Ralph H. Allen v. United States

273 F.2d 85, 106 U.S. App. D.C. 350, 1959 U.S. App. LEXIS 2981

• Court: Court of Appeals for the D.C. Circuit
• Decided: December 3, 1959
• Docket: 14876_1
• Status: Published

Opinions

PER CURIAM.

This is an appeal from a conviction for forging and uttering promissory notes. One of the grounds urged for reversal concerns the prosecutor’s assertion, in his opening statement to the jury, that after appellant was arrested he “was advised of the charges against him and Detective Sgt. Ben Clark of the Metropolitan Police Department will testify to you, ladies and gentlemen, that upon advising the defendant of the charges against him, he refused to make any statement whatsoever concerning it.” The prosecutor never offered the promised evidence. The detective was not. called to testify.

Ordinarily, a prosecuting attorney’s failure to prove an assertion he-made in his opening statement is prejudicial to the Government, not the defendant. Nichamin v. United States, 6 Cir., 1920, 263 F. 880, 882; Williams v. United States, 1925, 55 App.D.C. 239, 241, 4 F.2d 432; United States v. Smith, 7 Cir., 1958, 253 F.2d 95, 98. Assuming, without deciding, that there can be instances in which an opening averment of a prosecutor, if unproved, may be so prejudicial to the defendant as to require reversal, we think there was no prejudice to the appellant here, for he chose to be a witness at his trial, and testified at length.. The prosecutor’s unsupported assertion that he refused to talk to the police was. not startling and does not appear to have been emphasized. We think the possibility, if any, that it made so strong an-impression on some jurors as to influence their votes three days later, despite Allen’s intervening testimony, is too remote to require us to conclude that his substantial rights were affected.

Other reasons for reversal advanced by appellant have been considered and rejected.

Affirmed.