*1 to file actions and have reasonableness hearings conducted where relationship of principal and agent is unclear or where the possibility of involvement in the cause of an injury by employees other present.
As noted the insurance company's brief it is indeed ironic that the claimant can proceed now against the insur- ance company under the same policy that it into brought the situation place. the first It is also ironic illogical that a release having been given company's adjuster payment for full claim, for the the company is not released. Obviously the claimant would not pursue the in the agent absence of the solvent company. insurance This means that in any such situation no settlement could (1) entered into safely be unless carefully the release named every possible each and master and servant who might have (2) been involved or an action was filed and a court had held a time-consuming hearing to rubber stamp that which plaintiff both and defendant desired and had agreed upon fair and being equitable. J., Durham, J. Callow, concurs with May En 53556-6. Banc.
[No. 1988.] Respondent, v. A. Washington, State of Kermit Belgarde, Petitioner. *2 Belgarde,
Kermit pro se, and Mark Muenster W. of Washington Appellate Association, peti- for Defender tioner. Rickert,
Michael E. Prosecuting Attorney, respon- for dent. Belgarde C.J. Kermit his convic- challenges
Pearson, and first degree attempted tions for first murder degree prosecutorial murder. contends that conduct Belgarde dur- him deprived of a fair trial. We ing closing arguments agree and the convictions. reverse 22, 1984, evening Belgarde,
On the March Kermit Joe Williams, nephew, Williams' Sam young Bright, and visited James Joanne Sam Pape home of and Nunn. Bright argument house, and leave the but was asked to did shooting among culminated the adults which ensued Pape instantly; Pape survived. Nunn. Nunn died Belgarde shooting. Pape did the Williams testified couple. Belgarde shot the Williams this and testified denied evening of the shoot- that on Five witnesses testified couple people. Belgarde ings, he had shot a told them police day, the next talked with Three of witnesses police their tell stories did not but two others shootings. approximately The latter two after the 3 weeks coming saying delay explained forward their (American Belgarde AIM Indian threatened use had Movement) speaking Belgarde against admitted them. his confessions on claimed have heard witnesses who shootings, night but denied the confessions and protect they lying attempted show were Joe at trial five some manner Each of the witnesses Williams. sister The witnesses were Williams' related Williams. husband, husband, her her Williams' niece and nephew. Williams' *3 with he had affiliation
The defendant testified that some as a which he described American Indian Movement closing rights. organized protect During group Indian following argument, prosecutor1 made remarks: to come because of AIM—he AIM—I didn't want They get people. strong in it. She said he even was might might do or his was of what he what friends scared . . wing political is AIM? Sean Finn do. . What of Army. English Republican AIM is to the what the Irish deadly group It is a is to Irish. the Sean Finn of way saying all them not of but that's the madmen. I'm throughout they the world. think it. of Kadafi —feared stability. Why? [Jane We don't' think trust his We don't her, [John Doe], who is a Doe], of all four foot three looking bigger, spend rest their of lives lot wanted go Nohody deserves to have to their shoulders. over They up through on homes. don't We our that. don't Bisagna proceedings [defense Mr. reservation. In the appeal. represented by on different counsel 1The State is
507 I'm of "Well, I'm an Indian. not afraid says, counsel] Well, Bisagna AIM." fine. Mr. doesn't have that's live occupation up Bisagna of cans. Mr. doesn't picking isn't about four foot Bisagna on the reservation. Mr. three inches tall. She frightened. was
. . . AIM —the AIM. ... people frightened are of Knee, remember any Wounded South Dakota. Do of It you? chilling is one the most events the last of You might get decade. talk that over once in there. you That was the American Indian Movement. That was a militant, the American Indians that were faction of butchers, indiscriminately were killed Whites own. That years their event didn't end for some six all the court Is AIM something before battles done. you when are an frightened you to be Indian and live on the reservation? Yes it is. (Italics ours.) State v. Appeals, citing Claflin,
The Court of
38 Wn.
(1984),
App.
Given the undisputed
fact
that no
was
objection
made, the issue
any
becomes whether
curative instructions
would have effectively
Appellate
erased the prejudice.
is not precluded
review
if
so
prosecutorial
misconduct
ill
flagrant
intentioned that no curative instructions
could have
obviated the
the mis
prejudice engendered
207, 221,
conduct. State v.
