United States of America, Appellee, v. Willie Isaiah Dawkins, Appellant, 562 F.2d 567 (8th Cir. 1977)

Defendant-appellant Willie Isaiah Dawkins was convicted in district court on an indictment in two counts charging him with distributing a total of approximately seven grams of heroin in violation of 21 U.S.C. § 841(a) (1). On appeal, defendant urges as grounds for reversal (1) the trial court's giving of an Allen-type instruction, and (2) alleged prosecutorial misconduct in making certain remarks during closing argument. Defense counsel failed to object to these alleged errors at trial and our review of the record convinces us that neither ground rises to the level of plain error. Accordingly, we affirm.

Trial of this case commenced on December 27, 1976. The jury returned its verdict of guilty on December 29. At trial the government produced and relied upon the testimony of Agent Timothy Shanley and Mr. Robert Adams, the latter being an acquaintance of defendant Dawkins. Both men testified that on August 16, 1976, and again on August 23, they went to Dawkins' apartment in St. Paul, Minnesota and told the defendant they wanted to buy a quantity of heroin. In each instance the defendant told the two men to wait outside once in Adams' car and once in a nearby parking lot where the transactions were completed a few minutes later when the heroin was delivered by a courier for the defendant. Testifying in his own behalf, Dawkins admitted meeting with Shanley and Adams on August 16, but denied having engaged in any drug transaction with them. Dawkins further denied having even seen either Shanley or Adams on August 23.

As a result of this conflicting testimony, disposition of the case obviously turned in large measure on the credibility of the various witnesses. During his closing argument, the prosecutor urged the jury to believe the testimony of Shanley and Adams, and to discredit that of the defendant. Four of these remarks are assailed by defendant as improper attempts by the prosecutor to personally vouch for the credibility of government witnesses.

Though we presently discuss each of the challenged remarks individually, we do so only with full appreciation of our responsibility to view all such statements in the context of the entire trial. United States v. Chrisco, 493 F.2d 232, 238 (8th Cir.), cert. denied, 419 U.S. 847, 95 S. Ct. 84, 42 L. Ed. 2d 77 (1974). In an instance such as this, where the issues were simple and the trial short, we are especially mindful that the role of the prosecutor is a delicate one. United States v. White, 486 F.2d 204, 206 (2d Cir. 1973), cert. denied, 415 U.S. 980, 94 S. Ct. 1569, 39 L. Ed. 2d 876 (1974). "(W)hile he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." Berger v. United States,295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314 (1935); see also United States v. Splain, 545 F.2d 1131, 1134 (8th Cir. 1976). If, on balance, it could be said that the prosecutor had placed his own credibility before the jury, or that he implied that he had knowledge of evidence of guilt not available to the jury, we would not hesitate to condemn his conduct as improper. See United States v. Splain, supra, 545 F.2d at 1134-35, 1135 n.2. We are satisfied, however, that when placed in context, the remarks of the prosecutor do not in this case warrant reversal.

Respecting three of the four challenged statements, we have little difficulty concluding that the prosecutor did not overreach the bounds of propriety. These comments¹  merely call upon the jury to remember testimony actually given and observed. From this the prosecutor only asked the jurors to consider "for themselves" whether the testimony was incredible. In referring to the motto that "the government wins when justice is done," we find no error. Such recitation adds nothing of substance to the credibility of a witness who in all events has sworn to tell the truth. The prosecutor, by making this remark, did not assert that the jury could infer the defendant's guilt from the fact of his indictment. Compare United States v. Splain, supra, 545 F.2d at 1134. Rather, when read in its entirety, the statement does no more than remind the jurors of their duty to be just.

The fourth statement presents a more troublesome question. After discussing the testimony offered by the government witnesses, the prosecutor stated:

I don't hesitate for a moment standing by the testimony the forthright testimony of Agent Shanley and the testimony that rang of truth from an individual, even such as Bob Adams * * *.

Arguably this statement is open to the charge that it expresses the prosecutor's personal opinion concerning the believability of Shanley and Adams. In our opinion, however, the prosecutor's characterization of the witness' testimony as believable in its context refers to the witness' manner of testimony in court before the jury. Such description of testimony does not constitute error for it neither puts the prosecutor's own credibility before the jury nor does it carry any inference of outside knowledge. United States v. Kuta, 518 F.2d 947, 955 (7th Cir. 1975).

This case was submitted to the jury at 4:45 p. m. on December 28. After deliberating until 5 p. m. the jury retired for the night and returned at 9:30 the next morning. Being unable to reach a unanimous verdict, the jury was recalled at 2:53 p. m., after approximately five hours of deliberation, and given a supplemental Allen-type instruction.²  Following an additional forty-five minutes of deliberation the jury returned its verdict of guilty. Defendant now asserts that the giving of the instruction was coercive and prejudicial. We disagree.

We note initially that the defendant did not object to the giving of the instruction at trial and does not now contend that the Allen charge is prejudicial per se.³  Indeed, the form of the instruction given in this case was the one recommended by counsel for the defendant. The thrust of defendant's argument is that the trial court improperly ascertained how the jury was divided in its deliberations and that under those circumstances the instruction had a coercive effect on the minority jurors. The record wholly belies this allegation. In his initial questioning of the jury foreman, the trial court asked:

Now, Mr. Foreman, don't tell me how you stand. You know, like five to seven, or however you are, but are you having a little trouble reaching a decision, a unanimous decision?

During the course of the ensuing instructions, the court stated:

Now, here you are faced with a problem of making the decision, and I urge you to go ahead and try again, and those of you who are in the majority, if there is a majority, to try and convince those who are in the minority. (Emphasis supplied.)

On this record it is impossible for us to determine, as it would have been for the trial court, whether the ultimate verdict of guilty represented the views of those in the majority or those in the minority at the time the instructions were given, or even whether there was a majority at that point. Under these circumstances, we find no basis for concluding that the instructions had a coercive effect on the jury.⁴  Accordingly, we reject defendant's claim that the giving of the Allen charge or the other remarks of the trial court warrant a reversal.

Judgment affirmed.