*1 filing timеly guilty. plead he intended to together expressed court the justice complaint cause” sufficient “good constituted guilty intention to plead the statute. satisfy find of error. The assignments merit no We affirmed. is judgment JJ., concur. Neill, J.,C. Hunter, Hamilton,
Finley, 38626. En Banc. October 1967.] [No. Henry Respondent, Washington, v. Reinhart State
Nelson, Appellant.*
*Reported in
Schumacher appeal). appellant (appointed counsel respondent. Brown, for L. Edward Reinhart HenryNelson, John Thomas Donworth, J. jointly Burns Alberta Russell Patrick, Jr., and degree they, charged in first in that murder with engaged the scene commission of or with- in the . . . while Attempted drawing glary of Bur- of the crimes Robbery, Degree, Attempted did First in the body . Dan of . . . . . into the . . shoot . wounding mortally and there . . then Damitio, . .... Damitio Dan said charged the murder was information
The amended County Grays home in Harbor Damitio’s at committed February 2,1963. charge guilty of murder pleaded reduced to the degree penitentiary received a sentence. and
in the second guilty charge plea a of a of to reduced entered Mrs. Burns degree probationary a burglary and received second in the pleaded guilty, Nelson, trial who his first At sentence. imprison- life He was sentenced to convicted. was tried judgment Upon appeal, sentence re- was ment. granted be- and he was new trial court this versed against in evidence Nelson of the admission of the cause Grays Gallagher, undersherifi: Harbor A. M. purportеd relating County, details of a oral confes- presence of of the Nelson. State v. Patrick, made out sion (1964). 189,396P.2d Nelson, 65Wn.2d present case appellant’s in the brief is stated It County on Grays Harbor commenced was trial second days mistrial in a later April terminated 1965, which 7, By stipula- case. during presentation state’s ordered County for Thurston then transferred cause was tion, the 1965, 29, 30, June held trial, third sitting jury. Poyhonen visiting Judge Warner before of mur- appellant’s conviction second resulted That trial imposition degree of a sentence and the in the first der judgment appeal from that imprisonment. is taken This life and sentence. by appellant as assignments error are stated
Three follows: permitting prosecution erred in trial court
I. The require to claim John Thomas Patrick presence against jury. self-incrimination admitting opinion erred in F. II. The trial court of R. expert. as an Simmons refusing *3 III. court erred in to dismiss the state’s The trial grounds insufficiency of of case on the evidence. assignments of error in shall discuss these inverse We apparent. for reasons that become order will Insufficiency of the Evidence properly No. the trial court instructed In instruction jury: the of The Daniel E. Damitio died as a result a fact that February gunshot 2, 1963, suffered on or about wound if prove,
you of fact, a does not itself find this to be tend any way prove, that the defendant committed degree support any prоbability of nor does it crime, so. defendant did the Daniel E. Damitio in a crimi- said was killed
That the manner, and that the defendant committed this nal independent facts, of both which the crime, are two State beyond prove a reasonable doubt. If the State must beyond prove doubt, either a reasonable fail to should your for the defendant. must be verdict testimony disputed Simmons, of Mr. the Exclusive following: to show the tended state’s evidence grocery operator of a Dan Damitio was the owner and highway gas his from store and station located across the body in his home home Cedarville. His was discovered morning February by friends, on Mr. 3, 1963, two great Warness and Mr. There was deal blood Golman. through body, rooms of house. The various shot lying on floor of Dr. Charles arm, left was the bedroom. county Pollock, coroner, testified that there was what appeared powder him on forearm of the to be a burn According victim. Dan Damitio from of blood. died loss Pollock, arm, of Dr. in Damitio’s the wound death, he caused strik- which bled was bullet breaking ing upper producing disruption arm, fragmented more blood vessels. Dr. Pollock found one or particles in metalic the arm. apparent attempt
There an Damitio to write a was sometime after was shot. Dr. Pollock testified to will writing having paper table, on a kitchen seen the there beneath which accumulation blood. fireplace hearth, & On the officers found Smith Wessen gun belonged special revolver .38 which to Damitio. cartridges. spent contained two loaded and four There was through house, hole one new bullet the front door through porch an exterior wall. There was blood and two slug through porch. passed on the front recovered and was found to be from the .38 front door was pistol. signs entry through
There no forced either the doors or back door. Both were closed and locked front arrived at scene. witnesses Warness Golman when out, however, was broken and a A front window stick *4 lying davenport on the inside found wood was window. through house entered the Mr. Warness window after glass. removing pieces of broken two utilizing officers, enforcement a metal detector ob- Law premises thoroughly Lewis, searched the from Fort tained casing slug, except Hence, but found none. rifle for for a testimony (to opinion Simmons, of Mr. a former sheriff later), there no direct evidence be discussed was belonging weapon special to the deceased other than the .38 at the scene. was fired together foregoing
The Mr. Sim- evidence, taken with testimony, opinion mons’ constitutes the entire state’s case relating corpus element of delicti, which is the first (see beyond proven the crime to be a reasonable doubt supra), wit, instruction No. that Dan Damitio was killed in a criminal manner. only сonnecting appellant direct evidence with the Burns,
death Damitio was the of Mrs. alleged accomplice. testimony, jury, Her if believed following: would establish the wagon
She and Patrick drove Patrick’s station north February stopping gas for 2, 1963, Aberdeen Hoquiam. They subsequently stops Wigwam made at the They appellant tavern at the Ox Bow. met at a tavern p.m. in Amanda Park at 4 or 4:30 There, about the three played had a few drinks and shuffleboard. Nelson 'and Pat- rick left minutes, for about five but Mrs. Burns testified they that she did not know where went. The trio left the shortly tavern in Amanda Park after Patrick and Nelson they returned, Qui- went to Nelson’s cabin near Lake cabin, nault. Patrick and Nelson went into the re- placing rifle, turned a minutes later few it behind seat of the car on the front floor. Mrs. also Burns already given rifle there, testified that there had been a one Patrick her father some earlier at time. said she had She for, the rifle asked the two what was and one of them “something up.” replied that stopping way Aberdeen, set for three then out on the Midway coffee,
at the Ox Bow and at the tavern on the boundary Hoquiam. between Aberdeen and they they tavern, for Montesano, left that headed
When miles is 10 east Aberdeen. asked Mrs. nylon stockings, replied some and she Burns if she had stopped in Patrick then Montesano she did not. and sent Safeway purchase pairs into the store to Mrs. Burns two *5 making purchаse, nylons. car after returned She They passed Elma. car toward then drove and Patrick through Cedarville. Elma toward they on main road continue did not testified She through a side road when off onto Cedarville, but turned garage. They lights they on in a went car no noticed a stopped mile, at a service sta- and road about down the they stopped, had Pa- that, after testified Mrs. Burns tion. something about which discussed Nelson trick and go way to in. the best be stockings nylon point, she took the Mrs. Burns
At this glove compartment purchased in Montesano out had lap. placed Nelson took on her stated that them She put head, if it over his but that one, it as to stretched stockings they when left the men wore the neither car. telling got car, out of the Patrick
Patrick and Nelson going, keep that, if car the motor Mrs. Burns to along, passed until she the car and she was to drive came along A come car did come turn around and back. then men out the car and Mrs. Burns once the two while obeyed instructions. Patrick’s any- neither of the men took further testified that
She they thing car. re- when first left the with them flashlight. took a Accord- car after a time and turned knowledge, testimony, ing her neither the rifles her sitting lying floor the seat in which she was on the behind she car. also stated that could taken She they way Nelson left the Patrick and went after tell which raining dark and outside. car, because it was lights no there were on either in testified that Mrs. Burns (Dami- from the service station across the street house house) Golman, itself. Mr. or in the service station tio’s house, from the direction Damitio’s shots heard two who just lights in the house went on after the that the testified fired. shots were car, Nelson returned to the Nelson
Both Patrick later admitted to Mrs. saying, shot.” Patrick Burns “I am he, too, shot, had been and she then took the wheel way Hospital Joseph the car and drove the rest St. in Aberdeen. jury was told
In court’s instruction No. the trial that: alleged of an ac-
You consider should *6 complice only great caution. You must with care and subject testimony light in of such to careful consideration other evidence in the case. You should not find the de- guilty testimony on of alone un- fendant the basis such you it, careful of are less, after a examination satisfied beyond all of truth. reasonable doubt its except far, which, The evidence outlined thus for the testimony man, of one the state’s case in its constitutes entirety, support is not sufficient to of Nel- conviction Giving credibility son. full infer- to the evidence with all properly only therefrom, ences to be drawn it shows gunshot Damitio bled to death as a result of a wound pistol only arm. Four shots from his left were fired .38 and four bullets were accounted at the scene the death. Patrick, Nelson, and Mrs. Burns at the scene of the were alleged killing, according testimony. to Mrs. Burns’ That only connecting appellant is the evidence charged. lacking crime There from is the state’s case proof far, thus the essential causal connection between agency of Damitio and the criminal death act person. tending However, another the additional evidence prove element, introduced the state and dis- jury. below, cussed was sufficient to take the case to the assignment Appellant’s of error first is without merit. gun element, In final order to establish that that another (other revolver) Damitio’s .38 fired, than own had been gun from that other caused and that a bullet the wound died, Damitio the state which introduced the testi- Grays County mony former sheriff, of a Harbor Richard Simmons. trial, Mr.
