State v. Belgarde

• Decision Date: 03 September 1991
• Docket Number: No. 23972-4-1,23972-4-1
• Citation: 815 P.2d 812,62 Wn.App. 684
• Parties: STATE of Washington, Respondent, v. