United States v. Val Zenith Jenkins

544 F.2d 180, 1976 U.S. App. LEXIS 6418

Opinions

PER CURIAM:

Val Zenith Jenkins’ major contention on this appeal from a judgment convicting him of possession and sale of counterfeit coins is that the United States Attorney violated his fifth amendment right against self incrimination by stating in the closing argument that the testimony of a witness, Jimmy James, was “uncontradicted.” Jenkins argues that since he was the only one who could have contradicted the testimony, the remark was, in effect, an improper comment on his failure to testify.

If the remark about Jaems’ testimony stood alone, Jenkins’ contention might well have merit. Cf. United States v. Flannery, 451 F.2d 880 (1st Cir. 1971). The prosecutor’s comment, however, must be considered along with the rest of his argument, which went on to point out that James’ testimony was corroborated by other evidence. Read in context, the remark concerning the “uncontradicted” testimony was not “manifestly intended to be, [nor] was it of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.” See United States v. Anderson, 481 F.2d 685, 701 (4th Cir. 1973), aff’d, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974); Newell v. Slayton, 468 F.2d 888, 890 (4th Cir. 1972).

Furthermore, the failure of the defense counsel to object at trial, coupled with the judge’s instruction that no inferences were to be drawn concerning the defendant’s failure to testify, lead us to conclude that plain error was not committed.

Affirmed.