Opinion for the Court filed by Circuit Judge WILKEY.
Dissenting opinion filed by Circuit Judge HARRY T. EDWARDS.
WILKEY, Circuit Judge:
The propriety of the prosecutor's closing remarks to the jury, an issue raised not infrequently in appeals, is the question
Appellant Eric Monaghan was charged in a six count
This sordid story begins with a chance encounter between Monaghan and Bart at a gay bar in Washington, D.C., in early September 1982.
Bart stayed with appellant for almost two weeks. Although the pair slept together in appellant's bed, the record discloses no further incidents of sexual misconduct. They spent the weekend of September 10-12 with friends of appellant at a beach in Delaware, where they happened to meet two social workers from Prince William County. When the workers recognized Bart, he informed them that he had "gotten out of detention and [his] parents [had] let [him] come down to the beach for the weekend."
Two days later Bart left appellant's house. He was subsequently apprehended by FBI agents while boarding a Trailways bus bound for New York. Upon his return to the Prince William County facility, Bart informed Ms. Kaufman of his stay with appellant. She later conveyed the information to an FBI agent. Arrest and a federal grand jury indictment ensued.
Monaghan contends that certain remarks by the prosecutor in his closing statement to the jury constituted impermissible comments on his failure to take the witness stand. We conclude that the remarks were not improper.
The fifth amendment protects the right to be free from compelled self-incrimination.
The difficulty for a reviewing court lies in determining whether the prosecutor has strayed beyond the rhetoric permissible in "the heat of argument"
Numerous decisions of this and other courts have defined the contours of the constitutional right to be free from adverse prosecutorial comment. A court must determine "whether, in the circumstances of the particular case, `the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.'"
Appellant offers no reason for believing that the prosecutor's statements were "manifestly intended ... to be a comment" on appellant's silence, nor does the record suggest such intent. When assessing the constitutionality of ambiguous prosecutorial remarks, an appellate court should not strain to reach the one interpretation which ascribes improper motives to the prosecutor. The government here was faced with an unenviable task. In order to prevail, it had to establish beyond a reasonable doubt that sexual misconduct had occurred between Monaghan and Bart in the privacy of Monaghan's bedroom, without once alluding to the fact that Monaghan had not taken the witness stand. Under these circumstances, virtually any reference to the illegal act could be interpreted as a reflection on appellant's silence. But such a hypertechnical reading of the prosecutor's language is neither mandated nor
We turn, then, to the second prong of the test, the effect which the statements "naturally and necessarily" would have had on the jury. This objective standard would clearly have been violated had the prosecutor commented directly on the failure of the appellant to testify. Under such circumstances, a jury might reasonably have construed the comment as an invitation to consider appellant's silence in assessing his guilt or innocence. At most, however, the prosecutor's statements in the present case constituted "only an indirect reference to appellant's failure to testify."
Even indirect comments can have the proscribed effect on a jury, but we believe that in this case they did not. The most significant of those remarks was the prosecutor's reference, in his closing argument, to the "uncontradicted" character of Todd Bart's testimony:
If appellant were the only person capable of contradicting Bart's testimony, the jury might logically have construed the prosecutor's statement as an allusion to appellant's silence.
Monedia Kaufman testified that, in her first and second conversations with Bart following his return to the detention facility, the youth made no mention of a homosexual encounter with Monaghan. In a subsequent conversation, Bart initially denied having had sex with appellant; only when Kaufman expressed disbelief did Bart concede that "maybe" he and Monaghan had slept together.
The prosecutor's statement was proper for another reason. Defense counsel had persistently challenged Bart's veracity on cross-examination, and it was up to the prosecutor to defend the credibility of his star witness. The prosecution cannot be shut off from fair comment on the strength of its own witness's testimony, particularly when it is relying principally on one witness and that witness has been severely challenged by the defense. A reasonable jury would have realized that the prosecutor's remark went to Bart's veracity rather than to appellant's silence.
Appellant contends that other statements by the prosecutor constituted impermissible references to his failure to testify, but we conclude otherwise. At one point in his rebuttal, the prosecutor pointed to appellant and said "[l]adies and gentlemen, one thing for sure. We don't know what your decision will be until you come back into the courtroom and give it to us. But one thing, deep in his heart Mr. Monaghan knows —."
