Cooper W. Gibson v. United States

403 F.2d 569

Opinions

BURGER, Circuit Judge:

This is an appeal from a conviction for taking indecent liberties with an eleven year old boy. 22 D.C. Code 3501(a) (1967). The prosecution case included direct evidence by the complaining witness and corroboration by his mother on substantial aspects of the elements of the crime. The boy’s mother and the boy were subjected to rigorous and effective cross examination. The District Judge allowed access to the Grand Jury minutes and parts of the minutes were used by defendant in arguing certain inconsistencies to the jury. The mother of complainant testified that she had reported the incident at once to guests in the house at the time. None of these were called by either party and there is no suggestion that they were more available to the Government than to the defense. Indeed the testimony of the mother was a challenge to produce the other guests and secure, if possible, a refutation of the mother’s testimony.

We find no basis for disturbing the judgment.¹

Affirmed.

1

. In closing argument the prosecution said:

“I tell you ladies and gentlemen, his whole testimony here tailored to meet the government’s case is a recent fabrication designed to lure you and hoodwink you. * * * ” On the whole record we conclude that this does not warrant reversal but we take occasion to emphasize that this was an impermissible statement; no evidence warranted this opinion-conclusion of the prosecutor. The truth or falsity of testimony is exclusively for the jury. Counsel may question whether witnesses are telling the truth but only if they remind the jury that credibility is for them alone; e. g., “I call your attention to the testimony of witnesses X and X and ask you to consider carefully whether they were telling the truth. If they were, then the complaining witness and his mother were lying. You must decide which to believe.” This form is permissible; the one used was not. It is counsel’s responsibility to know the ground rules and follow them. The presiding judge cannot anticipate that either counsel will deviate from the rules of appropriate argument and he is in a difficult position to try to remedy such deviation by an instruction. Defense counsel here did not request a remedial charge perhaps as a matter of sound tactics, but we have no doubt a remedial charge would have been given if requested. The District Judge’s charge to the jury was eminently fair and as we read it he sought to compensate indirectly for the impermissible comments of the prosecutor.

The dissenting opinion refers to another alleged impermissible statement of the prosecutor. There are only two sentences in the transcript which the dissent sets' out which are arguably incorrect — “You will recall Mrs. Matthews made a statement on April 4th also. No impeachment with that statement.” There was an immediate objection and the prosecutor at once corrected himself to clarify any misconception which the jury might have received. However, this was not the first time that statement had been referred to; the trial transcript reveals that the jury was informed of this statement on at least three occasions and by both counsel. Thus, the prosecutor’s statement was merely repetitious of that which had already been mentioned by both prosecution and defense counsel. The statement does not rise to the level of error involved in the cases cited by the dissent, Reichert v. United States, 123 U.S.App.D.C. 294, 359 F.2d 278 (1966) ; Johnson v. United States, 121 U.S.App.D.C. 19, 347 F.2d 803 (1965). In both of those cases there was affirmative argument that the contents of the alleged statement corroborated the testimony of the witness. The situation here is quite different. Indeed, after objection and correction by the District Judge, defense counsel made no further objection or request or motion; he therefore must be presumed to have been satisfied.