State v. Belgarde

755 P.2d 174, 110 Wash. 2d 504

• Court: Washington Supreme Court
• Decided: May 26, 1988
• Docket: 53556-6
• Status: Published

Opinions

Pearson, C.J.

Kermit Belgarde challenges his convictions for first degree murder and attempted first degree murder. Belgarde contends that prosecutorial conduct during closing arguments deprived him of a fair trial. We agree and reverse the convictions.

On the evening of March 22, 1984, Kermit Belgarde, Joe Williams, and Williams' young nephew, Sam Bright, visited the home of James Pape and Joanne Nunn. Sam Bright was asked to and did leave the house, but an argument ensued among the adults which culminated in the shooting of Pape and Nunn. Nunn died instantly; Pape survived. Pape and Williams testified that Belgarde did the shooting. Belgarde denied this and testified Williams shot the couple.

Five witnesses testified that on the evening of the shootings, Belgarde told them he had shot a couple of people. Three of the witnesses talked with police the next day, but two others did not tell the police their stories for approximately 3 weeks after the shootings. The latter two explained their delay in coming forward by saying that Belgarde had threatened to use AIM (American Indian Movement) against them. Belgarde admitted speaking with the witnesses who claimed to have heard his confessions on the night of the shootings, but denied the confessions and at trial attempted to show they were lying to protect Joe Williams. Each of the five witnesses were in some manner related to Williams. The witnesses were Williams' sister and her husband, Williams' niece and her husband, and Williams' nephew.

The defendant testified that he had some affiliation with the American Indian Movement which he described as a group organized to protect Indian rights. During closing argument, the prosecutor¹ made the following remarks:

AIM — I didn't want to come in because of AIM — he said he was strong in it. They get even with people. She was scared of what he might do or what his friends might do. . . . What is AIM? Sean Finn is the political wing of the Irish Republican Army. AIM is to the English what the Sean Finn is to the Irish. It is a deadly group of madmen. I'm not saying all of them but that's the way they think of it. Kadafi — feared throughout the world. Why? We don't trust his stability. We don't' think [Jane Doe], all four foot three of her, and [John Doe], who is a lot bigger, wanted to spend the rest of their lives looking over their shoulders. Nohody deserves to have to go through that. We don't in our homes. They don't up on the reservation. In the proceedings Mr. Bisagna [defense counsel] says, "Well, I'm an Indian. I'm not afraid of AIM." Well, that's fine. Mr. Bisagna doesn't have an occupation of picking up cans. Mr. Bisagna doesn't live on the reservation. Mr. Bisagna isn't about four foot three inches tall. She was frightened.

. . . AIM — the people are frightened of AIM. ... I remember Wounded Knee, South Dakota. Do any of you? It is one of the most chilling events of the last decade. You might talk that over once you get in there. That was the American Indian Movement. That was a faction of the American Indians that were militant, that were butchers, that killed indiscriminately Whites and their own. That event didn't end for some six years before all the court battles were done. Is AIM something to be frightened of when you are an Indian and you live on the reservation? Yes it is.

(Italics ours.)

The Court of Appeals, citing State v. Claflin, 38 Wn. App. 847, 690 P.2d 1186 (1984), review denied, 103 Wn.2d 1014 (1985) recognized that ”[m]ere appeals to jury passion and prejudice, as well as prejudicial allusions to matters outside the evidence, are inappropriate." State v. Belgarde, 46 Wn. App. 441, 448, 730 P.2d 746 (1986), review granted, 108 Wn.2d 1002 (1987). However, the Court of Appeals held that because defense counsel had failed to object to the prosecutor's remarks, the issue was not appropriately raised on appeal.

Given the undisputed fact that no objection was made, the issue becomes whether any curative instructions would have effectively erased the prejudice. Appellate review is not precluded if the prosecutorial misconduct is so flagrant and ill intentioned that no curative instructions could have obviated the prejudice engendered by the misconduct. State v. Dunaway, 109 Wn.2d 207, 221, 743 P.2d 1237 (1987); State v. Charlton, 90 Wn.2d 657, 661, 585 P.2d 142 (1978); State v. Case, 49 Wn.2d 66, 74-75, 298 P.2d 500 (1956); State v. Claflin, supra at 849 n.2. These inflammatory comments were a deliberate appeal to the jury's passion and prejudice and encouraged it to render a verdict based on Belgarde's associations with AIM rather than properly admitted evidence. The remarks were flagrant, highly prejudicial and introduced "facts" not in evidence.

