Alton Turner v. United States

THORNBERRY, Circuit Judge

(dissenting) :

With deference, I dissent. As the majority points out, “there is no dispute that the U. S. Attorney’s statements were based on testimony in the trial.” That testimony was elicited from appellant on cross-examination and was received into evidence without objection. It is as follows:

Mr. Orbach: “Did you have any access to narcotic drugs while in the hospital?”
Alton Turner: “There are narcotic drugs in the operating room.”
Mr. Orbach: “Did you have access to them.”
Alton Turner: “Yes, Sir.”

The impropriety of the statements made by the U. S. Attorney is no altogether apparent. He neither misstated the facts nor injected into his argument extraneous matters not properly before the jury. See Luttrell v. United States, 5th Cir. 1963, 320 F.2d 462, 465; Orebo v. United States, 9th Cir. 1961, 293 F.2d 747, 749; United States v. Pepe, 2d Cir. 1957, 247 F.2d 838, 844. He only restated a fact already in evidence. Under the circumstances, this would seem to fall short of the degree of prosecutorial misconduct generally required to vitiate a conviction. See, e. g., Rubin v. United States, 5th Cir. 1969, 414 F.2d 473, [No. 24552, July 23, 1969], pp. 4-5; Feguer v. United States, 8th Cir. 1962, 302 F.2d 214, 254; United States v. Persico, 2d Cir. 1962, 305 F.2d 534, 537.

In any event, I cannot agree that the statements, if improper, were prejudicial. It is doubtful that the prosecutor’s reference to appellant’s access to narcotics in the course of his lawful employment in the hospital in Atlantic City, New Jersey led the jury to conclude that appellant must therefore have sold narcotics in Miami, Florida on the occasion in question. Unlike Washington v. United States, 5th Cir. 1964, 327 F.2d 793, and Handford v. United States, 5th Cir. 1957, 249 F.2d 295, relied upon by the majority, the prosecutor has not reached outside the record and injected completely extraneous and highly prejudicial elements into the case.1 Certainly the case, unlike Berger v. United States, 1935, 295 U.S. 78, 89, 55 S.Ct. 629, 633, 79 L.Ed. 1314, was not infected with “pronounced and persistent” misconduct by the prosecutor. Although the statements were, as the majority emphasizes, “unrelated to the charge,” their potentially inflammatory effect, if any, was cured when the trial court sustained the objection immediately lodged by appellant’s counsel. Inasmuch as the trial judge had on three occasions instructed the jury as to the effect of his rulings on objections, the court’s action would seem sufficient to obviate the adverse impact of the statements, even though the trial judge, who was not requested to do so, did not admonish the jury to disregard them.

. In Handford v. United States, supra, the prosecutor imputed responsibility for highway accidents to a defendant charged with possession of non-tax-paid whiskey, stating that he had “too many of Iris friends” and “friends’ children get run over, up and down the highways.” 249 F.2d at 298.

In Washington v. United States, supra, the prosecutor stated, as a ground for convicting a defendant charged with unlawful possession of non-tax-paid whiskey, that the “people who live in the district have a right to be secure in their homes,” and that if the Government undercover agent responsible for the defendant's arrest had been discovered, “his life could have been in danger.” 327 F.2d at 794.