Appellant also challenges a remark made by the prosecutor during his closing argument in regard to the corroboration required for the testimony of Bart, a minor. The prosecutor said:
The prosecutor might best have erred on the side of caution by using someone else's name as a means of illustrating the corroboration requirement; but it is significant that appellant's was not the only name mentioned. No reasonable juror would have construed the reference to appellant as a reflection on his decision not to testify.
An experienced trial judge heard the same prosecutorial remarks as the jury heard. He was required to be more sensitive than the members of the jury to the prejudicial effect statements by the prosecutor might have. In his opinion, the prosecutor's remarks here did not transgress
Appellant also challenges certain statements made by the prosecutor in his closing argument and rebuttal which, appellant contends, were designed to arouse the passion and prejudice of the jury. We conclude that the statements, even though in some cases improper, did not cause substantial prejudice to the appellant.
It is well established that a prosecutor may not make statements calculated to arouse the passions or prejudices of the jury.
One of the challenged statements clearly lay within the range of advocacy permitted the prosecutor. In his closing argument, the prosecutor asked the jury to "issue in this proceeding a public condemnation of Mr. Monaghan for his behavior with respect to Todd Bart by finding him guilty in a public forum by citizens of his own community of guilt beyond a reasonable doubt on each of the five charges."
A prosecutor may not urge jurors to convict a criminal defendant in order to protect community values, preserve civil order, or deter future lawbreaking.
On other occasions, however, the prosecutor engaged in the advocacy of exaggeration. In his rebuttal, he implied that the appellant should be held to a higher standard of behavior because he was a police officer:
As the government concedes, the reference to appellant as something less than an exemplary police officer was "irrelevant and unnecessary." So, too, we think, was the suggestion that appellant be held to a higher standard of conduct because of his occupation.
The prosecutor also sought to elicit sympathy for the victim. He rhetorically asked the jurors, "how will Todd Bart ever, ever find himself? How will he ever give up the street life and, at least, that part of the gay life when adults, such as Mr. Monaghan, are using him, in effect, as — to satisfy their own adult sexual gratification."
An appellate court should consider three factors in determining whether improper remarks by the prosecutor have substantially prejudiced a defendant's trial: the severity of the misconduct, the measures adopted to cure the misconduct, and the certainty of conviction absent the improper remarks.
The prosecutor's remarks here went beyond the bounds of approved advocacy, but the prejudice which they engendered was insubstantial or nonexistent. It is highly unlikely that a new trial would result in a different verdict. Under these circumstances, reversal of the original conviction is compelled neither by constitutional mandate nor equitable considerations of justice.
None of the prosecutor's remarks constituted impermissible comments on the appellant's failure to testify, and, while certain other remarks were exaggerated and improper, none caused the appellant substantial prejudice. The conviction is therefore
HARRY T. EDWARDS, Circuit Judge, dissenting:
The case against the defendant in this action was at best weak. The prosecution relied almost exclusively on the fragmented, inconsistent and repeatedly impeached testimony of a streetwise child prostitute, who is also a convicted thief and known liar. The prostitute admitted at trial that he acted out of anger in telling his tale about the defendant to the authorities — because he believed the defendant had reported his whereabouts to the police. At the time of the encounter between the prostitute and the defendant, the prostitute was a fugitive from either a psychiatric institute or a detention center. Viewed in this setting, the flimsiness of the case against the defendant is easily discerned.
Trial testimony focused on an obviously private encounter between the prostitute and the defendant, and the jury necessarily looked for testimony from the alleged participants. In this context, the right of a defendant to decline to take the witness stand, a right long guaranteed by the United States Constitution, is especially fragile; a jury might view the decision to remain silent as an admission either that any uncontradicted testimony must be true, or that the defendant has something to hide.
Courts have a role, albeit a limited one, in assuring through the use of instructions that a jury does not unfairly penalize a defendant for a decision to remain silent. For the most part, however, jurors are free to draw whatever conclusions they will from the defendant's silence, and the defendant has no means to know what conclusions jurors have reached, or to challenge them.