P.2d
Dunaway, 109 Wn.2d
(1987);
Charlton,
657, 661,
P.2d
90 Wn.2d
Case,
66, 74-75,
The has prosecutor A Knee. Wounded room and discuss jury matters or con- the jury to call to the attention right no to consider. right no have jurors which siderations say the Case, only did at 71. Not supra and madmen butchers group to a belonged defendant he also testified doing in so indiscriminately, but killed who AIM jury He told the record. outside facts fright- madmen", people "the "deadly group was frightened to be "something AIM", that AIM ened of reservation". live on the you are an Indian you of when pro- organized group AIM as a described The defendant AIM statements prosecution's rights. tect Indian
5Q9 (which memory group his he based on own of terrorists is a Knee) argument, not at Wounded constituted of the events description. testimony refuting the defendant's but argues relevant information is The State that such against relatives, testified two of Mr. Williams' who because by delay coming explained defendant, in forward the their expressing defense was a fear of AIM. The defendant's person present, the Williams, had done the other Mr. against shooting. the The who testified five witnesses regarding Mr. were all relatives of defendant his confessions witnesses had waited weeks before Williams. Two of those explanation given coming forward, was fear of and the attempted impeach by Belgarde witnesses to these AIM. pointing prosecutor delay coming forward. The out their the witness stand and testified about reserva- in effect took perception of the American Indian Movement. tion Indians' explanation "testimony" supported the witnesses' This delay reporting alleged the defendant's confessions their thereby credibility by supported their introduction of and prosecution put If the wished to facts outside record. properly AIM, in evidence that Indians fear the vehicle was present "testify" to evidence to that effect. To himself as comprise "madmen" American the and "butchers" that the deny right Indian Movement is to the defendant his prosecutor confront and cross-examine "witnesses". The stepped proper quasi-judicial his role as a offi- far outside jury highly inflammatory give cer and an advocate to the "information". prior prosecu a cases wherein
It is instructive to look to prejudicial as to warrant a reversal. tor's misconduct was so every flagrant prosecutor's argument bit as and here is Reed, in State v. made ill intentioned as the comments supra; supra; Charlton, Claflin, supra. prosecutor liar, the defendant Reed, In called case, referred to the have a defense counsel didn't stated jury clearly if two", asked the "murder defendant city lawyers they going their decision. This make to let there existed in Reed because reversed the conviction court jury's affected the likelihood" the remarks a "substantial was mild Reed, Reed misconduct at 147-48. The decision. In in this case. arguments compared on the defend- Charlton, briefly remarked prosecutor such refer- testify. This court held spouse's failure to ant's ill intentioned and reversed flagrant ence to be request a curative failure spite conviction of a by a poem read a Claflin, instruction. because no was reversed rape victim and the conviction passion appeal could erase such curative instruction prejudice engen- We likewise find prejudice. Ameri- regarding prosecutor's arguments dered *6 a retrial. can Indian Movement mandates prosecutor's the This case also raises the issue of whether due violated on silence post-arrest comments defendant's held that the Appeals The Court of process. proper.
references to defendant's silence were defend- remarked on closing argument the upon initial silence arrest: ant's Schmidt. say anything item. Schmidt —doesn't to
Next to Christiensen, say anything doesn't patrol, the border ask Barriball, except talk to him again him. doesn't framed, getting he is to. This who was jail going guy what wait, you I to tell got think —I would "But you go, don't anything. getting doesn't He's say He something." guys his chance area, in the in the Huntoon but wait —Stokes area, talking. you— no ask the area, Kurhenrewther Gary about to have some doubts beginning who is [Bel- garde]? officers.) police are The named individuals
(Italics ours. Belgarde's prosecutor highlighted in rebuttal Again police his trial defense: to tell failure talk about his client? Why doesn't counsel] [defense story here who heard Oh, yeah, they get a doctor . . . some innocent, you you got story ago. three weeks If doctor. don't tell some you cops. tell You ours.) penalized comments (Italics contends these Belgarde him denied silent and to remain right his exercise process. due We agree.
5;Q not, may consistent with It is settled that State Miranda following post-arrest silence process, due use Doyle trial. testimony a defendant's at impeach warnings (1976). 91, L. S. 2240 610, 49 2d 96 Ct. Ohio, 426 U.S. Ed. v. 1, (1981) P.2d 83 stated at Evans, Wn.2d 633 page 3: use, purposes, of defendant's impeachment [T]he receipt warnings of Miranda funda- following
silence mentally process
unfair and therefore violates the due giving of the Fourteenth Amendment since the clause warnings implicitly silence assures defendant carry no penalty. will in the warnings "insolubly ambigu-
Silence wake of such may merely reflect on the to remain right ous" reliance Doyle, rather than at 617. silent a fabricated trial defense. Further, Miranda that a defend- warnings impliedly assure Doyle, silence will him at ant's not be used at trial. against 618.
However,
right
once a
waives
remain
defendant
police,
prosecution may
silent
makes a statement
impeach
such a
inconsis
use
statement
defendant's
in Doyle
trial
This
to the rule
v.
testimony.
exception
tent
Ohio,
Charles,
supra,
v.
447 U.S.
was set forth
Anderson
404,
(1980). Accord,
L.
