no substantial prejudice where prosecutor made isolated improper remarks during opening statement because the trial court acted promptly to rein in the prosecutor and the government's case was otherwise strong
How later courts described this case
- no substantial prejudice where prosecutor made isolated improper remarks during opening statement because the trial court acted promptly to rein in the prosecutor and the government's case was otherwise strong
Written by the judges who cited it.
The opinion
MACK, Senior Judge,
concurring:
I agree with my colleagues that the prosecutor’s opening remarks (relative to a “network” of drug distribution) were improper. I agree with the trial judge, who sustained an objection to those remarks as being “inflammatory.”
Moreover, in this court, we all agree with Mr. Munn that “the government had no evidence that he was part of a conspiracy or ‘network’-” Majority Op. at 1242. As to whether the government made any “attempt to prove that he was,” the record leaves me somewhat ambivalent. Certainly the prosecutor, having been sternly advised by the trial judge to state a factual basis for the inflammatory opening argument, produced no direct evidence in that regard. 1 I note, however, that in closing arguments, the prosecutor did rely in part upon the testimony of an “expert witness” who testified as to the usual pattern of drug distribution. Nevertheless, because the expert expressly disclaimed any knowledge of the facts of this case, and in view of the protective instructions given by the trial court, I join my colleagues in holding that Mr. Munn was not substantially prejudiced thereby. Cf. Russell v. United States, 701 A.2d 1093 (D.C. 1997).
. Mr. Munn was arrested after he was observed returning to the scene of a “stake-out” to retrieve his parked car after having previously been searched together with a group of "loitering” men and ordered to "move on” without the car (a fact which a vice squad officer did not mention on direct examination hut did not dispute on cross).