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Smith v. State12/22/2000
find this conclusion bolstered by the fact that at no time did defense counsel object or argue that Maxwell's limited participation violated the rule that he must withdraw. Accordingly, we find Maxwell's functions as assistant prosecuting attorney and as a witness were, for the most part, disassociated. Moreover, we note that Maxwell took the stand to corroborate Jenkins's impeachment testimony that Lavoris Smith had made a prior statement inconsistent with her testimony. Compare State v. Miller, 391 So. 2d 1159, 1161-64 (La. 1980) (in finding harmless the assistant district attorney's resumption of his role as co-prosecutor after having testified, the court considered, among other factors, that he was an impeachment witness), with Waldrop v. State, 424 So. 2d at 1346, 1351 (reversal warranted where the prosecutor was the prosecution's principal witness, testifying as to the defendant's confession and written statement, the latter of which, the court noted, intensified and magnified the oral statement, leaving no doubt of the defendant's guilt); State v. Hayes, 473 S.W.2d 688 (Mo. 1971) (reversal warranted because of the prejudicial effect of the prosecuting attorney's active prosecution of the case while serving as the prosecution's principal witness to the only real factual issue). See also State v. Washington, 229 Kan. 47, 61, 622 P.2d 986, 996 (1981) (" eversible prejudice results from the attorney's testimony when the attorney actively participates in the criminal prosecution"), modified on other ground, State v. Hayes, 239 Kan. 443, 720 P.2d 1049 (1986). The purpose of Maxwell's testimony was to bolster Jenkins's testimony after the defense had attempted to impeach him. In fact, unlike the circumstances in Waldrop and Tarver, Maxwell's testimony that was elicited by Valeska was, in essence, cumulative of Jenkins's testimony. The only additional facts presented by Maxwell were elicited by defense counsel. Moreover, the impeaching nature of Maxwell's testimony was cumulative of Lavoris Smith's testimony in which she impeached herself: she testified that she had indicated to Valeska that she did not want to testify; that she had informed him the day before her testimony that she was going to Florida; that her daughter was, at that time, being prosecuted for capital murder; and that she was concerned for her daughter's safety because she was testifying against the appellant.
The circumstances here do not present plain error. "While the `better practice' is not to permit a material witness to function as an officer of the court, ... nevertheless, for such conduct to constitute reversible error there must be a showing that the witness-attorney's testimony is of sufficient consequence to have prevented a fair trial." People v. Hauschel, 37 Colo.App. at 117, 550 P.2d at 879. Because his testimony was cumulative of other testimony, we do not consider Maxwell to have been a material, principal witness for the prosecution. We find Maxwell's testimony not "of sufficient consequence to have prevented a fair trial."
While we find Maxwell's continued presence and very limited participation in sidebar conferences or hearings outside the jury's presence do not present plain error, we emphasize that a prosecutor's conduct in risking a reversal by adopting a dual role in a trial can only be characterized as reckless. See People v. Hauschel, 37 Colo. App. at 118, 550 P.2d at 880.
"No hard and fast rule can be laid down as to when it is permissible for a prosecuting attorney to become a witness against a defendant and remain as prosecutor. Circumstances might arise in the trial of a case making it necessary that the prosecuting attorney or his assistant become a witness, but these cases are few and
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