At the time Simmons was director of the Washington Safety He Council. had been sheriff State years prior County trial, and
Grays for 14 Harbor liquor inspector Washington state he had been before large years. He hunted his avocation. for 3 Guns His game, possessed of firearms. an extensive collection guns from 1935.He testi- ammunition dated interest published in articles which were he had written fied that general en- publications circulation, and law national special magazines His interest and bulletins. forcement cartridges rifles. This was his and custom-built in “wildcat” subject testifying particular in- experience first expert. claim to a ballistics He did not be here. volved explosive as to the relative first testified Mr. Simmons pistol striking power He and riflе bullets. bullets testified: then you you opinion
Q. an or not that Dick, do have whether photograph [in Dami- see there wound tio’s inflicted from a bullet from that .38 had been arm] range? opinion? Q. I Yes. special A. Do have at close opinion? Q. A. It is that could Yes, I do. What A. been. have *7 in that the deter rule this state is the established
It expert qualifications matter of an witness is a mination of of the trial court. State discretion sound within (1961). The court P.2d 754 trial Tatum, 58 Wn.2d Appellant’s in case. second discretion this its not abuse did assignment error is merit. without assignment appellant’s error, i.e. main turn to
We now prosecution require permit to error to it was that against privilege accomplice, claim self-incri- Patrick, to his jury. presence of the mination of Error No. Assignment jury, in defense, the absence that the note first We being prior stand, called called to Patrick’s to Patrick had indicated an inten- court’s attention to the against privilege self-incrimination on all his claim tion to night question. relating Mr. questions to the Schu- defense, stated to the court: for the macher, counsel going is to man this doubt about what [I]£ there is testify in the absence call him the Court to to, I can ask questions. prosecutor jury him This ask let the of the and thing very I case and don’t want in this is a critical jury point getting prosecutor to the unanswered their questions. made that:
A motion was call John Thomas to [T]he not be allowed State protection wring Fifth Amend- from him the ....
ment, prosecutor him thаt he Patrick had told admitted that privilege. prosecu- Fifth-Amendment claim his would court: tor told the you going questions—
I “Are claim that on all said, to said, everything “I to we ask?” He don’t know—have wait questions are.” see what equivocation apparent no on that there was Patrick’s It is privilege ques- part intention to claim the to all as to his relating night question. tions the events He had passing also done so at Nelson’s first trial. We note against claim of the self-incrimination Patrick’s although guilty charge proper, pleaded he had was subject second-degree possible murder, since he burglary robbery charge. prosecution attempted on believe, state had reason to before We believe that calling privi- witness, he claim his Patrick as relating night lege questions to the events of the to all question he was the witness stand. while questions some of
It is true that Patrick did answer relationship put name; him on the stand such as his his George deputy acquaintanceship sheriff; Patrick, ownership Burns; his of an automobile; with Alberta appellant Nelson he admitted that knew and had visited *8 (Patrick) pistol; occasion; him on denied that he owned and stated the distance Aberdeen to Montesano. How- given any question relating ever, no answer was to the alleged questions regarding crime. To each the 28 asked n theevents February 2, 1963, Patrick asserted his Fifth- privilege. Amendment objected questiоns appellant, and to which privilage answer, as fol- were
Patrick claimed lows: Directing your night
Q. Patrick, Mr. to the attention, you February you ask if had occasion to 2, 1963,1 of see will George? your brother night you Joseph’s Hospital Q. on the Were at St. February 2,1963? any you gun
Q. [Alberta her Did obtain a at time from Burns] father? go you Q. occasion, Tom, to to Amanda Park Did have day? [February 2, 1963.] you
Q. [the car] Did it to Amanda Park? drive you stop Q. Ox Tav- Did have occasion to at the Bow February 2nd, ern on 1963? February Q. 2nd,—strike that. You recall whether On you or not on that date ever to Montesano? went you Q. Patrick, Mr. I ask or not on Well, will whether you February 2, or not shot and killed Mr. 1963,whether Damitio?[1] Dan you Q. on Tom, out in the Cedarville area Well, were night February 2,1963? you February Q. 2, 1963, Prior to had ever been out the Cedarville area? you
Q. Dan Damitio lived? Did know where you Q. I not on Well, Patrick, Mr. will ask whether you February evening day, at 2, 1963,in of that Dan Damitio’s house and the Cedarville store com- Henry pany Alberta Burns Reinhart Nelson? you Q. Did have occasion to see Mr. Nelson at February 2,1963? time on Henry you
Q. Do whether Reinhart Nelson know out in this area on the Alberta Burns were night Cedarville February 2,1963? you you Q. if Do whether or not or do Dan know know telephone? had a Damitio’s house you pistol your Q. I it didn’t have a car Then take February 2,1963? prosecution made here Patrick could 1Contention question. court, presence not claim contempt jury, record. The court later nоted withdrew jury. ruling, so instructed *9 you station had in that you all Q. tell us what Would February wagon 2,1963? on go you February you did 2, 1963, Q. I if on ask will Cedarville. home at Damitio’s of Dan the basement in? Nelson went Q. or not Reinhart You know whether you February did occasion or Q. have 2, 1963, did On you go Park? in Amanda cabin Nelson’s bring Henry a Q. Nelson date, did Reinhart On that your gun car? kind out to some pistol you Q. [Nelson] a him Well, did ever see February 1963,—revolver? 2, your stockings you any nylon car Q. Did ever have day? on that any stockings, give
Q. date, that Did Alberta Burns you of,— know you again Q. or not on I ask Febru- Tom, whether will ary you Damitio? 2,1963 shot and killed Dan February asking you, Q. I but on Tom, don’t remember intoxicating day you any liquor did 2, 1963, consume at all? any day? you play
Q. Did shuffleboard that you February Q. Did medical attention on receive 2,1963, Tom? (65 previously this case before this court
When was 189), it error for Wn.2d we held that was reversible permit trial court to the state to call Patrick to the stand prosecutor when the knew that would invoke the privilege. present ap- However, Fifth-Amendment peal, greatly differing presented. is set facts invariably note first that reversible error is not
We claims his not to committed whenever witness surrounding look to the answer, but rather courts will States, in each case. Namet v. United 373 U. circumstances (1963). Sup. L. Ed. 2d Ct. 1151 179, 10 S. supra, appellant Namet, contended that
In reversible permitted court error committed the trial when it they question after it witnesses was known the state to рrivilege against their self-incrimination. would claim analysis Supreme applica- Court, in its United States sug- law, factors, ble stressed two of which, stated, each it gested ground a distinct of error. may First, some courts have indicated that error be upon concept prosecutorial based misconduct, when flagrant attempt the Government makes a conscious arising to build its case out of inferences from use of the one of the privilege. testimonial This seems to have been principal error In underlying finding reasons of reversible Maloney, supra [262 535]. United States v. F.2d *10 prosecution knowing case, that the admitted that two key validly privilege of its witnesses could invoke the
against pro- self-incrimination and intended to do so. The questioned secutor nevertheless called and them. The closing argument court also found that the Government’s attempted to make use of the adverse inferences from testify. their refusals to 267 conclusion Tucker, See also United States theory upon 212. A F.2d second seems to rest the given in that, the case, circumstances inferences a witness’ refusal to answer added criti- weight prosecution’s subject cal case in a form not unfairly prejudiced cross-examination, and thus the theory present This also defendant. seems to have been Maloney decision, to some extent in the where the court challenged only the noted that inferences were the corrob- testimony by oration for dubious and interested the 186) (p. F.2d, chief witness. 262 Government’s at 536-537. Noting only ques- the witnesses had been asked four they responded privilege, tions to which with a claim of they given testimony and that had extensive material government’s supra, case, court, Namet, in noted that: hand, On the other courts have failed to find reversible episodes error when such were “no more minor than long
