United States v. Irvin L. Stevenson, United States of America v. Bernard I. White

424 F.2d 923, 138 U.S. App. D.C. 10, 1970 U.S. App. LEXIS 10500
CourtCourt of Appeals for the D.C. Circuit
DecidedMarch 3, 1970
Docket22924, 22925
StatusPublished
Cited by19 cases

This text of 424 F.2d 923 (United States v. Irvin L. Stevenson, United States of America v. Bernard I. White) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Irvin L. Stevenson, United States of America v. Bernard I. White, 424 F.2d 923, 138 U.S. App. D.C. 10, 1970 U.S. App. LEXIS 10500 (D.C. Cir. 1970).

Opinions

TAMM, Circuit Judge:

Answering a radio dispatch which reported people breaking into a store (Tr. 16), two police officers arrived at the Mosby Jewelry Store at 1421 U Street, N.W. in Washington, at approximately 5:00 a. m. on June 18, 1968. Their arrival directly in front of the store was about “one minute” after receipt of the radio call. (Tr. 17.) It was “light.” (Tr. 17.) Upon arrival, with their car facing the jewelry store, they saw through the windshield a broken window in the store and “three or four” men standing in front of the broken window who were “reaching in through the window, grabbing items. Other ones were bending down picking items up off the pavement.” (Tr. 38.) The squealing brakes of the police car caused the three or four men to turn towards the police car and “beg[in] to run.” (Tr. 40.) One of the police officers, Officer Farr, observed that appellant White “had reached through and was looking at what I believed to be some kind of a medallion, a stringy object of jewelry, looked like a medallion and when he turned around he dropped it and ran.” (Tr. 40-41.) Officer Farr observed appellant Stevenson “reaching through the window, grabbing hands full of things and be [sic] alternating between sticking it in his pocket and sticking it in a little bag he was carrying. He did the same thing, began to move away, running toward the same direction * * (Tr. 41.)

Officer Farr pursued both appellants, apprehended appellant White, and “a few feet on down further” apprehended appellant Stevenson and placed both under arrest. (Tr. 41.) A search of White did not disclose anything “taken from the store,” but a search of Stevenson’s person resulted in the finding of “two little paper sacks full of articles,” and “numerous articles stuffed in his pockets of his coat and his pants” (Tr. 42) which were subsequently identified as store property by the proprietor, Mr. Mosby. (Tr. 80-82.) A third person, pursued by the second officer, Adams, was not apprehended. (Tr. 27-28.)

Upon these facts, appellants White and Stevenson were both charged in a two-count indictment with burglary II (22 D.C.Code § 1801(b) (Supp. II 1969)) and petit larceny (22 D.C.Code § 2202 (1967)). A jury found Stevenson guilty on both charges but convicted White only of burglary.

I

We are urged by appellants’ court-appointed counsel to reverse these convictions, first on the ground that the evidence was insufficient to permit the submission of the case to the jury on charges of second degree burglary. We cannot credit this argument because the testimony of Officer Farr, standing alone, was sufficient to establish a prima facie case for the Government. The defense [925]*925of each appellant was an attempt to justify his casual presence in front of the jewelry store at the time of the officers’ arrival, augmented by Stevenson’s testimony that he was arrested while picking up a bag of jewelry which he noticed near a truck parked in front of the store. Certainly upon this record the trial judge was required to deny appellants’ motion for a judgment of acquittal at the termination of the Government’s case-in-chief. Thereafter the appellants’ testimony raised issues of fact which could be resolved only by the jury. Exercising their recognized responsibility for evaluating the relative credibility of the witnesses, the jury accepted the police officers’ testimony and rejected the appellants’ versions. We conclude that as indicated the Government’s case was sufficient for submission to the jury, and the verdict as found by the jury is supported by substantial evidence.

II

Next we are asked to characterize the prosecuting attorney’s closing arguments as exceeding permissible bounds, constituting “plain error,” and requiring reversal. We have had too frequent occasion to express our concern that in the heat of trial Government counsel does at times abandon the limits of professional advocacy and indulge in verbal outbursts which are factually inaccurate, improper in form, prejudicial in phraseology, or illegal in substance. See generally United States v. Hayward, 136 U.S.App.D.C. 300, 420 F.2d 142 (Nov. 18, 1969); Gass v. United States, 135 U.S.App.D.C. 11, 416 F.2d 767 (1969); Gibson v. United States, 131 U.S.App.D.C. 163, 403 F.2d 569 (1968); Harris v. United States, 131 U.S.App.D.C. 105, 402 F.2d 656 (1968); Corley v. United States, 124 U.S.App.D.C. 351, 365 F.2d 884 (1966). These cases illustrate our concern for and sensitivity to any overreaching by prosecutors in their arguments, and define the standards which must govern in this area.

The substance of the argument challenged herein arose as a result of the obvious conflict between the testimony of the officers and the testimony of the appellants. Government counsel advised the jury in substance that if they believed appellants’ testimony, then they must conclude that the police officers are “out- and-out liars.” (II Tr. 30.) The logic of this reasoning — that if the jury accepted the appellants’ testimony as truthful it must reject the officers’ testimony as untruthful — is unquestionable. We have, as the above-cited cases reflect, looked unfavorably upon counsel’s characterization of a witness as a “liar,” but the resulting prejudice, if any, must be evaluated in the full context of the questioned statement. Here, if counsel had argued that the jury could not accept both sets of testimony but must, under the guidelines contained in the court’s charge, determine which witnesses were and which witnesses were not telling the truth, we doubt that any contention could be made that prejudice to the defendants resulted. The phraseology of the challenged statement herein does not commend itself to us as a model of restrained comment, but we do not consider that upon the entire record it rises to the status of plain error. We note that defense counsel made no objection to the argument in the trial proceedings, and consequently, we must evaluate the record on the basis of our holding in Harris v. United States, supra. Probing further, however, we note that insofar as counsel’s suggestion of untruth was concerned, it was addressed to the Government’s witnesses. Without in any way making a determination of prejudice dependent upon an exercise in semantics alone, we conclude that the challenged argument was not so prejudicial as to require, or justify, reversal.

Further challenge in this area is addressed to portions of the argument in which Government counsel used the phrases “lucky enough to catch somebody right in the act” and to “catch them red-handed” in describing the case on the basis of the police officers’ testimony. (II Tr. 16.) The quoted words, read in the full context of the argument, cannot [926]

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Bluebook (online)
424 F.2d 923, 138 U.S. App. D.C. 10, 1970 U.S. App. LEXIS 10500, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-irvin-l-stevenson-united-states-of-america-v-bernard-i-cadc-1970.