Brown v. State

MALONEY, Judge,

dissenting.

The majority concludes the Court of Appeals erred because it relied solely on the violation of a disciplinary rule to reverse appellant’s conviction. While the basis of the Court of Appeals’ holding is not altogether clear, even the State does not interpret the Court of Appeals’ opinion as relying solely on a disciplinary rule violation. The State asserts in its brief that “[t]he issue to be decided by this Court is whether or not the trial court’s failure to remove the prosecutor from the case after she testified as a witness constituted a violation of the Appellant’s due process rights.” 1 I would interpret the Court of Appeals’ opinion in the same manner as the State, as holding that appellant’s due process rights were violated by the prosecutor’s continuing representation after testifying before the jury.

Courts that have addressed the issue have shown general distaste for the practice of prosecutor serving as witness in the same proceeding. E.g., United States v. Trapnell, 638 F.2d 1016, 1025 (7th Cir.1980) (observing that appearance of prosecutor as witness is improper except in extraordinary circumstances); United States v. Birdman, 602 F.2d 547, 552-553 (3rd Cir.1979) (and cases cited therein) (noting courts and especially federal courts universally frown on practice of prosecutor testifying), cert. denied, 444 U.S. 1032 , 100 S.Ct. 703 , 62 L.Ed.2d 668 (1980); United States v. Torres, 503 F.2d 1120, 1126 (2nd Cir.1974) (prosecutor should not be used as witness unless all other sources of testimony exhausted); Robinson v. United States, 32 F.2d 505, 510 (8th Cir.1928) (opinion on reh’g) (practice of prosecutor acting as witness should be disapproved except in most extraordinary circumstances); see generally Erwin S. Barbre, Annotation, Prosecuting Attorney as a Witness in Criminal Case, 54 A.L.R.3rd 10 (1974 & Supp. 1995). Only rarely should such testimony be permitted, and if the prosecutor testifies, he should thereafter withdraw from further participation. E.g., United States v. Johnston, 690 F.2d 638, 644 (7th Cir.1982). Several reasons have been advanced for this rule:

First, there is the risk that the prosecutor will not be a fully objective witness[.] ... Second, it is feared that the prestige of a Government attorney’s office will artificially enhance his credibility_ A third consideration is that the prosecutor’s testifying might “create ... confusion on the part of the jury as to whether he [is] speaking in his capacity of prosecutor or witness.” Such confusion ... may result in the fact-finder according testimonial *233 credit to the prosecutor’s closing arguments. ... [Finally,] the most frequently cited justification for the rule reflects a broader concern for public confidence in the process of justice.

Birdman, 602 F.2d at 553-54 .

Whether or not the prosecutor’s testifying in this case amounted to a due process violation is not questioned. The only issue presented is whether the prosecutor’s failure to withdraw from the ease after testifying deprived appellant of a fair trial. 2

The State’s cocaine case against appellant turned largely upon Albert’s credibility. Appellant claimed he did not possess the cocaine and never handed it to Albert. Albert’s testimony that appellant handed the cocaine to him was the only evidence connecting appellant to the cocaine. Albert testified that he had no deal with the State; appellant disputed this, calling Albert’s credibility into question. The prosecutor’s testimony was given in rebuttal of appellant’s suggestion that Albert was lying about a deal with the State. Immediately following her testimony, both sides closed. In closing argument the prosecutor stated

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 case against Gordan Albert being dismissed, tell me after this case is over.

The prosecutor’s actions deprived appellant of a fair trial for precisely the reasons underlying the rule that a prosecutor should not continue to prosecute after testifying. See Birdman, supra. In testifying that no deal was made and then arguing that she was telling the truth, the prosecutor combined her credibility as a witness and a prosecutor before the jury, giving testimonial credit to her closing argument. 3 She further improperly invoked the prestige of her position as a prosecutor to bolster her credibility as a witness by suggesting that a public servant does not lie. The Court of Appeals did not err in concluding appellant’s due process rights were violated by the prosecutor’s continued prosecution after testifying. 4 While the Court of Appeals’ harm analysis under Tex.R.App.P. 81(b)(2) was less than adequate, the State does not raise a complaint as *234 to that aspect of the Court’s opinion. I dissent.

CLINTON, BAIRD and OVERSTREET, JJ., join.

. The State spends the better part of the argument portion of its brief discussing why it be-Heves appellant’s due process rights were not violated. Given that the basis of the Court of Appeals' holding is not entirely clear, the majority fails in its role as reviewing court to address the arguments presented in support of the petition on which it granted review. A different situation would be presented if the Court of Appeals had expressly held that the violation of a disciplinary rule alone constituted grounds for reversal of the conviction. As Judge Keller points out in her concurring opinion, there is no mention of a disciplinary rule violation in appellant's brief to the Court of Appeals, in the Court of Appeals' opinion, or in Beasley, the only authority cited by the Court of Appeals.

. The State's ground for review asks that we decide whether:

The Court of Appeals erred in holding that the trial court erred in allowing the prosecutor to continue prosecuting the case after testifying as a witness before the jury since the trial ■ court is without legal authority to remove a prosecutor from the case if the appellant’s due process rights are not violated.

. Concurring in the Court's judgment, Judge Keller concludes there was no due process violation in the fact that the prosecutor "continued to prosecute the case after testifying.” Concurring opinion at 4. While she suggests that the prosecutor's jury argument might amount to a due process violation, since "the Court of Appeals did not address the issue of improper argument[,]” she apparently declines to consider it in her holding. Id. at 4 n. 3. However, as reflected in its brief before this Court, the State views the prosecutor's argument as the basis for the Court of Appeals' holding:

Although the Court of Appeals never specifically states that they believed that it was the prosecutor’s argument which constituted a deprivation of Appellant's due process rights or never even analyzes the error in terms of a due process violation the Court’s reference to the following statement made by the prosecutor during jury argument, i.e., "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” seems to be the basis for the Court's finding that Appellant was deprived of a fair trial.

In addition, given that the only thing remaining in the prosecution of the case after the prosecutor testified was closing argument. Judge Keller's conclusion that there was no due process violation in the prosecutor’s continued prosecution has no basis without consideration of closing argument.

.The majority points to what appears to be a manual setting forth guidelines for state prosecutors, suggesting that the prosecutor's actions were acceptable because she complied with the manual. The quoted portion of the manual provides that a prosecutor can testify as a witness whenever "the need ... arises." A broader “guideline” cannot be imagined. The majority’s apparent sanctioning of this rule is alarming. The rule makes no reference to due process concerns nor does it reflect a policy, consistent with virtually every court that has addressed the issue, that would reserve prosecutorial testimony for exceptional cases when no acceptable alternatives are available. Whether or not a prosecutor’s actions comport with guidelines contained in a prosecutors’ manual is of no moment.