Howe

Defendants William Glen Howe {Howe) and Timothy Allen Clark {Clark) were found guilty by a jury of the crime of kidnapping for the purpose of robbery, in violation of Penal Code section 209. Each of them has appealed from a judgment which was entered upon the jury’s verdicts.

On each of their respective appeals, Howe and Clark contend that: “The prosecutor committed prejudicial misconduct during the course of his closing argument which violated appellant’s federal constitutional rights and warrants reversal of his convictions.”

It is argued by each of them that the charged misconduct occurred during the prosecutor’s closing jury argument by (1) his comment upon defendants’ failure to testify at trial, and (2) by telling the jury that defendants were “robbers” and “criminals” and “therefore must have had the intent to commit the kidnap for robbery and robbery charged.”

It is first noted that no objection, or request for an appropriate jury admonition, was made at the trial as to either of the assignments of misconduct. In our opinion had such been made, and acted upon, any conceivable prejudice to defendants would have vanished. Under such circumstances, we are told by…