People v. Podwys

EDMONDS, J.,

pro tem.

The defendant was found guilty by the verdict of a jury of the crime of robbery on each of four separate counts, and of the crime of kidnaping for the purpose of robbery, on an additional count. Each count charged him with the prior conviction of a felony, which he admitted. A motion for new trial having been denied, defendant was sentenced, and has appealed from each of the judgments of conviction and from the order denying a new trial.

While appellant admits that the record contains sufficient evidence to sustain the verdicts, he contends that the district attorney was guilty of serious misconduct in the examination of witnesses and in his argument to the jury; that this was persistent, amounting to a course of conduct throughout the entire trial; and that a fair and impartial trial was not had for that reason.

[73]

The transcript of the proceedings shows continuous criticism of the public defender, representing the defendant, by the district attorney. When the public defender asked a perfectly proper question of a witness, the district attorney said, “Counsel, what is the purpose of that—just your dilatory tactics.” Again, he said, “I don't understand your dilatory tactics,” and at another point, “I don't understand your tactics.” Later, the district attorney called defendant’s counsel a “clown” and charged him with a “breach of professional ethics”, for which there does not appear to have been the slightest foundation. At another time the district attorney said: “I am surprised the public defender would use the tactics he does—that is I am not surprised; I know him,” and later stated: “This district attorney doesn’t use the tactics you do.”

These remarks, and comments made by the district attorney during the trial concerning the defendant’s witnesses, taken separately,- one by one, may not amount to more than what is, unfortunately a too common practice in the trial of cases. Making all due allowances for the fact that the district attorney was engaged in the prosecution of a defendant whom he believed was guilty under the evidence which he was presenting, it must be remembered that a conviction can only be justified by legal means. A prosecutor has no right to inject into the proceedings, by innuendo, such prejudice against the defendant or his counsel as prevents a fair and impartial trial.