222,
Ed.
S.
2d
100 Ct. 2180
711,
denied,
Seeley,
168,
P.2d
review
App.
Wn.
789,
(1986);
Hatley,
We do prosecutor's not find the comments proper Anderson and Cosden. In both under cases, the State was allowed to question partial the defendant's silence at the time he made a police, having statement after waived the silent, right to remain in impeach order to the defendant's case, testimony. inconsistent trial prose- the instant cutor focused any prior not on inconsistent statements defendant, made but on his to make a state- failure immediately ment arrest. upon Although on inconsistent in Belgarde's prior commented statement portions closing argument, challenged other remarks refer specifically present to the officers when Belgarde was apprehended. first The prosecution's remarks which on the defendant's exercise focused of his to remain right Doyle directly silent falls under rule which forbids such silence using imply guilt. disagree We therefore the Court of Appeals and find that such comments on post-arrest However, silence process. violate due light fact arguments regarding AIM reversal, require it is unnecessary to determine whether the comments on post-arrest silence constitute or harmless prejudicial error. repeated. We assume this error will not be
The convictions are therefore vacated and remanded. JJ., Utter, Brachtenbach, Dolliver, Goodloe, Tern., J. Pro concur. Petrie, J., concurs in the result.
Andersen, J. concurring part) (dissenting part, Callow, —Not until now has it over- prosecutors been so clear that when in argument, may reach remain mute and defense counsel need raise no the abuse. It against remonstrance should plain be prosecutors they expect now can no clue they sailing objectionable from the defense when into *8 to trial apparent waters. It should also now be and troubled they superintend that must each moment of a judges court silently *9 the Whatcom Panzero of the Deputy Chief Ron
exculpatory statement Belgarde At that time County Department. Sheriff's Skagit 22, he that County stating in on March being Skagit denied At that time for a County searching job. in Whatcom was had not seen Panzero he knew Williams but told Belgarde had weeks, not know and him and that he did for several Nunn. Pape not shot or his the trial contradicted testimony during
Belgarde's
spending the
Panzero. He admitted
Deputy
statement
County
and visit-
Skagit
Williams
day
question
with
that
but he claimed
night,
and Nunn's house that
ing Pape
with
speaking
admitted
couple. Belgarde
shot the
Williams
confessions,
he
his
but
who
heard
allegedly
the witnesses
to show
attempted
making
denied
such confessions
Williams.
protect
were
lying
that the State's witnesses
comments
that
majority
with the
agree
improper
silence were
post-arrest
on the defendant's
silence
to a defendant's
process. Referring
violated due
he has
arrest,
is before or after
whether the silence
upon his
of
part
misconduct on the
Miranda
warnings,
been given
Doyle v.
reversal.
normally cause for
91,
2240
Ohio,
610,
L.
2d
96 S. Ct.
U.S.
49
Ed.
426
222,
404,
L. Ed. 2d
100 S.
Charles, 447 U.S.
65
Anderson v.
Evans,
(1980); State v.
denied,
2180, reh'g
5^5 Guloy, verdict. See State the same (1986). It (1985), cert. 475 U.S. P.2d 1182 untainted evi overwhelming me that under the appears court, determine test this we should adopted dence necessarily it overwhelming evidence is so whether the Gulóy, at 426. finding guilt. leads to a The critical issue was whether the defendant or Williams Pape killed Nunn and wounded fired the shots which when being present the trial Belgarde during admitted place. Belgarde's guilt took Evidence shootings accounts, eyewitness Bright's and Williams' Pape included testimony Belgarde that he saw enter and exit the house weapon prior following the murder to and carrying just shots, testimony Belgarde and the of five witnesses same The State also shootings night. confessed to the expert testimony corroborating Pape and Wil- presented the location from which both shots regarding liams' stories version of Belgarde's were fired which conflicted all the witnesses was credible save testimony events. The *10 testimony defendant. The of all of the other that of the in that general witnesses was consistent of each testimony the defendant. The other witnesses save that of I by every other witness. of the defendant was contradicted overwhelming guilt the evidence was to the submit the defendant. I with the the conduct of agree majority also included factual recita- improper, was that he prosecutor record, made personal opinion outside of tions appeal were a deliberate to inflammatory comments which it to render passion prejudice encouraging the jury's with AIM on the defendant's associations verdict based majority admitted evidence. The properly rather than on the pros- because while the conduct of part company, early by defense counsel and flagrant, objections ecutor was the prejudice instructions could have avoided curative guilt the misconduct and the evidence by engendered majority the result of the overwhelming. importantly, Most 516 any responsi- counsel to abandon encourage
is to
defense
by
super-
place
to
a sentence
sentence
bility
object
the hands of the trial
conduct
into
vision of a
pros-
when the
undeservedly favors the defense
court. This
duty.
its
ecution
its role and
forgets
see that an accused
attorney's duty
A
prosecuting
Charlton,
657,
State v.
