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Smith v. State12/22/2000
is own knowledge, could be made to the effect that the defendant is actually guilty of the crime charged in the indictment.' Rowland v. State, 31 Ala. App. 605, 607, 20 So. 2d 881[, 882] (1945).
"....
"So sacred and fundamental is the principle that the jury not be improperly influenced that our Supreme Court has held that it constituted reversible error to allow the Sheriff, who had acted as the bailiff to the jury, to testify as a witness for the State even though there was no testimony of any conversation between the Sheriff and the members of the jury. There the mere `possibility of influence exerted on the jury's verdict by the sheriff-bailiff was sufficient to deprive the defendant of his right to trial by an impartial jury.' Chancellor v. State, 291 Ala. 413, 282 So. 2d 242 (1973).
"We fully recognize that the matter of allowing a prosecutor to become a witness is largely within the discretion of the trial judge. However, once the district attorney testifies he should withdraw from the prosecution of that particular trial unless there is some sound and compelling reason which would require his continued service. See State v. Donahue, 315 So. 2d 329[, 329] (La. 1975), where the district attorney was ordered recused because he `was the sole witness of the content of an oral confession which it is acknowledged he will testify to at the trial.'
"Our decision is reached only because of the high respect we have for the office of the district attorney and because of our recognition of the power and influence he exerts in the prosecution of a criminal case. Any decision other than the present one seriously jeopardizes and imperils the fact finding process of a trial by jury." 424 So. 2d at 1348-49.
The circumstances before us do not present circumstances as compelling as those in Waldrop v. State and Tarver v. State, where the prosecutor-witness, who was the sole or primary prosecutor, prosecuted the case after it became evident that he would testify. Here, Maxwell's participation in the prosecution of the appellant was very limited. Although Maxwell was recognized as representing the prosecution as Valeska's assistant, Valeska made all arguments to the jury and conducted all examinations (direct and cross) of the witnesses. Maxwell's participation consisted primarily of aiding Valeska in presenting legal argument to the trial court in bench conferences outside the jury's hearing and in hearings outside the jury's presence. After his testimony, Maxwell made very limited comments during hearings outside the jury's presence; during bench conferences outside the jury's hearing, he made three comments during the guilt phase (R. 1198-99, 1884) and interjected himself twice during the sentencing phase (R. 2026, 2050); one comment (four words) made before the jury was attributed to him, but there is some ambiguity as to whether he or defense counsel made that remark. (R. 1784.) Compare Ex parte Gilchrist, supra (the district attorney's acting as the prosecutor after his testimony -- examining witnesses, arguing in opposition to the defense's motion to exclude, and delivering closing argument, thereby arguing to the jury his own credibility -- was improper).
There is authority for the proposition that, "following withdrawal from a case by a prosecutor in order that he may testify for the prosecution, the prosecutor may, consistent with the rule that he withdraw, sit at the counsel table and converse with counsel who is actually conducting the trial." Erwin S. Barbre, Annotation, Prosecuting Attorney as a Witness in Criminal Case, 54 A.L.R.3d 100, 121 (1973) (discussing cases supporting such proposition). This kind of limited participation -- sitting a
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