lapses through Hiss, trial.” United States v. (C.A.2d Cir.). F.2d held, The then at 189: court lapses, We cannot that these find few when in viewed planned trial,
the context deliberate the entire or amounted attempts by capital the Government to make testify. out witnesses’ refusals to . . . privilege can find that the few invocations of Nor we significance
by of such the Kahns were the trial that they prosecutorial in the absence error even constituted reversible questions effect of these misconduct. nonprivileged lengthy was minimized present not gave. case is . . . which the Kahns testify is the refusal to one ... source, which witness’ only source, of inference chief even the activity engaged in criminal that defendant. ilege priv- of testimonial In case the few claims this support inference for an at most cumulative portion nonprivileged already the witness’ well established testimony. privi- of Patrick’s claim of the feel that the treatment We lege may aptly charаcterized first trial of Nelson be holding lapse.” circumstances, “minor as a Under the present appeal. there does control in the note first that the state We was aware questions him claim his to all asked as concerning night alleged the events of the crime. He attorney appellant, stated that intention to the who turn informed the court and the state of that intention. prosecutor expressed admitted Patrick had the same though perhaps unequivocally. him, intention to less Fur *11 ther, the state that Patrick had claimed his was well aware privilege incriminating questions as to at Nelson’s first trial. 1959), (3d
In United 212 a States v. 267 F.2d Cir. Tucker, government in case which the the stand a witness called to privilege who had his at the former trial the claimed again case, same re- received his Fifth-Amendment sponse questions propounded to the same which had been before, said, the court 215: at any suggestion government
There rea- is no that the had son would believe that at the second trial questions first answer those he refused to answer at the appeals circumstances, trial. In similar have courts two interrogation, already a second warned that apparent purpose has no invite invocation but to improper privilege against incrimination, self is and is likely error. United v. to constitute reversible See States 613; 1954, 605, 215 F.2d United Amadio, Cir., 7 States 519, 2 179 523. Cases, etc., Cir., 1950, F.2d On third Five question trial of this not bе ernment should indictment, the witness gov- interrogated any about matter to which interpose proper has he reason to believe will interrogating plea of In our self incrimination. view against gravely privilege official self himself abuses the believing in- when, incrimination a truthful answer will asking on witness, criminate a he nevertheless insists eliciting incriminating question a claim of a view to against privilege thereby creating prejudice the wit- party ness or some concerned. other genuine prose- of the Had there been a in the mind doubt again privi- witness, Patrick, cutor claim lege solution, it seems would, as he contended wisest attorney: suggested by appellant’s us, to was that going If there is man is doubt about what this testify absence to, I can ask the to call him the Court jury questions. prosecutor This of the ask him and let the very thing is I critical in this case and don’t want jury by prosecutor getting point their unanswered questions. Appeals in San
As noted the Fifth Circuit Court 1965): (5th States, Fratello v. United 340 F.2d Cir. nothing government’s right to have There is about specific ques- privilege response a witness claim his requires to be under oath that it tions while the stand jury. presence of done in the Another have been to have discontinued solution would once it the examination of this witness the state became apparent claim his did in fact intend to that the witness right privilege, procedure met with as he had a to do. This approval our in the first trial of Nelson. attempted. present
But, case, neither solution was prosecutor and, in stand, called Patrick to the Instead, jury, questions presence of Patrick asked theory substantially entirety outlining in its the state’s anticipated, As Patrick claimed the the case. *12 questions. against to each of the self-incrimination ques- of the fact that several We must further stress by prosecutor on not based were tions asked presented Pat- trial, but taken from in this evidence by alleged undersheriff oral confession as related rick’s Gallagher precisely testi- It was Nelson’s first trial. Gallagher’s, setting mony of Pat- forth details of Mr. rever- purported confession, that resulted rick’s oral supra. Nelson, This first State sal Nelson’s conviction. get by attempt these inad- transparent the state rather jury by way can- inference missible matters before the approved. not be questioning viewed
Finally, must be of Patrick this against background The a whole. case as of the state’s only tending as the died Dan Damitio evidence show one than the result of bullet other a wound caused testimony gun opinion of Mr. fired from his own only placing at the The Nelson Simmons. direct evidence testimony evening question scene is the Mrs. on the alleged testimony accomplice, Burns, seems to be whose they that neither Patrick nor armed when left Nelson was the car. opinion appeal case,
We noted in thе on first this at 191,that: given [T]his [oral confession statements to undersheriff Gallagher by only intelligible Patrick] was the account
presented by happened evening state of what shooting participation of Nelson’s therein. only change presented by substantial in the evidence testimony the state was the of Mr. Sim- substitution mons, who stated that Damitio’s wound could not have special, been caused a shot from his own fired .38 pathologist, according Larson, of Dr. Charles P. “highly unlikely” to whom it was that a bullet fired special .38 would cause such a wound. (D.C. States,
In Fletcher v. United F.2d 724 Cir. 1964), substantially present a case “on all fours” case, stated, the court at that: Among the circumstances of the at bar are the the case following (1) knew, features: The Government testify knew, court also upon Anderson refuse to his claim of under the Fifth Amend- (2) prosecutor questions,
ment. asked a series *13 depicted alleged entirety. which in offense its The questions lapses” were not a as referred to “few (3) testimony sought
Namet. principal The from Anderson was the support of thus,
source of for the the Gov- only witness, driver, ernment’s if the cab jury from answer, drew inferences Anderson’s refusal to (4) purpose. those inferences would have served that testify Anderson’s refusals to not incidents in the were testimony given by of other He course admissible him. gave testimony. formalities, no other such as Save age name, address, his refusals constituted the whole (5) pаrticipation the case. Anderson’s refusals long were not mere incidents in a son’s trial. . . . Ander- part major proceeding. it was a feature of the jury court, Fletcher, The trial instructed the that no presumptions inferences be drawn from Ander- testify, appellate son’s refusal to but court held that such an instruction was ineffective since the trial court right by added to it that the exercise of the Anderson “does guilty.” mean itself, course, this defendant is appellate might The court felt that such a statement have jury they led the to believe that could consider Anderson’s along proof. refusals with other evidence as only given jury The instruction in the instant case bearing on 6, this matter was instruction No. which stated: only The defendant is to on evidence be tried jury, may suspicions
which is before the and not by questions counsel, have been excited answers to permitted, given by which were not or answers witnesses you which have been stricken and have in- been disregard. structed to wholly We think that this instruction was ineffective to dispel improperly inferences that could have been drawn jury privilege. from Patrick’s claim of his seemingly gained rule, established,
This
well
the status of
right
Douglas
a constitutional
the decision in
Ala
Sup.
