People v. Cotton

KAUFMAN, P. J. Defendant appeals from a judgment entered on a jury verdict finding him guilty on two counts of selling heroin. The sole issue on the merits is whether the district attorney was guilty of prejudicial misconduct.

In their brief, the People argued that the appeal was filed too late. On oral argument, the attorney general properly and commendably conceded that the notice of appeal was filed in time. (People v. Slobodian, 30 Cal.2d 362 [181 P.2d 868].) It is thus unnecessary to pass upon appellant’s motion to augment the record, which deals only with the timeliness of his appeal.

The transactions leading up to the charges here involved occurred in San Francisco on April 1, 1957, and April 6, 1957. John A. Keeys, an undercover agent for the State Bureau of Narcotics testified that he had bought a “paper” from the defendant on each of those dates. The defendant testified that he had met Keeys and talked to him, but denied both sales. The only other witness at the trial was the narcotic chemist who testified to the contents of the “papers” purchased by Keeys. Defendant argues that in a case which turns solel on his credibility and the credibility of Keeys, certain remarks made by the district attorney constitute reversible error.

In his closing argument, the district attorney said: “. . . when Mr. Keeys is used by the State Bureau of Narcotics and he is produced here as a witness and knowing that he is going to give testimony that is not corroborated in the [3]fashion that we have talked about, I ask you to draw the very clear inference that that man is a man who is worthy of belief. At least some of us believe he is worthy of belief or we wouldn’t use him in this work and wouldn’t put him on the witness stand. ’ ’

It is misconduct for a prosecuting attorney to express his personal belief as to the reliability of a witness. (People v. Pantages, 212 Cal. 237 [297 P. 890].) However, the issue here is whether this comment was prejudicial. Appellant objected and the trial court promptly admonished the jury that “statements of counsel are not evidence and, of course, the beliefs of counsel are not evidence.”

In the preceding argument of defense counsel, he had said, referring to Keeys, ‘ ‘ On the basis of his statement, which, of course, Mr. Reichert believes and the police believe, or they wouldn’t be here, . . . charges have been brought.”