Miller v. State

ANSTEAD, Justice,

concurring specially:

One of the errors complained of here was the failure of the trial court to strike the testimony of an identification witness, the victim of the robbery involved, who had conversed with the prosecuting attorney about the identity of the appellant, then present in the courtroom, prior to testifying. The witness had been unable to identify the appellant prior to trial. Before testifying, according to the prosecutor, the witness pointed to the appellant seated in the courtroom and said, “That’s the boy that did it, isn’t it?” The prosecutor confirmed that appellant was indeed “the boy that did it.” According to the appellant, the witness asked the prosecutor, “Is that the guy who did it, right there?” and the prosecutor responded affirmatively. Regardless of which version is true, I think it was error for the prosecutor to have confirmed the identity of the appellant to the witness. However, I believe under the circumstances here that such error was harmless. The conduct of the prosecutor and the failure of the witness, to identify the appellant prior to trial were brought out before the jury. In addition, two alleged accomplices of appellant testified, completely corroborating the victim’s testimony. And although both of the accomplices received favorable treatment from the state in exchange for their testimony, this information was fully disclosed to the jury. Accordingly, I concur in the affirmance of appellant’s conviction.