bama,
380 U.S.
This case cannot be characterized right cross-examination udice denial alleged lapse. statements minor a mere constituted case part clearly of the State’s bore on a fundamental such against petitioner. therefore are The circumstances added to answer refusal that “inferences from a witness’ *14 not weight prosecution’s form case a critical to unfairly preju- subject thus cross-examination, to States, 373 U. S. United Namet v. diced the defendant.” States, 118 U. S. Fletcher v. United 179, 187. also See 420) (1964). (p. App. 137, 724 D.C. 332 F.2d by asking questions It held that the intentional continually privi- the state of the who claimed lege against self-incrimination denial of constituted right the sixth amend- defendant’s to confrontation under See, Pointer v. also, ment to the United States Constitution. Sup. 1065 Texas, 400, 923, 380 U.S. 13 L. Ed. 2d 85 Ct. (1965). prosecutor placing
The conduct of the on the knowing privilege stand, that Patrick claim intended to against questions relating self-incrimination to al- to the leged get seeking crime, and the details of Patrick’s purported jury by way impermissi- confession before the ble inferences drawn the witness’ refusal to answer questions propounded, constituted denial Nelson’s right under confrontation Sixth Amendment. weight prosecution’s inferences added “critical case subject form in a to cross-examination,” and were thus unfairly prejudicial appellant. first-degree judg-
Nelson’s murder, conviction of and the ment and sentence are, based thereon therefore, reversed grant directions to him a new trial. J., Tem., J. Pro concur.
Weaver, Barnett, J., concurs in the result. Hamilton, (concurring)—I J. concur in the result the ma- Hill, jority opinion.
Upon prior appeal (State Nelson, of this case (1964) ), Wn.2d 396 P.2d this court stated that the permitting trial court did not err in as Patrick to be called though a witness the state even it was known Patrick would invoke the Fifth noted Amendment. It was questions that there were Patrick could have which been required incriminating himself, answer without and that precludes the Fifth a blanket Amendment was not questioning, all but is rather a which must be claimed. upon However, case,
This is still the law. retrial granted by protection Fifth the state the shield of made weapon getting case Amendment to the witness its jury by impermissible means of inferences. before the prejudicial amounts to reversible use of such a trial tactic granting of a new trial. I, therefore, error. concur my am, clear that I However, I to make it want committing myself conclusion to the same concurrence, not again reach should this case under the circumstances same *15 (and 1963; in second trial The trial was the this court. first trial) judgment appeal and sentence is from the this testify at of these refusal to both in 1965. Patrick’s was possibility prosecution justified by for of his trials shooting robbery during burglary fatal which the guilty February pled 2, on 1963. He Damitio occurred Dan (second degree) presently and is murder of Damitio serving penitentiary offense; cer- a term at the may parti- tainly any offense in he have been other which February ceps 2, 1963, on is now barred criminis (RCW 10.01.020). longer 3-year He no statute limitations protection of the Fifth Amendment. need of the has no reason to trial, would have state, on another A Fifth Amendment. invoke the believe that Patrick would merely pro- to Fifth Amendment cannot invoke the punishment. States, Marcus v. United 310 another tect 367, 95 (1962); Rogers States, 340 v. United U.S. F.2d 143 (1951). Sup. 438, 19A.L.R.2d 378 Ct. 344, L. Ed. given United States the court
The admonition majority (1959) (quoted in the Tucker, 267 F.2d interrogate trial opinion) on third a the witness on how pres- application trial of the a third case, has no in that ent case. (dissenting)—I with the law view J. Does dissent.
Hale, delicacy murderer such the sensibilities of a convicted attorney prosecuting him to examine is even forbidden although witness, as a witness when believes that may intending give Amendment, vital to claim the Fifth eyes law, now criminal, If so, evidence? occupies superior of hard- a to that of the millions status support working, respectable people and sus- honest, who majority democracy maintain courts. The tain this its grants which, it if trial, me, a new sеems to for reasons effectively law, carried into mainstream criminal will justice. the administration of weaken majority opinion idea that seems to be based on the (1) things, appearing together, a a new trial: two warrant against concurring (2) defendant, weak case inflammatory persistently examination of witness who had indicated intent under Fifth his Amendment answering. refuse my against (1) view, however,
In the case Nelson was strong proof indeed, not but weak based clear cogent showing (2) guilt, prose- circumstances attorney cuting only examining error committed no duty put but, further, had a sworn under the law very questions upon to Patrick the has trial new granted. been majority opinion,
Besides the evidence delineated showing photographs heavy lying have we chunk of wood *16 davenport living position on a in the in such a room as pitched through indicate had it been the front room win- standing dow from the so, outside. To do had to someone be 288 porch. pictures
within the enclosed area of the front copious also illustrate blood stains on and near the front indicating door and sill, door the door to have been touched during evening by bleeding heavily. one who was facts, These coincident the massive on the with wound clearly compatible elbow, victim’s forearm and are theory jury finding case, state’s and enable a range by Damitio had from a been shot at closе a missile high velocity standing weapon, while either on the front porch investigating That the within view window. empty casing officers found no rifle shell at the scene does prove casing fired, that none was but rather that no ejected weapon’s strong from the was chamber—a likeli- prosecutor’s hood mind from statements made prior to Nelson’s first trial. testimony Thus, even before we come to the of Alberta strong proof showing Burns, have we circumstances testimony, Damitio was murdered. Alberta Burns’ corrob- degree by despite Patrick, it orated as was some questions, his strong 28 made a for the refusal to answer case participated Although jury in the crime. that Nelson we against ruled Patrick’s oral confession inadmissible Nelson (State Nelson, trial 65 396 first v. Wn.2d P.2d (1964)), prosecuting attorney nevertheless, 540 developing theory entitled to use this information when his by means of a rifle. of a murder—a homicide committed expert Accordingly, Simmons, the state called Richard an competence testify as an ex- in firearms. Mr. Simmons’ qualifications expert pert here for the an is not doubt (State Kennedy, primarily v. 19 for the trial court are ), (1943) qualified expert 152, 142 247 and a P.2d Wn.2d may opinion express Hedin, on an an ultimate fact. State (1965). 542, P.2d Wn.2d
Relating pictures several of the de- showing explosive pictures ceased, a massive wound almost expressed expert’s opinion appearance, Mr. Simmоns higher produced a much veloc- wound had been that the ity pistol. one from a .38 caliber bullet than fired
289 pistol as such caliber that a .38 testified Mr. Simmons explo- produce massive the in one shot could not Damitio’s left in his damage received sive-type had Damitio which pictures the enabled died, he the from arm and which had caused expert the been wound conclude firearms testimony could well explosive contact. His some sort compatible jury the accepted as the have been Med- Damitio’s death. cause of Mr. as to the other evidence major structures that the established ical evidence literally apart or, as shattered, torn left forearm were wounds, doctor, described medical coroner, “frightfully disrupted.” the fatal also attributed doctor rays high velocity missile. X showed several wounds to a fragments re- arm after the doctor had still in the metal moved some. range of 4 rifle fired within a said that a
Mr. Simmons gases object explosive from effect feet of the has projectile following as from the itself. He as well bullet pistol produce this testified a .38 caliber range. explosive From this and other effect even at close jury have concluded that Damitio evidence, the could well range of from rifle fired at a less than feet. died bullet concerning partici- Next look the evidence Nelson’s we at рation. men, Patrick, Nelson and -arrived simulta- Two p.m., suffering neously hospital both at the at about compatible gunshot entirely Their -are wounds wounds. gunfight at the Damitio resi- time distance with the and dence. deriving from their arrival of evidence at
