State v. Aponte

PALMER, J.,

concurring. I agree with the result and much of the reasoning of the majority opinion. I write separately, however, because I disagree with the majority’s characterization of the impropriety in this case.

Although the majority acknowledges the trial court’s finding that the prosecutor’s actions were not inspired by any improper motive, it nevertheless emphasizes the “obvious” nature of the prosecutor’s misconduct. By *761characterizing the prosecutor’s actions as obvious misconduct, I believe the majority unjustifiably maligns both the trial court and the prosecutor.

Not eveiy benefit or courtesy bestowed upon a witness by the state constitutes misconduct. Indeed, prosecutors routinely bargain with persons charged with crimes to obtain their testimony. The state is entitled to facilitate the testimony of a witness so long as the prosecutor does not seek to influence the witness’ testimony, and discloses any benefit provided to the witness so that the defendant may explore the witness’ interest and possible bias on cross-examination.

In this case, the trial court had asked the prosecutor to make the child more comfortable. The prosecutor sought to do so by giving her a doll that she brought with her to court. The trial court expressly found that the prosecutor, who never sought to conceal his actions, was attempting to put the victim at ease, rather than seeking to influence her testimony, when he gave her the doll. Moreover, the defendant, on cross-examination, elicited testimony from the victim that the prosecutor had given her the doll after inquiring whether she “lik[ed] Barney.” Thus, the jurors, who witnessed the victim holding the doll throughout her trial testimony, were well aware of the fact that she had received the doll from the prosecutor. Finally, the trial court, who had the opportunity to observe the victim closely while presiding over her direct examination, also expressed his emphatic belief that the prosecutor, by “bringing [the victim] into the court and giving her a toy,” could not have influenced her testimony.

Nevertheless, with the benefit of 20-20 hindsight not available to the trial court or the prosecutor, I am constrained to conclude, for the following reasons, that the prosecutor’s conduct, although not improperly motivated, tainted the proceedings. First, the victim’s *762extremely young age and obvious vulnerability gave rise to a real risk that, as a result of her receipt of the doll, she would view the prosecutor in a favorable light and, consequently, seek to please him with her answers. Second, it may be presumed that the victim was especially susceptible to such influence, albeit unintended, in view of the frightful treatment that she had received at home. Finally, given the victim’s tender age and emotional fragility, her ability to respond to questions was extremely limited, and, as a result, meaningful cross-examination into her possible bias in favor of the prosecutor was virtually impossible.

For the reasons set forth by the majority, however, I also agree that the conduct was harmful only with respect to the second count of the defendant’s assault convictions. I, therefore, conclude that the defendant’s other three convictions must be sustained.

Accordingly, I concur in the result.