In marked contrast, courts have imposed a firm obligation on the prosecution not to exacerbate the problem by highlighting, in any way, the decision of the defendant not to testify. Both the Fifth Amendment and federal statutory law, 18 U.S.C. § 3481 (1982), prohibit comment on the refusal to testify; as the Supreme Court explained in Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 1232, 14 L.Ed.2d 106 (1965), such comment "is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly.... What the jury may infer, given no help from the court, is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another." Notwithstanding this pronouncement, in this case — in which the credibility of the complaining witness was so crucially at issue — the prosecution repeatedly drew the attention of the jurors to the defendant's silence. The result was not only to penalize this defendant for his constitutionally protected choice, but to do so in a case in which this penalty surely influenced the jury's decision-making. Accordingly, I dissent from the majority's decision to uphold the defendant's conviction.
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It is well-established that the Griffin rule prohibits indirect as well as direct comments on the defendant's failure to testify. As this court has held, "[t]he prosecutor need not directly comment on the defendant's silence to violate [the Griffin] rule, so long as the language used, in context, is such that `the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.'"
In the present case, of the several alleged examples of improper prosecutorial comment to which the defendant points, at least one might suffice, standing alone, to warrant reversal. Several other circuits, and numerous state courts, have ruled that statements that the testimony of a Government witness is "uncontradicted" or "unrefuted" constitute error, at least when it is clear that the defendant is the only person who might have provided the missing contradiction.
The facts of this case are paradigmatic; one could scarcely imagine a case more exemplary of the concerns of the cited courts than the present one, involving a prosecution for sodomy and for taking indecent liberties with a minor prostitute, who is also a convicted thief and an admitted liar. It cannot seriously be asserted that any one other than the defendant could have refuted the prostitute's testimony about their alleged sexual encounters in the defendant's bedroom. Nevertheless, in his closing argument, the prosecutor referred to the testimony of the prostitute and said, "His evidence is uncontradicted at this point that he had sex with Eric Monaghan." Trial Transcript ("Tr.") (Nov. 3, 1983) at 14. The prosecutor continued, "Now, when you listen to defense counsel they may argue to you that there, indeed, were contradictions. But listen to their argument carefully. I invite you to do that, please. And, you listen for the part of their argument that directs your attention to any evidence that you have heard or seen that contradicts Todd Bart that he had sex with Eric Monaghan." Id.
Any attorney would recognize this line of closing argument to be persuasive. It focuses the jury's attention on the act of sex between two persons, and on the presence of testimony from one, its absence from the other. By twice mentioning the defendant's name in this context, the prosecutor assured that the jury's attention would shift to the defendant. The cases cited in note 2, supra, make it clear that this precise strategy has been found by numerous courts to constitute reversible error. These decisions also recognize that a prosecutor's repeated use of this strategy is even more troublesome.
To be sure, several judicial opinions have concluded that a prosecutor's mere reference to uncontradicted testimony, on its own, will not constitute reversible error, whether because such a comment is not itself error, or is harmless error.
In the instant case, however, we have much more — enough, I believe, easily to establish both that there was error and that it was not harmless. First, the Government concedes that the prostitute's testimony that he had sex with Monaghan was contradicted on cross-examination by Bart's prior inconsistent statements. See Tr. (Nov. 1, 1983) at 225-227, 233, 235, 236; Brief for Appellee at 26. Therefore, in stating that Bart's testimony was uncontradicted, the prosecutor could only have meant that the prostitute's testimony was not refuted by Monaghan's testimony.
Second, the prosecutor made several remarks and at least one gesture that exacerbated his comments about the uncontradicted nature of Bart's testimony, thus highlighting the absence of testimony from Monaghan. In particular, the prosecutor referred to Monaghan by name when explaining to the jury the legal difference between the testimony of a child and that of an adult. He explained, "It's just one of the few distinctions that the law makes in the ability of a witness to take the stand and testify; a differentiation between a child, a youth, a minor, and perhaps in Mr. Monaghan's case or my case or Mr. Tuttle's case or your case as an adult." Tr. (Nov. 3, 1983) at 11-12. Similarly, in his rebuttal, the prosecutor pointed to Monaghan and stated that there is one thing that "deep in his heart Mr. Monaghan knows ...." Id. at 73. Defense counsel objected, interrupting the prosecutor, and the judge sustained the objection. Id. Regardless of what was to follow, the remark, coupled with all others, surely left the jury thinking that whatever Monaghan knew in his heart, he was not sharing it.
Third, immediately after the District judge cautioned the prosecutor to be "a little bit careful," id. at 17, about making comments that might highlight the fact that Monaghan failed to testify, the prosecutor said that "by the very nature of the offense," Bart "can be the only witness." Id. at 18.
