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Smith v. State12/22/2000
t counsel table and conversing with counsel -- falls within the limited activity described in the following:
"As a matter of course, an attorney participates in a trial when he in some manner actively takes part in and conducts the same as an attorney. t is improper in a criminal prosecution to allow one who testifies as a witness to the principal facts in the case to also as attorney ... conduct himself in any manner inconsistent with his position as a witness or his interest as an officer of the state. In other words, although a competent witness, his function as a prosecuting attorney and as a witness must be disassociated. ...
"... Therefore, [the prosecutor-witness] should ... so conduct himself as to foster and demonstrate the fact that he is not actively participating as a prosecutor, but only as a witness, truthfully and impartially giving competent testimony." Frank v. State, 150 Neb. 745, 35 N.W.2d 816 (1949).
For examples of permitted activity, see Newman v. Sigler, 421 F.2d 1377 (8th Cir. 1970) (where the prosecutor, who was an essential witness for the prosecution, did not question any witness or give any jury argument or make any oral statement that would create any confusion on the part of the jury as to whether he was speaking in the capacity of prosecutor or of witness, his activity in sitting at counsel table with a special prosecutor during the trial and consulting with him with respect to the selection of the jury, examination of witnesses, and closing argument did not deprive the appellant of a fair trial); People v. Hauschel, 37 Colo.App. 114, 550 P.2d 876 (1975) (the district attorney's limited participation in the prosecution before he testified when it was known he would be a witness for the prosecution did not deny the defendant a fair trial where nearly all trial procedures were carried out by the deputy and pretrial participation of the district attorney was limited to taking part in voir dire of two prospective jurors and direct examination of one and redirect of another of 37 witnesses and where his testimony was limited to evidence he discovered during a search of defendant's home; his remaining at counsel table after he testified, but taking no further part in the trial, was not reversible error, though the better practice was not to have done so); State v. Fackrell, 44 Wash.2d 874, 271 P.2d 679,680 (1954) (no reversal required where the prosecutor-witness, after testifying, merely continued to sit at the counsel table through the remainder of the trial, but left the trial of the case to other counsel and took no further part in the trial except at one point to state that a particular question merely called for a "yes" or "no" answer; that did not constitute "assistance in the trial of the case"). See also Frank v. State (the most that could be said from the record was that the prosecutor-witness sat at the counsel table with the special prosecutor and assisted him in the preparation and details of the trial, as any other witness or interested officer of the state would have a right to do; this mere action would not alone require a reversal if, in doing so, the county attorney conducted himself in a manner consistent with his position as a witness or his interest as an officer of the state).
Applying this rationale to this issue whether Maxwell should have withdrawn from the prosecution of the case after he testified, which we are reviewing under the plain-error standard, we find that Maxwell's activity after the necessity for his testimony became evident was so minimal that it complied with the spirit of the proposition that the prosecutor-witness may sit at counsel table and converse with the prosecutor actually conducting the trial. We
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