People v. Mosely

BRAY, J. Defendant was convicted by a jury of violation of section 11500, Health and Safety Code (selling heroin). He appeals from the judgment.*

Questions Presented

1. Sufficiency of the evidence of identification.

2. Should the court of its own motion have continued the ease to enable defendant to call a witness without any indication that defendant desired to do so ?

3. Was defendant restricted in cross-examination of a witness ?

4. Was defendant inadequately represented by counsel of his own choosing?

Facts

James Shepherd, a Hayward police officer, was working for the State Bureau of Narcotics as a volunteer undercover agent. Shortly after midnight he was standing in front of the De Luxe Bar in San Francisco conversing with two persons. One was Frank Allen, whom he knew. The other was John Keeys, who was also employed as an undercover agent by the bureau. Neither Shepherd nor Keeys knew that the other was an agent. Keeys was carrying a bongo drum. Shepherd saw defendant walking along the sidewalk and [831]nodded to Mm. Defendant beckoned to Shepherd and Allen who then joined him. As the three walked along defendant asked the two if they had been talking to the man with the bongo. They said they were passing the time of day with him. Defendant then stated that they should be careful of Keeys because defendant had heard that he was a police agent. Shepherd then asked defendant if he knew where Shepherd could get narcotics. Defendant said he did not have any but could get some. Shepherd indicated that he would like a “spoon,” which is a measure of heroin then selling for about $35. Shepherd gave defendant $35. Defendant told Shepherd that he could not go with defendant to get it, but to wait for him in the nearby Ellis Hotel bar. Shepherd and Allen waited in the bar. In about 5 to 10 minutes defendant returned. He and Shepherd walked over toward the juke box in the corner. There defendant gave Shepherd “a small bindle, a white paper,” which contained two grains of heroin. After a beer and some conversation the parties separated. The arrest did not occur until some three months later.

1. Identification.

The contention that the evidence of identification is insufficient is based, not upon any lack of identification of defendant by Shepherd, but upon the claim that Shepherd did not know and could not have known defendant’s name, particularly at the time when, some hours after the purchase, Shepherd wrote defendant’s name on the envelope in which he put the bindle. This claim is totally unfounded and seems to be made primarily upon the ground that Shepherd testified on cross-examination that he had never prior to the incident in question had a conversation with defendant nor was defendant ever introduced to him as Ike Mosely. Shepherd testified that he had seen defendant in the district where the purchase was made several times before it took place. Defendant had been pointed out to him by several persons from whom Shepherd had made “buys.” Defendant was pointed out to Shepherd by Allen who pointed out to him people whom Allen said “probably had some stuff.” Shepherd was never asked directly if he had known defendant’s name at the time of the purchase. However, both plaintiff’s and defendant’s counsels in questioning Shepherd referred to defendant as “Ike Mosely” rather than “defendant.” For example, defense counsel: “Q. You say you can recall Allen pointing out Ike Mosely