United States v. Lamerson, 71-2353.
| Decision Date | 23 March 1972 |
| Docket Number | No. 71-2353.,71-2353. |
| Citation | 457 F.2d 371 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Clyde LAMERSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Louis R. Koerner, Jr., New Orleans, La., Court-appointed, for defendant-appellant.
Gerald J. Gallinghouse, U.S. Atty., Stephen L. Dunne, Asst. U.S. Atty., New Orleans, La., for plaintiff-appellee.
Before RIVES, COLEMAN and DYER, Circuit Judges.
On November 5, 1970, appellant Lamerson was arrested for allegedly attempting to cash a stolen Social Security benefits check. Subsequent to his arrest, a one-count indictment was obtained charging Lamerson with violating 18 U.S.C. § 1708 (), but on February 4, 1971, this indictment was dismissed in favor of a two-count indictment charging Lamerson on Count 1 with violating 18 U.S.C. § 1708 and on Count 2 with violating 18 U.S.C. § 495 (). Lamerson plead guilty to Count 1 of the indictment. However during the course of a presentence investigation he maintained his innocence so avidly that his counsel filed a motion to withdraw the plea of guilty. That motion was heard and granted. Thereafter Lamerson was tried to a jury and convicted on Count 1 but acquitted on Count 2.
Lamerson seeks reversal of his conviction on Count 1 urging some eleven specifications of error to this Court. With respect to one of his contentions— that certain of the prosecuting attorney's closing statements to the jury constitute reversible error—we agree and accordingly reverse the decision below. Having found error in that regard we find no need to pass on Lamerson's other contentions.
By objecting at trial Lamerson's attorney preserved the right to have this Court review the propriety of the prosecution's closing argument. Having made that review we find that two of the statements which the prosecuting attorney made to the jury were highly prejudicial. At one point he stated:
(Tr. 122). (Emphasis supplied.)
This type of comment has repeatedly been held to amount to reversible error. E. g., United States v. Brown, 5 Cir.1971, 451 F.2d 1231; Gradsky v. United States, 5 Cir.1967, 373 F.2d 706; McMillian v. United States, 5 Cir.1966, 363 F.2d 165. The Government's proof was not so clear as to render the error harmless. It is somewhat indiscrete for the prosecutor to comment on his own personal assessment of the credibility of the witnesses, even when that assessment derives solely from what the witnesses have said while on the stand. When he makes a statement which could be construed by the jury as implying that he has additional reasons for knowing that what one witness has said is true, which reasons are not known to the jury, such comment is no longer mere indiscretion but constitutes reversible error. Here, the...
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