Taken together, the offensive comments and gesture aggravated the prosecutor's initial error, reinforced the negative inference to be drawn, and assured that the individual comments would neither go unnoticed nor remain harmless.
Finally, the District judge denied defense counsel's proper requests for curative instructions. Under the circumstances of this case, error might nonetheless have been rendered harmless had the judge instructed the jury — preferably when the comments were made, but at least at the
The prosecution's repeated effort to remind the jury that Monaghan had not testified in his own defense places this case well beyond those involving mere references to uncontradicted testimony and, to my mind, requires a finding of error. Numerous courts have recognized that less egregious cases have resulted in harmful error, and require reversal, and their opinions persuade me that the same result should follow here. Particularly when, as here, it is not at all clear that the evidence is even sufficient to convict the defendant, and where the chief prosecution witness is a male harlot, convicted thief and known liar, who varies his tale with his mood, repeated comments on the defendant's failure to testify are especially troubling, and dangerous. They unjustifiably suggest to the jury that the complaining witness's testimony, because uncontradicted, is true. Absent a strong and immediate curative instruction, such inferences are likely to be drawn. I therefore am left with little doubt that the jury in this case disproportionately credited the prostitute's testimony — which, it must be recalled, was rife with inconsistencies and apparently was offered under a promise not to prosecute — as a result of the prosecutor's comments on Monaghan's silence. Under such circumstances, I conclude that the error was not harmless,
Tr. I at 199-200.
The dilemma of the defendant is always that his failure to testify puts him in an awkward position with the jury. There is no perfect cure that an instruction can effect, but this is one of the handicaps of being a defendant and not taking the witness stand. When a prosecution witness has been severely challenged by the defense, the government must have the opportunity to rehabilitate its witness by logical arguments, certainly among them being that on key points the witness was uncontradicted.
What the appellant argues for here is a perfect solution to the defendant's dilemma, but there probably is none. The instruction on failure to testify is least desirable when there has been no comment which, by the wildest stretch of imagination, could be interpreted as a reflection on the defendant's silence. Then such an instruction coming from the court would raise a red flag of a type which had not been raised before in the case. However, the standard approved instruction is designed for precisely the type of situation where, as here, there were several remarks which the defendant vigorously argues were comments on his failure to testify. The trial judge in the present case offered to give such an instruction, and it was refused.
318 U.S. at 247 n. 3, 63 S.Ct. at 566 n. 3 (quoting prosecutor). The Supreme Court termed the remarks "highly prejudicial." Id. at 248, 63 S.Ct. at 566. They constituted "an appeal wholly irrelevant to any facts or issues in the case, the purpose and effect of which could only have been to arouse passion and prejudice." Id. at 247, 63 S.Ct. at 566.
Id. at 586.
Some courts have held that appeals to the jury to act as the "conscience of the community" are not per se impermissible unless they are designed to inflame the jury. See United States v. Kopituk, 690 F.2d 1289, 1342-43 (11th Cir.1982), cert. denied, 461 U.S. 928, ___, 103 S.Ct. 2089, 2090, 3542, 77 L.Ed.2d 300, 300, 1391 (1983); United States v. Lewis, 547 F.2d 1030, 1037 (8th Cir.1976), cert. denied, 429 U.S. 1111, 97 S.Ct. 1149, 51 L.Ed.2d 566 (1977); cf. United States v. Shirley, 435 F.2d 1076, 1079 (7th Cir.1970) (prosecutor's reference to the increasing number of car thefts did not constitute "an emotional appeal to the jurors' self interest designed to arouse their prejudice against the defendant"); United States v. Alloway, 397 F.2d 105, 113 (6th Cir.1968) (prosecutor's reference to jury as "world conscience of the community," and request that jury "let the John Alloways know that this type of conduct will not be tolerated," did not exceed permissible bounds of advocacy).
A fourth factor which may be relevant in some cases is the extent to which the jury appears to have weighed the evidence in a rational, dispassionate fashion. Here, the jurors requested certain items of evidence during the course of their deliberations. Record at 49. It is unlikely that they would have done so had the prosecutor's remarks inflamed their passions and prejudices. Moreover, the jury found the appellant innocent of the two prostitution charges. Id. at 48.