Other skeins theory hospital prosecution’s their corroborated joint participation. Berkman of the Mr. Weaver Aberdeen response telephone police department that, in to a testified immediately police station, he went call received at the depu- Joseph’s Hospital in Aberdeen where met two St. office Nelson ties from sheriff’s and the three saw emergency deputies He one of the ask Nelson room. heard replied happened Nelson that he shot. what had shooting occurred, officer asked where county.” merely in- officer “in Then the said, Nelson quired received the Nelson had been with whom jury of Nelson’s could take note answer, “Patrick.” The gunshot divulge anything about further failure to rainy hospital on a him to the wound which sent wound—a (Pa- night company of another individual winter gunshot trick) suffering remarks, These from a wound. also prima proof standing provided facie that Patrick alone, county together when somewhere Nelson had been brevity enigmatic they in fail- Nelson’s had been wounded. ing give explanation circumstances further when *18 by reasonably considered for could alsо have been called it jury weighing of in the case. the all the evidence only persuasive Dami- Dan case that a Thus, we have not caliber .38 and not own from a rifle tio died bullet killing. The connecting pistol, the Nelson with evidence but suggested, testimony when Burns, as I have of Alberta already makes out a delineated, to the evidence added strong against in detail how Nelson. described case She day, driven earlier and she had met Nelson, Patrick procured of two lake, the second on the to Nelson’s cabin stockings nylon pairs purchased at Mon- of rifles, two later they mask, used as a would be tesano, how demonstrated stopped night house, Damitio’s of drove the dark running motor her to leave the for car with instructions by, away temporarily Pat- came if cars drive She car, both wounded. Nelson’s return to rick’s and trip part to the of the had drive the last that she testified they got heard Patrick hospital there she when and that telephone telephone. call dove- police This on the call the by at the Aber- Officer Berkman that received tailed with testimony (See Alberta police abstract station. deen A.) Appendix Burns, my standing testimony alone, in Burns Alberta gave corpus proof delicti,
opinion,
added to
when
finding
guilty, and, when
jury
Nelson
for
a sufficient basis
conjunction
evidence,
of the other
with all
considered
testify
against
strong
did not
case
him. She
madе out
leaving
got
car
affirmatively
out
men
that,
when
running,
keep
she saw
motor
her with instructions to
a reason-
him,
one of
rifles with
but
either of them take
jury
her
from
inference
able
to be drawn
point
darkness, she did
rain and
that,
on this
is
due to the
without a rifle.
not see a
not that the men were
rifle,
calling
as a
reasons for
I
next consider the
according
testimony of
Patrick,
for
state.
County
Gallagher, Grays
Undersheriff, in the
A. M.
Harbor
(State
Nelson,
65 Wn.2d
first trial
this information
),
(1964)
oral state-
189,
Understandably, prove very hoped the state to these things through testimony Patrick’s Nelson at second by guilty pleaded had, then, trial since Patrick and to been and, sentenced for the murder of Damitio from the state’s point legitimate view, of no reason evi- had to withhold dence. largely
Nelson bases his claims of error on the direct prior taking Patrick, who, examination of John witness to immunity stand, had said he claim would testifying under the fifth amendment to the United States Patrick’s of Constitution. That claimed fears self-incrimina- spurious illusory only help tion were and asserted to alleged accomplice apparent his is from the fact that he had already pled guilty to and had for been sentenced the sec-
292
ond-degree actually murder of Dan Damitio serv- and was ing prosecuting the sentence. attor- The likelihood that the ney might charge robbery burglary arising him or out as no of the same events is so remote to credence. warrant contingency rate, a At the time face such arises not charges now, if and Hutcheson v. but when such are filed. Sup. States, 599, 137, United 8 L. Ed. 82 Ct. 1005 2d U.S. (1962). danger support of immu- incrimination, of a claim
The genuine nity Amendment, under the must be Fifth killing guilty pleaded of Dan real. When upon plea judgment a been entered Damitio and had penitentiary began of his in the and he the service sentence attorney my second-degree opinion, murder, his no real risk him that he could well have advised incurred prosecution for lesser offenses involved of further possibility he if he told truth. The would murder charge brought penitentiary face a be from the back arising burglary robbery out the events killing as tо be com- were so remote admitted Damitio pletely illusory. Satterlee, 58 Wn.2d See State (1961). P.2d point, accept of Hutcheson I the rationale
On this supra, legitimate purposes States, v. United judicial possible inquiry ought oc- not be thwarted enough unlikely Time of a event. currence remote unlikely event occur. the harm should the consider upheld Supreme of con- Court, case, a conviction in that testify tempt committee for refusal to before select criminality investigate convened to United Senate States rejected labor-management defendant’s relations. court right claimed him under denial to refuse—a refusal process Amendment for than Fifth due law rather under a state that the indictment reason charging practices, corrupt and both court a claim of under and refusal before the committee Senate immunity be admissible of the Fifth Amendment would *20 against him in the court. state
293 testifying immunity under Answering claim to his Hutcheson, 612: at process in said clause, the court the due petitioner in this appropriate that, had the for time Committee, before claimed the instance conviction, upon of his state review would have been when we would any, exactly if use, what known have exer- To claim. thwart federal made of the State had power, of congressional on the basis legitimate cise of conjecture may an individual’s later abuse State require rights, of federally upon would assured reliance contrary adjudication well-estab- aus constitutional justiciability. principles ripeness of lished robbery burglary charges or no case, In the instant against Had Patrick. form the witness had been filed fears of self-incrimination deemed Patrick’s the trial court give illusory evidence, I and ordered him and frivolous supra, Supreme Hutcheson, say Court said would as the 613, at junc- challenge at this
such a ture. The review the should not be dealt with proper be on for its consideration would time state conviction. if assume Pat- meet head on—even we the issue But—to arising burglary robbery prosecution for or rick’s fears killed were well events in Damitio was out examina- error founded, I see no reversible genuine arguendo, Conceding, that Patrick had tion.2 immunity Amendment, I do not Fifth claim under the allowing his direct examination see error in the court’s specific requiring claim as to the him to assert the questions put him. say, majority opinion, over I either brushes attorney duty prosecuting
lightly ignores a basic competent present relevant evidence material, all Maryland, (Brady possession 83, 10 L. Ed. 2d 373 U.S. Barton, 2Although 105 P.2d we held State v. Wn.2d robbery (1940), that, of murder lesser included offense since was not a arising acquittal although transaction, of murder from the same and an appear subsequent prosecution robbery, it would did not bar a immunity really play come into until the Fifth-Amendment does not actually brings prosecution. the state a second *21 (1963); Sup. States, 215, 83 Ct. 1194 Marshall v. United 355 (9th 1966) ), principle F.2d 999 Cir. and overlooks the unexplained a failure to call to a to the stand witness knowledge may crime or one a has relevant raise who it presumption that evidence have unfavora- been Porte, 816, ble to the state. State v. La 58 365 P.2d Wn.2d (1961); 24 806 Baker, 846, State v. 56 355 P.2d Wn.2d (1960). Believing eyewitness Patrick as as to be to well participant knowing crime, a him to be avail- prosecution able, the had call him or risk inference to that, called, because was not his would have been favorable to the defense and unfavorable to the state. brings precise question
