Without attempting to justify my actions, for I feel such a justification is unnecessary, my questioning of Edward Smith lasted no more than three minutes, in a trial that covered four full days. It was not meant to fortify the impression of Mr. Smith's testimony, but was rather directed at clarifying whether Edward Smith said anything to Wilkins and Lilton Smith about leaving his home and releasing Mrs. Dugger, an area which, although admittedly covered on direct examination, was not dealt with in great depth.
My questioning fell far short of the judicial excess which exists when a trial judge creates an appearance of partiality either by intervention on the side of one of the parties or by continued interruption of the other party. Liddy, supra, 509 F.2d at 438. This was but an isolated incident where I felt some clarification was necessary. To hold that such questioning was prejudicial and intentionally partial shows a misunderstanding of a trial judge's role. Even so, assuming arguendo that my conduct was error, it must be ranked as harmless rather than prejudicial.
III. The Court's Denial of Defendant's Right to Comment on Lack of Evidence Regarding the Medical Examination
Defense counsel's third point is that I committed reversible error when I refused to let him argue to the jury that the prosecution's case was weakened because the results of medical tests on Loretta Dugger had not been offered in evidence. Specifically, he contends that when a victim of an alleged rape is examined at a hospital, a smear is taken to determine the presence of semen and that as a matter of routine, these smears are catalogued by type of sperm.
First of all, this was not a rape case. Although Loretta Dugger testified that she had been raped, defendant was charged with kidnapping, violating the Mann Act, and conspiracy. Establishing that Mrs. Dugger had been raped was not an essential element of the government's proof. Secondly, there was no evidence that such a test exists, and if so, that it is routinely performed. Most important of all, there was no evidence that such a test had been performed on Loretta Dugger. It is elementary that counsel should confine closing argument to matters of record, United States v. Gibson, 513 F.2d 978, 980 (6th Cir. 1975), and although he may comment that the absence of objective findings shows a flaw in the prosecution's case, some foundation must have been laid by testimony that such evidence was obtained or could have been obtained.
Here, the only testimony came from defense counsel. Of course, counsel may not give any testimony, much less medical testimony, and most of all, counsel may not testify as an expert during his final summation.
In the third place, while it is true that the failure of a party to produce a witness who is particularly within his control creates the inference that such testimony would be unfavorable, and while that failure may be the subject of comment by the other party, United States v. Blakemore, 489 F.2d 193, 195 (6th Cir. 1973), any inference from a party's failure to call a witness equally available to both parties is impermissible. Labit v. Santa Fe Marine, Inc., 526 F.2d 961, 963 (5th Cir.), cert. denied 429 U.S. 827, 97 S. Ct. 82, 50 L. Ed. 2d 89, 45 U.S.L.W. 3250 (1976). Expert witnesses who could have explained what tests were conducted on Mrs. Dugger were just as accessible to defendant as they were to the prosecution, the examination having been made at Philadelphia General Hospital, a public facility independent of the federal government. Since no adverse inference could arise in this case, defendant could not comment on the government's failure to call a witness, and he was properly excluded from doing so.
IV. The Allegations of Prosecutorial Misconduct.
Defendant's next two contentions of error stem from certain comments made by the Assistant United States Attorney during his closing argument. To be assessed, these contentions must be placed in their proper perspective.
While he was addressing the jury, defense counsel expressed his opinion concerning Mrs. Dugger's degree of sophistication,
his opinion as to what took place between Wilkins and Mrs. Dugger,
and, as previously noted, his opinion as to scientific and medical tests. In rebuttal the Assistant United States Attorney addressed himself to counsel's version of the events and said that the only place where such a story existed was in counsel's mind. This comment is assigned as prosecutorial misconduct on the theory that it suggested to the jury that defense counsel was guilty of fabrication.
Perhaps the comment of the Assistant United States Attorney was a bit direct, but it was accurate. There was nothing in the testimony to support counsel's argument. Although a lawyer may suggest, urge, advocate, assert, and contend in his closing speech, he should not give his personal beliefs or state as factual matters not in evidence.
If he does so, counsel should not take offense when in a single sentence his adversary points out what he has done. Moreover, it is not unfair for a prosecutor to remind the jury that the summation they have just heard was based on surmise instead of substance. Even a prosecutorial misstatement made in response to, and in rebuttal of, an improper inference suggested by defense counsel will not result in reversible error. United States v. Somers, 496 F.2d 723, 741 (3rd Cir.), cert. denied, 419 U.S. 832, 95 S. Ct. 56, 42 L. Ed. 2d 58 (1974).
The defendant's second assertion of prosecutorial misconduct is that the Assistant United States Attorney appealed to the passions and prejudice of the jury when he argued:
Mrs. Dugger told you a little bit about her background. Mr. Pallastrone [defense counsel] went to great lengths in his questions to trump up certain aspects of her background in an attempt to discredit her, and we don't suggest to you that Mrs. Dugger should be the image by which you should set your lives or expect anybody else to set your lives. But nonetheless I suggest to you she is a totally believable person, a person who had the ill luck to be the one who happened to be driving down that road when Mr. Wilkins and the other man drove by and decided to enter into a course of conduct: kidnapping and sexual assault. It could just have easily been a person with any other type of background, . . . (N.T. 580).