Friday, November 16, 2001
C.A. Says Prosecutor Should Not Have Testified at Trial
By KENNETH OFGANG, Staff Writer/Appellate Courts
A Kern County prosecutor improperly blurred the distinction between witness and advocate by testifying in order to bolster a case that hinged on the inconsistent testimony of the only witness to give inculpatory information to the police, the Fifth District Court of Appeal has ruled.
The court Wednesday overturned Wanda Marie Donaldson’s child endangerment conviction, but rejected the defendant’s insufficiency of evidence claim and declined to bar a retrial.
Presiding Justice James Ardaiz, writing for the panel, chastised the prosecutor for testifying, the defense lawyer for not objecting, and—in an unpublished portion of the opinion—the defendant’s appellate counsel for omitting citations to the record in her statement of facts.
Donaldson was charged with attempted murder and child endangerment after the witness, Bonnie Christopher, told several people—including a 911 operator, a deputy sheriff, and members of a television news crew—that Donaldson tried to smother her two-month-old with a pillow.
Christopher testified at both the preliminary hearing and the trial. At one point she reiterated her out of court statements, but she also said several times that she was only repeating what others had told her and that she never actually saw the defendant hold the pillow against the baby’s face.
After Christopher’s trial testimony, the prosecutor took the stand, while another prosecutor stood by. The defense counsel—the trial lawyers weren’t named in the opinion—objected only to the “narrative form” of the testimony, which Kern Superior Court Judge Roger Randall permitted.
The prosecutor testified that Christopher was a reluctant witness, that she was not told she had to testify to facts consistent with the recitations in the police reports, and that she was told that she should tell the truth and that there would be legal consequences if she didn’t tell the truth.
On cross-examination, the prosecutor testified that she personally believed what the police reports said—that Christopher had told everyone concerned that she saw the defendant try to smother the baby—and that she didn’t think Christopher was lying when she made those statements.
The cross-examination was quite unhelpful to the defense, Ardaiz noted.
“By the time defendant’s trial attorney had finished his cross-examination of the prosecutor, he had elicited evidence of her personal belief in the credibility of the only percipient witness who ever gave inculpatory information to law enforcement,” the presiding justice explained.
The prosecutor then told the jury in final argument, without defense objection:
“I said it on the stand, but now I will say it to you as arguing this case, I believe, based on the same evidence that is before you in this case, that this woman placed that pillow over her baby’s head on April 30th.”
Defense counsel, Ardaiz concluded, should have objected to the prosecutor testifying at all, and should have allowed her to give her personal opinion on Christopher’s credibility or on the defendant’s guilt.
He was also ineffective, the jurist said, in failing to move that she be disqualified as prosecutor once she testified, and in not asking for jury instructions that would have ameliorated the prejudice that her dual role caused the defendant. His performance was “deficient and prejudicial,” the jurist concluded.
A prosecutor may testify in “exceptional circumstances,” Ardaiz acknowledged, including situations where the contents of a conversation between the prosecutor and a witness outside the presence of a third party becomes at issue. But where that arises, as with the prosecutor’s conversation with Christopher, the prosecutor-turned-witness generally must withdraw as advocate in order to preserve the defendant’s right to due process, the presiding justice explained.
The case is People v. Donaldson, 01 S.O.S. 5510.
Copyright 2001, Metropolitan News Company