(specially concurring).
According to the trial transcript, the trial court, sua sponte, reminded the prosecutor that it did not prove all of the elements of the various charges, namely:
1. State did not show an actual touching of victim by Sonen;
2. State did not place into evidence the identity of Sonen during the trial, in open court;
3. State failed to establish venue.
The trial judge may take reasonable measures to ensure that evidence is intelligibly presented to a jury but this should be restricted to an exercise of sound discretion when it would appear to be reasonably necessary. State v. Lien, 305 N.W.2d 388 (S.D.1981).
Surely, the trial court’s authority is not unbounded and should be tempered by a requirement that the trial judge remain impartial throughout the proceedings. State v. Foard, 355 N.W.2d 822 (N.D.1984).
Each charge against Sonen alleged the venue to be in Moody County. Concerning one of these charges, during the initial direct examination, the witness stated that he and the defendant “... went to Trent ... down to the radio tower ... that’s just one mile west and probably 2 miles south from the Junction, and we stopped on that hill.” Such a statement does not geographically fix any crime in Moody County, as portrayed in the other special concurrence. Now, perhaps, the trial judge could take judicial notice that Trent is in Moody County; however, Trent is a very small agricultural community, within a very few miles of the Minnesota state border, and this alleged crime was out in the country. In other words, it was strictly a country setting. It is obvious that the State’s proof was defective as to venue. The trial court permitted, after the bench conference, the State to ask additional questions, whereupon the witness reiterated the same geographical location but further expressed: “He stopped on a hill by that tower and we pulled down our pants ...” In attempting to shore up the deficiency, the State’s Attorney referred to no county or state but, rather, asked the generic question to the witness “What happened?”
Here, State failed to prove its case. Before the State closed its case, the trial judge invited defense counsel and the prosecutor to the bench and advised the prosecutor of the above deficiencies in the State’s case. Thereupon, the State was permitted to immediately present additional evidence and establish the crucial elements *309which were previously omitted.*
When does a trial judge step over the line and become a participant in the advocates’ roles? Ordinarily, the umpire is to call the balls and strikes and not play first base. See, People v. Strickland, 79 Mich.App. 454, 263 N.W.2d 11 (1978); see also, State v. Barker, 227 Neb. 842, 420 N.W.2d 695 (1988).
It is axiomatic that a trial judge pierces his veil of impartiality when he becomes an active participant for one party and against the other party. A trial judge should not go so far as to act as the prosecutor. He should not become an arm of the prosecution. I question highly that the trial judge, in this case, openly displayed bias towards Sonen as advocated by appellant’s counsel in briefing to this Court. In my opinion, the trial court was attempting to prevent a miscarriage of justice, as he viewed the evidence. Certainly, the trial judge here had the right to clarify evidence; but neither he, nor any judge, should initiate evidence. One of the saving aspects of this case, to prevent reversal, is that the trial judge permitted State to do the questioning, with exception of the three questions concerning identification. See, 93 Harv. L.Rev. 633, 650 (1980) wherein the article reflects that a trial judge must resort “... always to the least intrusive measure adequate to the need.” A reason for this is found in a statement at 48A C.J.S. Judges § 36 (1981):
In carrying out his duties, a judge must be fair and impartial, and conduct himself in court in a manner which promotes public confidence in the integrity and impartiality of the judiciary ... Appearance from which favored treatment can be deduced, even without real foundation, can be very harmful to the administration of justice. (Emphasis supplied mine).
I would remind the trial bench of South Dakota that the power to interrogate witnesses is to “... be used sparingly and only when the interest of justice requires.” By judicial fiat, through this Court’s 1981 decision in Lien, this Court has expanded the power to “clarify evidence.” Therefore, in my opinion, if evidence has come into the record which is sketchy or convoluted or poorly presented, a trial judge can clarify the evidence by questioning. This does not mean, in my opinion, that the trial judge should go into altogether new matters, not previously touched upon to some degree.
This case comes dangerously close to a trial judge assuming a partisan role, in light of the fact that the State had failed to prove up its case (by the trial court’s own assessment). I specially concur to caution the trial bench of this state to remember that the robe should not get down into the arena.
CAVEAT
After my research and writing in this case, unveiling other applicable authorities to the subject addressed, a special concurrence was filed to traduce this special concurrence. This attempt to academically dilute my special concurrence does not square with the courtroom scene: If the state had established its case beyond a reasonable doubt why did this trial judge deem it vital to call counsel to the Bench, yes, in front of the jury, have a conference thereat, and point out such evidentiary matters (which the trial judge apparently thought was inadequately presented) such as (1) touching (2) identity and (3) venue? This case, like many criminal trials, was in the throes of critical proof. This bench conference took place in the full view of the jury. In my opinion, such a conference should not have been viewed by the jury. The jury could reasonably infer that the trial judge was aiding the jury to facilitate a conviction. At the bench conference, sua sponte initiated by the trial judge, the proof deficiencies were apparently brought out; the briefs of the state and appellant so suggest. There are various means to communicate. Jurors perceive actions of a trial judge in arriving at a verdict. It can be a shrug, scowl, smile, or look of disdain. It can also be a sua sponte conference at the Bench, followed by immediate questioning.
*310An appellate court has a responsibility to raise the consciousness of the trial bench. I sought to do so by my special concurrence and to better this state’s jurisprudence.
Upon occasion, the opinion of a majority will not actually be erroneous, yet it will verge upon error by straining a legal doctrine to its utmost. In such a situation, a considered and well-stated concurring opinion can be of value by warning that the doctrine must not be pressed too far. In other instances, a majority may announce a doctrine which is sound when applied to the facts before the court, but which would be wholly unsound if given a general application. Here again a timely concurring opinion may suffice to check any extension of the doctrine, and thereby better our jurisprudence. (Emphasis supplied mine).
Moorhead, Concurring and Dissenting Opinions, 38 Amer.B.Ass’n.J. 821, 823 (1952) (The 1952 Ross Prize Essay).
A judge, sitting on the Bench, in a black robe, traditionally enjoys a warm and uncritical trust of the jurors. Intervention, coupled with the jurors’ trust, can upset the equilibrium of normal advocacy relationships in the courtroom. Intervention can provoke partiality, in the eyes of the jurors, for one litigant and against the other. It should be discouraged, not encouraged by appellate courts. Trial judges should not be a formidable arm for the prosecution; or for that matter, of the defense. Trial judges should not traverse the terrain of advocacy. Accord: United States v. Ramos, 291 F.Supp. 71 (R.I.1968), aff’d. 413 F.2d 743 (1st Cir.1969); Nordmann v. National Hotel Company, 425 F.2d 1103, 1109 (5th Cir.1970). If that happens, the plateau of respect vanishes and the judge becomes a wrangler in the arena.
State had not "closed” its case at this juncture.