II. Prejudicial Remarks in the Summation of Government Counsel
During the closing argument of governmental counsel, the defense objected to his reference to custodial officer witnesses as "not convicted criminals . . . paid and trained by you, the taxpayers" and as "brave men". The objection was sustained, the court commenting that such descriptions had no bearing on their credibility. The following day, immediately prior to the court's charge to the jury, defense counsel moved for a mistrial on the ground that government counsel had made reference to the witness Timms as a brave man who, by testifying, subjected himself to the possibility of being killed. The motion was denied and the court asked defense counsel if cautionary instructions were desired, to which a negative reply was received. At oral argument on this motion, defense counsel now complains for the first time that in government counsel's closing argument he expressed a personal belief in the defendant's guilt; that he expressed a personal opinion on defendant's credibility; and that he made emotional references to the "bloody" photographs of decedent.
An absence of objection to the remarks at the time of their utterance weighs heavily in the determination that they were not actually prejudicial. United States v. Lawson, 337 F.2d 800, 807 (3d Cir. 1964). Counsel is not entitled to lie low, say nothing and to bring up this fleeting argument months afterward as a basis for reversal. United States v. Kravitz, 281 F.2d 581, 587 (3d Cir. 1960). Moreover, a fair reading of the transcript reveals that government counsel's remarks cannot be considered as an expression of his personal opinion of defendant's guilt. At the very most his remarks fairly construed refer only to belief based on the evidence and not to an opinion formed from facts not in evidence. United States v. Schartner, 426 F.2d 470 (3d Cir. 1970). The remaining statements of which defendant complains were not prejudicial to his case. In the heat of dispute, some latitude must be given to lawyer's language, United States v. Lawson, supra, so long as he strikes hard blows and not foul ones. Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314 (1935). I think his comments were fair under the circumstances and, in light of all the evidence, if error at all, it would be harmless.
III. The Exclusion for Cause of Prospective Jurors Who Indicated That They Would Not Vote to Impose the Death Penalty
This argument is predicated on the granting of the government's challenges for cause of certain jurors who stated that they would automatically vote against the imposition of the death sentence no matter what the evidence at the trial would reveal. (N.T. 92-96) It should be apparent that defendant has no cause for complaint as the jury did not impose the death penalty. See Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968). In any event, the exclusion of the jurors fully complied with the guidelines set down by the Supreme Court in Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1967) and, consequently, defendant's argument is without merit.
IV. It was Reversible Error to Admit Color Photographs of the Decedent's Corpse
The photographs received in evidence in the government's case in chief depicted the stab wounds which led to death. As such they had probative value not only to illustrate the medical testimony on the cause of death but also as corroboration of the government's eyewitnesses. In addition, they had some bearing on the evaluation of defendant's testimony that he merely acted in self-defense while resisting decedent's attack. Photographs of the body are admissible so long as they have some probative value and are not intended solely to inflame the jury. Harried v. United States, 128 U.S. App. D.C. 330, 389 F.2d 281, 287 (1967). The admission or rejection of photographs lies largely in the sound discretion of the trial court. Maxwell v. United States, 368 F.2d 735, 739 (9th Cir. 1966). See also Comm. v. Clanton, 395 Pa. 521, 525, 151 A. 2d 88 (1959). The mere fact that the photographs were in color did not transform them into gruesome and unsightly exhibits. In sum, I conclude that the photographs were not introduced to inflame the jury and, moreover, were not so provocative as to arouse passion and resentment against the defendant in the minds of the jury.
V. The Attempt by Government Counsel to Introduce into Evidence a Statement of Defendant Without Showing that it was Made Voluntarily
It would appear that defendant made oral statements to government investigators shortly after the incident occurred. At the trial, there was no attempt to introduce these statements on the government's side of the case. However, while defendant was undergoing cross-examination, he was asked whether he had been interviewed by Agents of the Federal Bureau of Investigation; whether they had advised him of his rights; and whether they had questioned him concerning his involvement in the case.
This line of questioning was interrupted by the court and counsel were called to side bar. Government counsel indicated that he was attempting to lay the groundwork for rebuttal testimony because defendant had denied making any statement but the court directed him to cease this inquiry and there was no further reference to it.
Defense counsel now contends that the effect of this limited interrogation "was to raise in the minds of the jury the inference that the defendant had made an incriminating statement which was inadmissible for 'technical reasons'". This contention requires but a brief answer: (1) it cannot be reasonably argued that such an inference was raised; (2) the matter was first introduced into the case by defendant; (3) no objection was made by defense counsel; (4) the questioning was terminated by the court on its own initiative; and (5) the defendant received an undeserved benefit from the court's ruling inasmuch as the United States Supreme Court subsequently held in Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L Ed. 2d 1 (1970) that an accused's credibility may be appropriately impeached by use of an earlier conflicting statement even though it was inadmissible to establish the prosecution's case in chief under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). As in Harris there is no claim made here that the statements were coerced or involuntary.
Accordingly, defendant's motion for a new trial will be denied.