Brown v. State

KELLER, Judge,

concurring.

The majority disposes of this ease by contending that appellant raised only a disciplinary rule violation and that a disciplinary rule violation, alone, does not constitute reversible error. While I agree that the mere violation of a disciplinary rule is not a ground for reversal, I disagree with the majority’s conclusion that appellant alleges only a disciplinary rule violation. But because I believe that the due process clause was not violated by the prosecutor’s continued participation in this case, I concur in the Court’s judgment.

I. Preservation of Error

The Court of Appeals held that the trial court erred in permitting the prosecutor to continue participating in the case but did not give any legal basis for its holding. This is not surprising in view of the dearth of authority on the issue in this State. And although it is possible that that court did rely upon a diseiplinaiy rule violation, it is not clear to me that they did so. Neither is it evident to me that the appellant’s complaint in the Court of Appeals was limited to that basis. An examination of appellant’s point of error to the Court of Appeals, set out in the majority opinion, reveals not a single reference to ethical or disciplinary rules. Instead, appellant relies solely upon footnote 5 of Beasley v. State, 728 S.W.2d 353 (Tex.Crim.App.1987). Likewise, the Court of Appeals opinion makes no reference to the disciplinary rules but relies solely upon Beasley. Brown v. State, 883 S.W.2d 389, 391 (Tex.App.—Fort Worth 1994). An examination of Beasley reveals that it also makes no reference to diseiplinaiy rules. Footnote 5, upon which appellant relied, provides:

Because we have held the confession to be inadmissible, we need not admonish the assistant district attorney that it would be highly improper for him to serve again as witness to the confession, then to resume conducting the State’s case, then to argue to the jury (in effect to testify) that his version of events was more credible than was appellant’s.

Beasley, 728 S.W.2d at 357 n. 5. Beasley's use of the phrase “highly improper,” while perhaps interpretable as alleging an ethical violation, could just as easily be interpreted as a due process argument. I think the latter is the more reasonable interpretation.

Moreover, appellant’s objection at trial was essentially a due process argument. In objecting to the prosecutor’s continued participation in the case, the defense attorney stated:

*231 It’s unfair, inherently unfair, to the defendant for her [the prosecutor] to put her credibility in issue and then to argue to the jury also.

While appellant did not use the words “due process,” he did rely upon Beasley . Although footnote 5 in Beasley is clearly dicta, there is no authority in Texas on this issue, and the footnote appears to be the statement made by this Court that most closely resembles appellant’s situation. Appellant relied on the only authority that exists to support his claim, and that authority itself has no explicit legal foundation. Under these circumstances, I believe that this Court should confront the due process implications of the prosecutor’s conduct. I turn to other states for guidance in this effort.

II. Due Process

The concepts of due process and fundamental fairness require a separation between the State’s advocates and its witnesses. 1 The prosecutor who tries a case should not testify as a witness in regard to a contested matter absent a showing that his testimony is necessary. 2 Such necessity generally involves a showing that the testimony is important to the State’s case or required to rebut the defendant’s case and that the need for the testimony could not reasonably have been anticipated. Timberlake v. State, 246 Ga. 488 , 271 S.E.2d 792, 802 (1980). Butler v. State, 229 Ind. 241 , 97 N.E.2d 492, 495 (Ind.1951). Brown v. Commonwealth, 512 S.W.2d 509, 510 (Ky.1974). A prosecutor who tries the case must take reasonable precautions to prevent himself from becoming entangled in the trial as a witness. People v. Guerrero, 47 Cal.App.3d 441 , 120 Cal.Rptr. 732 , 736 & 736 n. 8 (2 Dist.1975). If, during the middle of trial, the prosecutor’s testimony becomes necessary, and the prosecutor does not withdraw from participation, he should never argue his credibility to the jury. See Waldrop v. State, 424 So.2d 1345, 1348 (Ala.Crim.App.1982). People v. Janes, 138 Ill.App.3d 558 , 93 Ill.Dec. 216, 223-24 , 486 N.E.2d 317, 324-325 (2 Dist.1985). State v. McCuistion, 88 N.M. 94 , 537 P.2d 702, 703 (App.1975).

A prosecutor’s failure to follow the above principles seriously jeopardizes a defendant’s right to a fair trial. Waldrop, 424 So.2d at 1348-1349 . Janes, 93 Ill.Dec. at 223 , 486 N.E.2d at 324 . McCuistion, 537 P.2d at 703 . This conclusion is grounded upon the Recognition of the power and influence [the prosecutor] exerts” in a criminal prosecution. Waldrop, 424 So.2d at 1348 . Moreover, in addition to the danger that the prosecutor’s position may artificially enhance the credibility of his testimony, the prosecutor’s participation in closing arguments after the testimony may generate confusion among the jury about whether the prosecutor is speaking as an advocate or as a witness. See United States v. Birdman, 602 F.2d 547, 553-554 (3rd Cir.1979).

In the present case, after the trial court refused to admit the dismissal papers into evidence, the lead prosecutor, Heather Rattan, requested a recess to attempt to locate L.D. Shipman, the only other prosecutor who would know whether the State had a deal with the witness, Albert. After the attempt to locate Shipman failed, Rattan took the witness stand and testified that there was no deal with Albert. Rattan later delivered closing arguments for the State. During argument, she argued her own credibility, stating: “Now, the defense attorney says that I say that no deal was made and I’m your public servant and I’m lying to you. If you have a problem with the ease against Gordon Albert being dismissed, tell me after this case is over.” She later reiterated that there was no deal with Albert.

Although in many circumstances testimony about the dismissal of a prosecution could be of a formal and uncontested nature, in this *232 case it was not. Nevertheless, Rattan’s testimony appears to have been necessary because she was unable to locate Shipman. Moreover, the need for the testimony could not have been reasonably anticipated, and when the prosecutor attempted to introduce the evidence by means of a certified copy of the dismissal, the trial court would not allow her to do so. Under these circumstances, I find no due process violation either in the fact that Rattan testified or in the fact that she continued to prosecute the case after testifying. 3

I concur in the Court’s judgment.

. It appears that the trial court has no power to disqualify the prosecutor after he has testified as a witness. Regardless of the trial court’s power, though, the failure of a prosecutor to recuse himself may constitute reversible error if it amounts to a due process violation. State ex rel. Eidson v. Edwards, 793 S.W.2d 1, 7 (Tex.Crim.App.1990) (plurality opinion). This is so regardless of whether the prosecutor’s conduct violates a specific disciplinary rule.

. Such a showing is generally not required if the prosecutor’s testimony concerns only formal, uncontested matters. Flowers v. State, 776 S.W.2d 444, 449 (Mo.App.1989). Banks v. State, 810 P.2d 1286, 1292-1293 (Okla.Crim.App.1991).

. During argument Rattan argued her own credibility to the jury. As noted above, this argument is improper and itself implicates the due process clause. Once Rattan testified to a contested matter, it was perhaps inevitable that defense counsel would question her credibility. Nevertheless, by testifying she placed herself in that position, and she should not have been allowed to argue to the jury that she was the more credible witness. Her conduct was particularly insupportable because she relied on the very thing that makes such arguments improper — her status as a public servant. However, the Court of Appeals did not address the issue of improper argument.