664-
90 Wn.2d
receives a fair trial.
Rose,
309, 312,
State v.
(1978);
62 Wn.2d
65, 585 P.2d
892,
Reeder,
v.
888,
State
46 Wn.2d
Charlton, at 665. may argument during closing
In general, instructions, court set forth state the law as cert. 407, Mak, 718 P.2d (1986), and has wide latitude 107 S. Ct. inferences and reasonable the facts evidence argue *11 Papa v. Mak, State 698, 726; supra v. State at therefrom. (1983). We 401, P.2d 59 397, 662 dopoulos, App. 34 Wn. however, which arguments improper, held consistently have
517
rhetoric,
opin
inflammatory
personal
extraneous
introduce
Reed,
v.
See State
record.
by ion,
unsupported
or facts
Music, 79
(1984); State v.
140,
Case, (quoting People at 70-71 (1899)). 547, N.E. 497 defense did
However,
during closing argument
time
at no
action from
corrective
or seek other
object
counsel
appeal,
as error on
argument
preserve improper
To
court.
mistrial,
request
or
timely
move
object,
must
counsel
*12
State v. Dunaway,
curative
or admonition.
instruction
221,
Charlton,
v.
207,
Defendant should not be A timely objection by responsi- unfair trial. an alert and counsel, disregard an instruction to and an ble defense emphasized from bench could have the admonition the conduct, stopped impropriety of wasteful getting avoiding from out of prosecutor line — difficulty of a retrial. Defense counsel's expense and only unnec- argument not results during closing silence retrials, costly jeopardizes but also essary appeals solely to the rights leaving protection his defendant's appellate courts. by majority. for the reached precedent
There is
result
However,
before has the contrast between
perhaps never
improper argument
of a
unsupported
of a
counsel been so clear
and the absolute silence
defense
I find
majority,
The
reached
which
and stark.
result
overwhelming
evidence
unnecessary
guilt,
view of the
trial judges
to both
message
prosecutors
sends
clear
the evi-
the bounds of
stay
must
within
that prosecutors
as set
argue
trial and
the law
during
dence admitted
in the court's instructions.
forth
evi
the substantial
ignores
the majority
The result of
high degree
reaching
rule
its result because
dence
by the
closing argument
flagrant disregard of
bounds
does so without an examination
prosecution.
majority
reached
only
which
the conclusion
supports
of the evidence
Martin,
in by the
We said
jury.
(1969):
(1968), cert.
responsibility the entire record case of to review overwhelming evi- reversal to ascertain whether there guilt. I shifts the dence of cannot concur a rule which correcting prosecutor's responsibility for defense counsel's entirely judge. misconduct to the trial Durham, J., Callow, concurs with J. May En 54143-4. Banc. 1988.]
[No. Company, Plaintiff, v. Joanne Standard Insurance Petitioner, Schwalbe, Glenda Rae Respondent. Dent, while the defense notes prosecutor's argument appeal errors to case of a conviction. The is now an area where the court must act sua argument the errant whether defense coun- sponte stop sel wishes it or not. only prose- Under the it is when the majority approach, wrongdoing appar- cutor's and should be most egregious nothing, ent to a defense counsel that counsel need do secure in the that courts will save knowledge appellate the defendant in the end. When the demand for action height, should be at its the exercise of the lowest standards is to be rewarded. any by Lest there be confusion left recita- majority's facts, tion of the it appropriate point out that argument which ensued among place adults took boy, because Nunn asked the Sam Bright, to leave because experience she had with him taking things. Belgarde and Williams objected Bright away, to Sam sent being saying that they trying to reform him. Pape testified, trial, at during argument Belgarde threatened him and he Belgarde ordered to leave. Pape that Belgarde said returned moments later with a rifle and shot him. Belgarde Williams also testified that shot Pape both and Nunn. stated that while Bright waiting out- side he saw retrieve a rifle from the and reen- Belgarde car ter the house. He heard two shots and then Williams and house, Belgarde emerged from the still Belgarde holding Bright the rifle. testified on cross examination that Bel- had concocted garde story picking up about a Cuban hitchhiker carrying backpack a blue and a rifle and had that, told to tell Bright story. Bright also testified although he did not see the actual fur- shooting, Belgarde him if say anything ther had told not to and that he did not $5,000. say he him anything, give would night Five additional witnesses testified that on the to them he had shot shootings, Belgarde confessed to sev- Pape and Nunn specifically mentioning people, two witness, Belgarde recounted one eral witnesses. As head off." girl's killed blew this people. stated: "I two trial, at arriving that after during It also came out station, gave County police Belgarde