A prosecutor cannot be allowed to tell a jury in a murder case that the defendant is "strong in" a group which the prosecutor describes as "a deadly group of madmen", and "butchers that kill indiscriminately". The prosecutor likened the American Indian movement members to "Kadafi" and "Sean Finn" of the IRA. This court will not allow such testimony, in the guise of argument, whether or not defense counsel objected or sought a curative instruction. An objection and an instruction to disregard could not have erased the fear and revulsion jurors would have felt if they had believed the prosecutor's description of the Indians involved in AIM. This court cannot assume jurors did not believe the prosecutor's description. We have repeatedly explained that the question to be asked is whether there was a "substantial likelihood" the prosecutor's comments affected the verdict. State v. Reed, 102 Wn.2d 140, 147-48, 684 P.2d 699 (1984); State v. Charlton, supra at 664. There is a substantial likelihood this egregious departure from the role of a prosecutor did affect the verdict. "If misconduct is so flagrant that no instruction can cure it, there is, in effect, a mistrial and a new trial is the only and the mandatory remedy." State v. Case, supra at 74.

The prosecutor's argument invited the jury to return to the jury room and discuss Wounded Knee. A prosecutor has no right to call to the attention of the jury matters or considerations which the jurors have no right to consider. State v. Case, supra at 71. Not only did the prosecutor say the defendant belonged to a group of butchers and madmen who killed indiscriminately, but in so doing he also testified as to facts outside the record. He told the jury that AIM was a "deadly group of madmen", "the people are frightened of AIM", and that AIM is "something to be frightened of when you are an Indian and you live on the reservation". The defendant described AIM as a group organized to protect Indian rights. The prosecution's statements that AIM is a group of terrorists (which he based on his own memory of the events at Wounded Knee) constituted not argument, but testimony refuting the defendant's description.

The State argues that such information is relevant because two of Mr. Williams' relatives, who testified against the defendant, explained their delay in coming forward by expressing a fear of AIM. The defendant's defense was that the other person present, Mr. Williams, had done the shooting. The five witnesses who testified against the defendant regarding his confessions were all relatives of Mr. Williams. Two of those witnesses had waited weeks before coming forward, and the explanation given was fear of AIM. Belgarde attempted to impeach these witnesses by pointing out their delay in coming forward. The prosecutor in effect took the witness stand and testified about reservation Indians' perception of the American Indian Movement. This "testimony" supported the witnesses' explanation for their delay in reporting the defendant's alleged confessions and thereby supported their credibility by introduction of facts outside of the record. If the prosecution wished to put in evidence that Indians fear AIM, the vehicle was properly to present evidence to that effect. To himself "testify" as to the "madmen" and "butchers" that comprise the American Indian Movement is to deny the defendant his right to confront and cross-examine "witnesses". The prosecutor stepped far outside his proper role as a quasi-judicial officer and an advocate to give the jury highly inflammatory "information".

It is instructive to look to prior cases wherein a prosecutor's misconduct was so prejudicial as to warrant a reversal. The prosecutor's argument here is every bit as flagrant and ill intentioned as the comments made in State v. Reed, supra; State v. Charlton, supra; and State v. Claflin, supra. In Reed, the prosecutor called the defendant a liar, stated defense counsel didn't have a case, referred to the defendant as clearly a "murder two", and asked the jury if they were going to let city lawyers make their decision. This court reversed the conviction in Reed because there existed a "substantial likelihood" the remarks affected the jury's decision. Reed, at 147-48. The Reed misconduct was mild compared to the prosecutor's arguments in this case. In Charlton, the prosecutor remarked briefly on the defendant's spouse's failure to testify. This court held such reference to be flagrant and ill intentioned and reversed the conviction in spite of a failure to request a curative instruction. In Claflin, the prosecutor read a poem by a rape victim and the conviction was reversed because no curative instruction could erase such an appeal to passion and prejudice. We likewise find that the prejudice engendered by the prosecutor's arguments regarding the American Indian Movement mandates a retrial.

This case also raises the issue of whether the prosecutor's comments on defendant's post-arrest silence violated due process. The Court of Appeals held that the prosecutor's references to defendant's silence were proper.

