314 F2d 278 Clemons v. United States
314 F.2d 278
114 U.S.App.D.C. 273
Charles CLEMONS, Appellant,
UNITED STATES of America, Appellee.
United States Court of Appeals District of Columbia Circuit
Argued Jan. 2, 1963.
Decided Jan. 31, 1963, Petition for Rehearing En Ganc Denied
En Banc Feb. 15,1963.
Mr. Charles J. McKerns, Washington, D.C., with whom Mr. John B. Jacob, Washington, D.C. (appointed by this court), was on the brief, for appellant.
Mr. Robert A. Levetown, Asst. U.S. Atty., with whom Messrs, David C. Acheson, U.S. Atty., and Frank Q. Nebeker and Victor W. Caputy, Asst. U.S. Attys., were on the brief, for appellee.
Before BAZELON, Chief Judge, and WILBUR K. KILLER and BURGER, Circuit judges.
Convicted of raping an 80-year-old woman in her apartment, Clemons appeals. He asserts the evidence against him was insufficient, as a matter of law, to go to the jury, and that the prosecuting attorney in his closing argument drew the jury's attention to the fact that he did not take the stand.
The victim was unable to identify her assailant except to the extent of saying he was a light-skinned Negro wearing a red flowered sport shirt and a narrowbrimmed straw hat. But strong circumstantial evidence that Clemons was the attacker1 amply justified submitting the case to the jury, and fully warranted that bydy in returning a verdict of guilty as charged.
In our view, the challenged remarks of the prosecutor did not refer to appellant's failure to testify.
For example, a baseball ticket stub, admittedly used by appellant earlier in the evening, was found on the floor in the room in which the rape occurred