United States v. Parker

• Decision Date: 27 October 1969
• Docket Number: 22542.,No. 22327,22327
• Citation: 136 US App. DC 97,419 F.2d 679
• Parties: UNITED STATES of America v. Larry F. PARKER, Appellant. UNITED STATES of America v. Alfred C. THURSTON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

136 US App. DC 97, 419 F.2d 679 (1969)

UNITED STATES of America v. Larry F. PARKER, Appellant.

UNITED STATES of America v. Alfred C. THURSTON, Appellant.

Nos. 22327, 22542.

United States Court of Appeals District of Columbia Circuit.

Argued September 24, 1969.

Decided October 27, 1969.

Mr. John M. Bixler, Washington, D. C. (appointed by this court) for appellants. Mr. Edwin A. Heisler (appointed by this court), Washington, D. C., was on the brief, for appellants.

Mr. Harvey S. Price, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., and Roger E. Zuckerman, Asst. U. S. Atty., were on the brief, for appellee. Messrs. David G. Bress, U. S. Atty., at the time the record was filed, and John A. Terry, Asst. U. S. Atty., also entered appearances for appellee. Mr. D. William Subin, Asst. U. S. Atty., entered an appearance for appellee in No. 22,542.

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

PER CURIAM:

On December 24, 1966, four men robbed a paint store in the District of Columbia. Two men, not appellants here, were arrested shortly thereafter in an alley near the store and subsequently identified as two of the men involved in the robbery. Appellants, arrested shortly thereafter in the nearby apartment of one Delores Callaway, were convicted of robbery and assault with a deadly weapon. They appeal these convictions here.

Neither of the victims of the robbery could identify appellants and although some of the proceeds of the crime as well as two guns and a mask apparently used in its perpetration were found in the apartment, appellants' conviction rests primarily upon the testimony of one of the alleged accomplices. Appellants claim that the prosecutor, in his summation, improperly implied that undisclosed government evidence would bolster its admittedly weak case; that they were deprived of their right to a speedy trial; and that the trial judge erred in failing to direct a verdict of acquittal at the close of the government's case.

In his closing argument, the prosecutor stated:

There is no question that someone went into the paint store, someone pointed a gun at Mr. Cipolair and knocked him down and took his wallet. * * *

The only question is who was there and who participated in the robbery? Two of the people who participated in the robbery — the government\'s evidence is not all before you today, Delores Callaway and the other juvenile or other juvenile, McKinley Thomas. The only two people in front of you are the only ones we are concerned with and these are these two defendants, Alfred Thurston and Larry Parker.

(Tr. 201). The prosecutor seems to have intended to emphasize to the jury that although the evidence indicated that five persons may have participated in some phase of the robbery,¹ only two defendants were before them. Defense counsel, although not objecting to the statement when it was made, complained in his summation that the prosecution was seeking to rely upon undisclosed evidence (Tr. 211). On rebuttal, the prosecutor denied any such intention:

I didn\'t say all of the evidence possible. I said all of the evidence possible in every case. In this case there were no fingerprints. In this case neither of the complaining witnesses could identify these defendants. In this case there was no proceeds found on the persons of these boys as they ran up the street or something of that sort. This is not a bank robbery case so there is no photograph. There was no attempt to take a photograph. There was the attempt to get the fingerprints and there was testimony concerning the fingerprint powder. They tried to find the evidence and they couldn\'t.

(Tr. 227). In other words, the prosecutor, apparently through inadvertence, had made a statement arguably carrying the improper implication that the government had undisclosed, incriminating evidence. Defense counsel objected to the implication, and the prosecutor responded with an honest admission that the government had no incriminating evidence that had not been introduced. We do not believe that the prosecutor's initial statement, even if interpreted by the jury to carry the improper implication, was of such nature that it could not be cured by a subsequent disclaimer; and we believe that the prosecutor's subsequent disclaimer was full, fair, and adequate. Compare Bradley v. United States, 136 U.S.App.D.C. ____, 420 F.2d 181 (September 10, 1969), where no such cure was attempted.

Appellants also object to the prosecutor's remarks concerning the absent Delores Callaway.² In his rebuttal, the prosecutor stated:

Delores Callaway didn\'t

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