole thing.

"Now, you are making an innuendo which you knew was without any basis before this jury. Now, you are stuck with it." ⁵

No cautionary instruction was sought or given.

It is clearly established that both the Fifth Amendment, See Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), and 18 U.S.C. § 3481 (1970), See Wilson v. United States, 149 U.S. 60, 13 S.Ct. 765, 37 L.Ed. 650 (1893), prohibit a prosecutor from making adverse comment before the jury on a defendant's failure to testify. In determining whether a remark falls within the boundary of that prohibition, the test is whether, in the circumstances of the particular case, "the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify." Knowles v. United States, 224 F.2d 168, 170 (10th Cir. 1955); Accord, e. g., United States v. Sanders, 466 F.2d 673, 674 (9th Cir. 1972) (Per curiam ); United States v. Mahanna, 461 F.2d 1110, 1114, 1115 (8th Cir. 1972); Davis v. United States, 357 F.2d 438, 441 (5th Cir.), Cert. denied, 385 U.S. 927, 87 S.Ct. 284, 17 L.Ed.2d 210 (1966); United States ex rel. D'Ambrosio v. Fay, 349 F.2d 957, 960-61 (2d Cir. 1965), Cert. denied, 382 U.S. 921, 86 S.Ct. 301, 15 L.Ed.2d 235 (1965).

Taking the first half of this test, we do not believe that the prosecutor's comment was intended to call the jury's attention to appellant's failure to testify; it appears to have been an objection rather to a line of questioning as resting on an inadequate factual basis and being pursued in less than good faith. Turning to the second half of the test, we believe the comment can be regarded at most as only an indirect reference to appellant's failure to testify. Appellant could have introduced evidence on his ability to read other than by himself taking the stand. Furthermore, the statement was made before the prosecution had concluded its case in chief; because the jury could not then have realized that defendant would remain silent throughout the trial, the remark is unlikely to have attracted their attention to a failure to testify. Finally, the statement by its terms did not refer specifically to the defendant's failure to testify or invite the jury to consider such a failure in weighing the evidence. Hence, we find the jury would not "naturally and necessarily" take the remark to be a reference to appellant's failure to testify. ⁶

Though we find no error, we are not impressed with the prosecutor's conduct in this instance, creating as it did an unnecessary problem on appeal. He could easily have registered his objection in more precise terms to appellant's questioning early on, rather than waiting until several questions and answers had been completed. Had he succeeded in derailing the entire line of inquiry, any problem now thought to exist would have disappeared. More important, his remark before the jury violated the "strict observance" of his obligation to avoid any adverse comment to the jury that "has been many times commendedto prosecuting attorneys." White v. United States, 114 U.S.App.D.C. 238, 314 F.2d 243, 246 (1962).

III

The second claim we consider is that of prejudice by reason of the trial judge's refusal to grant appellant's request for a general instruction to the jury that no inference of guilt should be drawn from either defendant's refusal to testify. ⁷ The exchange on this subject at the conference before the jury was charged, reproduced below, ⁸ reveals that the judge initially acceded to this request, but later changed her mind when appellant's codefendant objected on the ground that a general instruction would call attention to his failure to testify. The judge offered instead the following instruction: "(E)very defendant in a criminal trial has an absolute right not to testify. You must not draw any inference of guilt from Mr. William's (sic) not testifying." ⁹ Appellant's counsel objected to the proposed substitute because it highlighted his client's failure to testify, a problem the trial judge had already acknowledged, ¹⁰ and withdrew his request in light of the substitute proposed. No instruction concerning failure to testify was given.

Appellant now asserts that the refusal to grant his request for a general instruction constitutes prejudicial error. As a substantive matter his argument has considerable merit. Bruno v. United States, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257 (1939), held that criminal defendants have a right under 18 U.S.C. § 3481 (1970) to have a failure to testify instruction read if requested. However, there is no similar right of defendants to insist that such an instruction Not be given. It is well-established that it is not error for a trial judge to read such an instruction to the jury where the judge includes the instruction on his own initiative, United States v. Carter, 422 F.2d 519, 520-21 (6th Cir. 1970); United States v. Schwartz, 398 F.2d 464, 469-70 (7th Cir. 1968), Cert. denied, 393 U.S. 1062, 89 S.Ct. 714, 21 L.Ed.2d 705 (1969); Hanks v. United States, 388 F.2d 171, 175 (10th Cir. 1968), Cert. denied, 393 U.S. 863, 89 S.Ct. 144, 21 L.Ed.2d 131 (1969); Bellard v. United States, 356 F.2d 437, 439 (5th Cir. 1966), Cert. denied, 385 U.S. 856, 87 S.Ct. 103, 17 L.Ed.2d 83 (1966); United States v. Garguilo, 310 F.2d 249, 252 (2d Cir. 1962), or even over the objection of the sole defendant in a criminal case, United States v. McGann, 431 F.2d 1104, 1109 (5th Cir. 1970) Cert. denied, 401 U.S. 919, 91 S.Ct. 904, 27 L.Ed.2d 821 (1971); United States v. Wick, 416 F.2d 61, 62-63 (7th Cir.), Cert. denied, 396 U.S. 961, 90 S.Ct. 436, 24 L.Ed.2d 425 (1969); Lyons v. United States, 109 U.S.App.D.C. 103, 284 F.2d 237 (1960) (Per curiam ), Cert. denied, 365 U.S. 821, 81 S.Ct. 705, 5 L.Ed.2d 699 (1961); Franano v. United States, 243 F.Supp. 709, 711-12 (W.D.Mo.1965). ¹¹ A fortiori, in a joint prosecution of multiple defendants, it has consistently been held that a judge does not commit error by granting one defendant's request for a general instruction over the objection of one or more codefendants. United States v. Schroeder, 433 F.2d 846,...