This us to in issue. With Patrick in witness, court as it error available a was put jury him on the stand before a on direct examination despite pretrial his statement that he would claim immu- nity testifying from under the fifth to the amendment Con- stitution of the United States? already pled guilty
Patrick, noted, as has been had to the except and, defendant, murder of Dan Damitio for the guilt any knew more about Nelson’s or innocence than man Assuming may right alive. that Patrick have claim had himself, the Fifth Amendment for the claim of error arises postulates not from Patrick from but the defendant who' immunity, error on Patrick’s claim of not his own. evidentiary, error, if then, Nelson, as to becomes States, constitutional. Namet 179, See v. United 373 10 U.S. Sup. (1963). L. Ed. 2d 83 Ct. 1151 designed protect The Fifth Amendment is a shield right personal witness, not others. It is a § cannot be claimed 58 others. Am. Jur. Witnesses 49. reason, For this the witness must be sworn and must wait question propounded may until has been before he immunity answering. Merely putting claim his question question improper, does not render the isit privilege witness’s to answer if he it chooses. 58 Am. Jur. precisely § happened Indeed, Witnesses 53. that is what questions gave here; Patrick did answer several Nelson connect evidence to and relevant material Dan Damitio. murder of majority implies opinion that, because jury, consti-
obliged this claim his before citing v. United States Nelson, error in the trial tuted 1959), (3d Fratello and San Cir. Tucker, 267 F.2d (5th 1965), it was States, Cir. United 340 F.2d “became once it the examination error to have continued claim apparent intend to did in fact that the witness privilege.” reasons warrants Neither of these ascribed my opinion. trial, new place, being jury trial, relevant all
In the first this *22 jury. presented open Pat- in court evidence should be to suggestion the rick not on that examination was trial. jury’s in came Nelson’s attor- be held first absence ney, questions In addition which not Patrick. he did Patrick refused were a number which to answer doing (as gave in be elect to answer and so will later shown) competent sup- material, relevant and evidence in port jury, judge, not the sole of the information. had weigh credibility responsibility to measure and and as- of his from his and sess the truthfulness answers demeanor appearance on stand, the witness and to relate his evidence of the other the case. all evidence
Thus, the claim of error based on a failure rehearse judge testimony jury is before the alone without the only one can be on trial that based court’s asserted curtailing limiting abuse of discretion the exami- like circumstances, nation. Direct examination such generally, resting matter cross-examination is a sound discretion of the trial court. That trial court’s soundly may discretion was be seen in sev- exercised illuminating gave, despite eral answers the his re- peated Consequently, refusals to I no answer others. see allowing proceed. abuse of discretion in the examination to adopted by majority The rule criminal allow conspirators accomplices longer and no on trial to dominate procedure by blandly and control the in criminal cases ques- announcing they trial intend to answer before that n<? might incrimi- tions for tend to the reason that the answers power annul court’s nate. It is a rule which will actually question if canvass each and decide the answer pros- deprive witness, tends to incriminate and will very may ecution of the valuable evidence it elicit before jury questions from the are in fact answered. Patrick’s Amend- refusals to answer under Fifth interspersed ment, seen, as have a number we supplying competent material and evidence. He answers acquainted Burns, he and testified that with Alberta he her knew father. This tended to corroborate degree acquaintance- prior some ship of a Mrs. Burns’ supported her father her
between and she on the floor of Patrick’s statements that saw backseat given car rifle her father him. Pat- which 'she knew had driving rick testified that he was a car on or about Febru- ary 2nd; he stated that he did not own it but that it was registered to asked owned the car he had him. When who day, driving He answered, been he “Hoffman Motors.” wagon, 2-seated, testified that the car was a Ford station folded down. He the backseat thus described the could have taken them to the automobile which Damitio hospital. house from there to the anytime February the car Asked whether drove *23 places—all 2nd, answered, “a lot of different over Aber- deen,” but claimed the Fifth Amendment asked if he when day. testimony drove it to Amanda Park that This corrob- given by orated the evidence Mrs. Burns. It showed that only capable driving automobile, Patrick not but driving day easy had been it on the crucial within automo- testimony bile travel of the Damitio residence. Patrick’s ready accessibility placed him in the area to Damitio’s of Alberta Burns’ house and at time corroborative testi- mony describing drove to Damitio’s how trio house that night in car. It tends to bear out Patrick’s Mrs. Burns’ Patrick drove the car whiсh Nelson rode agreed place of the crime. testimony: To continue asked how with Patrick’s When long Grays prior February 2nd he had lived Harbor sup- County, my life,” Patrick testified all thus “Almost plying jury from evidence which the could infer his knowl- edge easy the area, roads, the back and his ascertain- claiming ment of where Damitio after Then, lived. immunity questions, Fifth Amendment to several direct following examination occurred: you Henry Q. Do a man know the name of Reinhart you Q. Nelson? A. Yes. him? How well do know A. How
long? you Q. I don’t remember. When did meet him? A. you prior Q. I don’t remember. Did him know to Feb- ruary vious you, long pre- Q. 2, 1963? A. Yes. You remember how Q. No, to that? A. I don’t. close friends How were acquaintances? Q. —casual A. Yes. Ever visit back Occasionally. and forth? A. again supports testimony. This evidence Mrs. Burns’ It strangers showed that Patrick and Nelson were to each they enough other; that each knew other well to visit back occasionally—and readily and forth thus met, could have planned actually crime, Patrick, carried it out. the course of his examination, then if was asked ever he pistol had owned a answered, and he “No.” When asked if pistol ever he had had a car, he answered, “No.” Again, degree this proof corroborated in some the state’s pistol that Damitio did not die from a It bullet. corrob- proof orated the state’s that the assailants had not shot into pistol pistol house awith that all shоts came from the inside of the house. refusing questions
After to answer more under a claim of the Fifth Amendment, Patrick did answer several others: you Q. know, Do did —where Reinhart Nelson live you visitng
when him, back and forth? A. Q. Q. Amanda Park. Pardon me? A. Amanda Park. And place what sort of a near About miles. How far is know? did he live in? A. Lived in a house Q. Quinault? Q. a sawmill. Is that near Lake A. Yes. fifty far is that how A. Aberdeen? About Q. it you from Aberdeen to Elma, if Q. A. I don’t know. far is How it from Aberdeen you Eight Montesano, if A. know? miles. *24 298 testimony clearly the corroborates latter
This of them went to where the three as to of Alberta Burns again supports up that Patrick pick inferences the rifle pro- county knowledge It roads. its the had some acquaintance proof of with defendant additional vides friendship specific supplies of a be- evidence Nelson Nelson. Patrick and tween
Allowing of Patrick demonstrates the direct examination privilege the rule that Fifth Amendment wisdom of the the solely personal for his is on the stand and is the witness (Rogers 95 L. States, United 340 Ed. benefit v. U.S. Sup. (1951) ), constitutional 344, 71 and that this Ct. privilege alone and cannot be utilized vests the witness by 58, 401 Dickens, 66 Wn.2d P.2d the defendant. State (1965). belongs privilege Since the constitutional the exclusively by an witness and cannot be asserted accused granting denying witness, other than the error in the privilege unless dem- cannot be asserted defendant propounding questions onstrates that mere the some- grievous immunity how such a error constituted that the ought to be deemed transferable witness to defendant.
