People v. Mickalian

FOX, J.

Defendant was convicted .by a jury of having sold ,to Deputy Sheriff Grimes 15 marijuana cigarettes in violation .of section 11500 of the Health and Safety Code. He appeals from the ensuing judgment and the order denying his motion for a new trial.

Defendant bases his appeal upon the alleged misconduct of the prosecuting attorney. The particular incident occurred during: the cross-examination of defendant on surrebuttal. Defendant had testified that Grimes had frequently importuned him over a period of time to get some marijuana for him. Defendant further testified ■ that was the only subject the officer ever discussed with him. The deputy district attorney then propounded this question: “Now, isn’t it a fact that most of your conversation with this officer had to do with the murder of Davidian?” Defense counsel objected to the question on the ground that it was irrelevant and immaterial and improper cross-examination, cited it as misconduct on the part of the prosecutor, and asked the court to, instruct the jury to disregard the question. The court sustained the objection and admonished the jury to disregard the question and “to treat it as though you had not heard it.”

It appears from defendant’s brief that shortly before this conversation between the officer and defendant a person by the name of Davidian, who was expected to be a witness in a criminal case in the federal court, was killed in Fresno and that considerable publicity followed in the Los Angeles press. It is said that the jurors could easily deduce that Davidian and defendant were both of the same race, namely, Armenians, and that the question was asked to appeal to the passion and prejudice of the jury. The prosecutor justified the question on the theory of impeachment: viz., that the officer and defendant had discussed matters other than the procurement of marijuana, which defendant had testified Was the only thing the officer ever discussed with him. There is nothing to suggest that the question was not asked in good faith. While the objection was properly sustained, it is difficult to see how the

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question could have had the prejudicial effect defendant claims. There is nothing in the question in any way implicating defendant in the commission of that crime or even remotely connecting him with it. No mention was made by the prosecutor that either the defendant or Davidian were Armenians. There was no suggestion that the two had ever had any business or social contact or even knew one another. It was simply an inquiry as to a subject matter of their conversation.