In closing argument the prosecutor remarked on defendant's initial silence upon arrest:

Next item. Schmidt — doesn't say anything to Schmidt. Christiensen, the border patrol, doesn't say anything to him. Barriball, again doesn't talk to him except to ask what jail he is going to. This guy who was getting framed, don't you think — I would go, "But wait, I got to tell you guys something." He doesn't say anything. He's getting his chance but wait — Stokes in the area, Huntoon in the area, Kurhenrewther in the area, no talking. I ask you— who is beginning to have some doubts about Gary [Bel-garde]?

(Italics ours. The named individuals are police officers.) Again in rebuttal the prosecutor highlighted Belgarde's failure to tell police his trial defense:

Why doesn't [defense counsel] talk about his client? . . . Oh, yeah, they get a doctor here who heard the story some three weeks ago. If you got a story and you are innocent, you tell the cops. You don't tell some doctor.

(Italics ours.) Belgarde contends these comments penalized his exercise of the right to remain silent and denied him due process. We agree.

It is settled that the State may not, consistent with due process, use post-arrest silence following Miranda warnings to impeach a defendant's testimony at trial. Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976). State v. Evans, 96 Wn.2d 1, 633 P.2d 83 (1981) stated at page 3:

[T]he use, for impeachment purposes, of defendant's silence following receipt of Miranda warnings is fundamentally unfair and therefore violates the due process clause of the Fourteenth Amendment since the giving of the warnings implicitly assures defendant that silence will carry no penalty.

Silence in the wake of such warnings is "insolubly ambiguous" and may merely reflect reliance on the right to remain silent rather than a fabricated trial defense. Doyle, at 617. Further, Miranda warnings impliedly assure that a defendant's silence will not be used against him at trial. Doyle, at 618.

However, once a defendant waives the right to remain silent and makes a statement to police, the prosecution may use such a statement to impeach the defendant's inconsistent trial testimony. This exception to the rule in Doyle v. Ohio, supra, was set forth in Anderson v. Charles, 447 U.S. 404, 65 L. Ed. 2d 222, 100 S. Ct. 2180 (1980). Accord, State v. Seeley, 43 Wn. App. 711, 719 P.2d 168, review denied, 107 Wn.2d 1005 (1986); State v. Hatley, 41 Wn. App. 789, 801, 706 P.2d 1083, review denied, 104 Wn.2d 1024 (1985); State v. Cosden, 18 Wn. App. 213, 568 P.2d 802 (1977), review denied, 89 Wn.2d 1016, cert. denied, 439 U.S. 823 (1978). In particular, the State may question a defendant's failure to incorporate the events related at trial into the statement given police or it may challenge inconsistent assertions. Such was the situation in Cosden where the defendant had not remained silent, but had uttered a denial in one form and on trial asserted a different excuse. This "partial silence" at the time of the initial statement is not insolubly ambiguous, but "strongly suggests a fabricated defense and the silence properly impeaches the later defense." Cosden, at 221. Such questioning does not violate due process as the defendant has waived the right to remain silent concerning the subject matter of his statement. Anderson, at 408.

We do not find the prosecutor's comments were proper under Anderson and Cosden. In both cases, the State was allowed to question the defendant's partial silence at the time he made a statement to police, after having waived the right to remain silent, in order to impeach the defendant's inconsistent trial testimony. In the instant case, the prosecutor focused not on any prior inconsistent statements made by the defendant, but on his failure to make a statement immediately upon arrest. Although the prosecutor commented on Belgarde's prior inconsistent statement in other portions of closing argument, the challenged remarks specifically refer to the officers present when Belgarde was first apprehended. The prosecution's remarks which focused on the defendant's exercise of his right to remain silent falls directly under the Doyle rule which forbids using such silence to imply guilt. We therefore disagree with the Court of Appeals and find that such comments on post-arrest silence violate due process. However, in light of the fact that the prosecutor's arguments regarding AIM require reversal, it is unnecessary to determine whether the comments on post-arrest silence constitute harmless or prejudicial error. We assume this error will not be repeated.

The convictions are therefore vacated and remanded.

Utter, Brachtenbach, Dolliver, and Goodloe, JJ., and Petrie, J. Pro Tern., concur.

Andersen, J., concurs in the result.

1 The State is represented by different counsel on appeal.