Wigmore expresses proposition this as follows: privilege, except case of an accused a not a merely option criminal . . is., refusal, case an prohibition inquiry. ordinary . . it . Hence follows that when an incriminating fact, is and an on stand relevant through proved question
issue, him, is desired to be may which say, is him asked, be and it then to terms may reasonably expected be court to un- privilege, claim of derstand to that he exercise be will option given him It the law. cannot be known plead he will beforehand whether .... question prevent Besides, would be to convert option prohibition. into a universally Accordingly, it is almost conceded that the put may Wig-
question to the witness be stand. 8 (McNaughton 1961). § 2268 rev. more, Evidence privi- as as sense, law, well dictates that the Common merely lege against option is self-incrimination of re- other for if it fusal and not a prohibition inquiry, *25 conspirator to or convicted wise the confessed accomplice the in and crimes prevent the most brutal sadistic of could him the mild embarrassment state from to even subjecting by making of his court claiming immunity open simply to the state’s his disinclination to take the attorney known stand. claim Hence, the law no blanket of immu recognizes nity evidence, must, and the if he giving witness will it, assert claim his right to refuse as to each asked. question James, State v. 882, 36 221 Wn.2d P.2d 482 Hutche (1950); son Statеs, v. United 369 599, 137, 8 L. Ed. 2d 82 U.S. Sup. Ct. 1005 (1962). refers to v. majority opinion Douglas Alabama, 415, 380 934, U.S. 13 L. Ed. 2d 85 Ct. 1074 Sup. (1965), Texas, and Pointer v. 400, 380 U.S. 13 L. 923, Ed. 2d 85 Ct. 1065 Sup. (1965), as controlling but consequence, cases, those me, it seems to do not meet the issues pre sented here.3 Texas, 3I do 400, not believe either Pointer v. 380 U.S. 13 L. 2d Ed. 923, Sup. (1965), Douglas Alabama, 415, Ct. 1065 v. 380 U.S. 13 L. Sup. (1965), authority
Ed. 2d
Ct. 1074
relevant
to or
the
present
issues
in this case.
transcript
Pointer
involved admission of the
taken at a
preliminary
hearing
present
where
defendant was
without
counsel
holding
and did not cross-examine.
In
transcript
admission of the
trial,
Supreme
reversible
error at
said,
Pointer’s
Court
at 407:
quite
The case before us
Phillips’
would be
a different
one had
full-fledged
hearing
statement
been taken
petitioner
at a
at which
represented
by
given
had
complete
been
counsel who had been
adequate
opportunity
to cross-examine.
.
.
. Because the tran-
script
Phillips’
against
petitioner
statement
offered
at his trial
had not been taken at a time
affording
and under
circumstances
petitioner
Phillips,
through
adequate opportunity
counsel an
to cross-examine
its
against
introduction
in a federal
court
a criminal case
Pointer would
privilege
have amounted to denial of the
of confronta-
guaranteed
by
tion
the Sixth Amendment.
Douglas,
prosecution managed
In
get
jury
before the
accomplice
contents of a
testify
written confession of an
who refused tо
segments
reading
under
the Fifth Amendment
of the statement
to the
asking
you say
him,
you
witness
that,”
“Did
or “Did
make the
statement,”
Basing
further
ruling
or words
to that effect.
its
on the
proposition
losing
that,
right
to cross-examine
the witness as to
testify
the statement
because of
latter’s
refusal
under
the Fifth
Amendment,
deprived
right
the defendant
on trial had been
of his
Amendment,
saying
confrontation
under
the Sixth
at 419:
petitioner’s
case,
inability
In the circumstances
of this
to cross-
Loyd
alleged
plainly
examine
as to the
confession
denied him the
278, 83
L. Ed. 2d
States,
179, 10
United
373 U.S.
Namet v.
(1963),
no con-
has
the defendant
Sup.
holds that
Ct. 1151
immunity
aof
privilege
Fifth-Amendment
stitutional
prosecution called and
here,
as
case,
In that
witness.
his intention
earlier declared
had
examined a witness who
against
self-incrim-
Fifth-Amendment
to claim his
Characterizing
claim of error
the defendant’s
ination.
evidentiary
examining
calling
as
the witness
said, “All that case
only
constitutional,
court
and not
evidentiary
error.”
claim of
trial
short, is a
involves, in
Gernie,
accepting
of United States
the rationale
Then,
1958),
(2d
v. United
and Weinbaum
Cir.
