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United States v. Elem - 845 F.2d 170 (8th Cir. 1988)


Under the genuine "verbal act" doctrine the conduct and the verbal utterance must be by the same person, but under the spontaneous exclamation exception to the hearsay rule, that nervous excitement which renders an utterance admissible may exist equally for a mere bystander as well as for the injured or injuring person, and therefore the utterances of either, concerning what they observed, are equally admissible. 


The appellant, Jimmy Dean Elem, and a certain Charles Evans were fighting over the ownership of a backgammon set. During the course of the said fight, Evans alleged that Elem threatened with him a gun. Thereafter, Evans' sister called the police. After the police arrived at Evans' home, and while Evans was explaining to the police what had happened, Elem drove by in his car. Officer Reed followed Elem’s car and saw Elem throw a "silver colored object" and a brown paper bag from his car. Officer Reed pulled over to the curb and retrieved the "silver colored object," which turned out to be a 32-cal. semi-automatic pistol. During trial, an ATF agent testified that appellant had one 1979 robbery conviction and three 1976 robbery convictions. Fingerprint comparisons established that Elem was the defendant in each of the prior convictions. Consequently, the district court convicted Elem for possession of a firearm by a convicted felon in violation of Title 18 U.S.C. app. § 1202(a)(1) (West Supp. 1984). Elem challenged his conviction and argued that the district court erred in denying his motion for a mistrial because of improper statements made by the prosecutor during closing argument. Elem specifically alleged three violations: (a) commenting on the failure of appellant to testify, (b) giving of the prosecutor's personal opinions, and (c) attacking appellant's character.


Is Jimmy Dean Elem entitled to a new trial due to the alleged improper statements made by the prosecutor during closing argument?




The appellate court reviewed Elem's objections and complaints. With regard to Elem’s first argument that the prosecutor commented on Elem’s failure to testify, the appellate court held that it did not find that any of the remarks made is subject to the interpretation placed upon them by Elem. According to the court, at best the prosecutor's argument was an attempt to establish the principle of one's accountability for his or her actions. The court did not believe that the prosecutor's statements to the jury impermissibly commented on Elem’s failure to testify. The remarks made were not intended to be a comment upon Elem’s failure to testify nor were they of such a nature that a reasonable jury would naturally and necessarily view them as a reference to his failure to testify. Therefore, the court ruled against Elem on this issue. On Elem’s claim that statements made by the prosecutor were the prosecutor's personal opinions, offered and considered by the jury as attacks upon Elem's character, the court noted that Elem failed to make any objection to these remarks by the prosecutor. Absent an appropriate objection, motion for a mistrial or request for explanatory instruction, error cannot be predicated upon a claim of improper argument. Consequently, the appellate court reviewed Elem's claim under the plain error doctrine; according to the court, it did not find that any of the prosecutor's remarks affected Elem's substantial rights resulting in a miscarriage of justice.

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