lower rationale of those even the basic for that within we think case. In error not committed this cases reversible any support place, not inference record does the the first true, course, is Kahns of that Mr. prosecutorial misconduct. It Fitzgerald invoke their that the announced certainly questioned. privilege if But testimonial every accept at face value asserted prosecutor not need case, In privilege, no matter how frivolous. this claim initially not believe the Kahns prosecutor did could, privilege against properly their invoke self- reasoning justification with some incrimination, their charge gambling guilty would erase plea by the Confrontation Clause. right secured of cross-examination witness, the inference from not a Solicitor was Since . . . Loyd reading could tested made the statement not be opportunity to cross-ex- . . Nor was . cross-examination. amine of the adequate this denial officers to redress enforcement the law right the Confrontation Clause. secured essential (Footnote privileges testimonial as to that conduct. omitted.) upon judge, witness, decides who not the
It is the admissibility demonstrates instant case evidence, and the electing to Patrick, in rule. sound reasons this well the supply questions, seen, have did, as a we answеr number support competent informa- material and evidence jury may denied well have been tion—evidence which required prosecution examina- to rehearse the if obliged jury’s absence, or had the court been tion in the accept assertion that he would face value the witness’s at testify. Fifth Hence, claims the where witness judge, Amendment, the trial not the witness it is defendant, has the discretion as to the extent who allowed, examination to be whether and to what extent jury’s required absence, rehearsal shall be particular questions may Only incriminate the witness. manifestly discretionary when the trial court abuses this power appeal. should conviction be reversed may
If cannot call examine a the state witness who right grounds claim his to refuse on the of self-incrimina- estop prosecution tion and the claim is held to even asking questions, can how the court rule on Why, whether the answers will tend to incriminate? then, every giving could not recalcitrant avoid evidence simply by notifying prosecuting attorney that he will claim the Fifth Amendment? *27 majority suggests problem that this will be avoided jury question
if the court but retires the and hears the only, procedure usually its however, absence. Not does this prove importantly, awkward, cumbersome and but, more deprives right important the state of a valuable to have an part place jury. of the trial take beforе the Who is to a decree as matter of that the not, law witness will under jury’s presence, the stimulus the answer number of questions categorically which would refuse to answer in jury’s judge required, the absence? Had the been in the jury’s questions absence, hear to on all first, rule the categorical undoubtedly met have been with
state would any. by Patrick to answer refusal right require say, therefore, I the state has made in Fifth Amendment be that the claim of the only jury—subject of the presence to a clear abuse altogether likely that discretion—for it is trial court’s questions before more inclined to answer will be jury than in its absence. right Guarding against to call a of the state’s an abuse privilege, may Fifth-Amendment claim his witness who safeguards: provides several law judge appears that the examination trial 1. If it inflammatory a tool to device rather than an has become competent court, in the exer- evidence, the relevant, elicit discretion, can terminate of a sound reviewable cise examination. disregard ques- jury may instruct the The court
2. only, pointing out the evi- and heed the answers tions witnesses, examiners, not the from the comes dence jury may time to time. caution so require pros- may, jury’s absence, court 3. The prosecution attorney ecuting has that the to demonstrate possesses legitimate the witness to believe reasons knowledge and that the examination relevant material merely good information to fish for faith and is done jury. before they belong—in safeguards the trial rest where
All three discretion. court’s spell permitting
Although out the reasons for did not we jury trial, the first before we examination Patrick’s (State questioning him not error v. Nel rule that did (1964)); 189, 396 P.2d inference we son, 65 Wn.2d judge; the discretion the trial we matter to left ruling. stay should prosecut- rule to I state the be that the
Therefore, would may attorney ing call a witness to the stand who has indi- testify grounds refuse on the intention cated (1) may to incriminate him when the tend answers
303 good reasonably faith believes attorney in prosecuting and evi- competent relevant and material, that the has witness possibility (2) give; reasonable is a there to when dence answering questions, may, while some that the witness sup- others, claiming to has Amendment the Fifth tending prove issues ply material evidence to material (3) is con- examination case; fact in the when purpose to elicit show a manner as to ducted such legitimate questions, i.e., material and relevant answers prosecutor way intends that the in such a as to demonstrate questions evi- constitute the the answers and not the dence. (1952), Weekly, 252 P.2d
In State v. Wn.2d said, 728: we at by good faith counsel can be tested follow-
ing, among inquiries: question upon other Was based it material and rele- facts established vant? Did counsel have the record? Was basis for belief that the objection to it? Did cоunsel court would overrule ruling pursue inquiry abide the of the court and not objection ques- Each of after the sustained? these in the affirmative this case. tions must be answered conducted, it then rests When the examination is so as within the sound discretion the trial court to how may protracted or detailed the examination be.
Accordingly, prosecuting attorney if the believes that a concerning possesses vital evidence the commission duty trial, the defendant has sworn of a crime jury. possibly present And that witness to who could cogent possess of a more evidence murder than an vital planned, accomplice with, the fact—one who talked over killing defendant, with the to the scene one and went present and heard the fatal shots saw fired who was scene from the accused and then and who fled hospital at the same time with the entered the accused for gunfight each received in wounds the treatment met his death? which victim ought place create devices which control of
The law prosecutions in the hands of criminal avowed criminals nor procedures develop prevent attorney prosecuting out oath of carrying office. *29 I would affirm.
Hunter, J., concurs Hale, with J.
Rosellini, J., concurs in the result dissent. the
Appendix A Abstract Alberta Burns riding February 2, Patrick, in Pat- Burns Tom Alberta and stopped gas they stopped car, a Hoquiam; at for in rick’s afterwards stop Wigwam; then Tavern tavern called the and madе a at the Oxbow hamburgers Park for to a tavern at Amanda and coffee and then drove They they quite a met around 4 had where defendant Nelson 4:30. played there, Patrick few at the and shuffleboard. While beers tavern they minutes, returned, and and left alone lor about 5 Nelson her when Quinault. on all the cabin Lake three left tavern and drove Nelson’s they stayed and a few minutes three went into the cabin for where bringing car, him from one of the men a rifle with then returned the put floor the the one the men the rifle the behind She cabin. saw belonging once another rifle where also there was front seat she knew gun for, the from the Nelson cabin to her father. She asked what was “Something up.” said, and them was one of They cabin, Nelson then out in car from the started Patrick’s again stopping driving at the Oxbow for coffee. and toward Aberdeen they Aberdeen, stopping leaving Oxbow, proceeded toward After the Midway for coffee. It dark. another time the Tavern was now at Midway they Montesano, Leaving Tavern, drove toward and while the hearing, any nylons route, Patrick, her in asked if she had en Nelson’s Safeway stopped answered, Patrick at the store she “No.” to which get you nylons,” said, “I and she some went and want Montesano bought pairs nylon stockings. After two she the street and across driving nylons, three, the Patrick and the with returned to the car with quite middle, Elma. It drove toward was now dark. Burns the Mrs. Thеy through field described as cedar on the main what she drove they off off into a road. Just as turned onto the turned side road and road, Nelson and heard a conversation between Patrick con- she side lights garage cerning no with on. a car driving They the side road about a down mile continued when stopped car, heard men and she the two have a the conversa- Patrick go concerning the would be best to in.” tion “which bag stopped, containing took the Mrs. Burns car the was While glove opened nylons compartment, sack, purchased and picked lap. up stockings stockings one on her Nelson of the laid the “put top his hands. She saw him of it with it around— stretched something doing around trying it head or around his stretch it his head.” station, Patrick they stopped and Nelson at a service She said they stopped, still Nelson was got and while Just before out the car. keep motor keep car and car, in the “told me to in the Patrick passed car and then along, I going, until came to drive and if a car by, and, did come that a car She said turn around and come back.” passed, pulled turned following car instructions, until she out these opposite finally Elma, being back, around, headed toward came they approached station. the service had from the direction from which automobile, doing this, Patrick but Before men had left two get flashlight. car dark she waited came back to It was while being lights men, or the Damitio in the store for the there no two arriving returned, later, first. A men Patrick home. little the two while got minute the car about a He in on the driver’s side. Nelson reached car, he leaned over the front later. As he reached the front getting fender; automobile, said, then, “I A little into he am shot!” wheel, shot, at the while later Patrick said too. With Patrick was they reaching Joseph’s Hospital Before drove St. Aberdeen. toward stopped hospital, car, told her hand *30 hurting driving. him, them Burns took over She drove Mrs. straight Joseph’s Hospital car, Burns drove the to St. Aberdeen. Mrs. up emergency hospital men, entrance, to the two wounded helped put attendants Nelson out the car and him a stretcher. They hospital o’clock, arrived at the about and she heard Patrick telephone police make call to the station Aberdeen. says response telephone that, calls, Burns some Mrs. deputy police hospital; sheriffs and the Aberdeen arrived at deputies sheriff’s took Mrs. Bums to the sheriff’s office in Montesano. [Adverting testimony, to the earlier she men she saw two testified] get they stopped station, out of the car after at the service but she did anything them; not see whether either had his hands. She waited for nothing. She that Patrick came once she heard remembered back get flashlight, car to 10 or 15 minutes after he had left the first time. says nylons car, not see them remove the She she did from the but they would have been unable to see them if had done so.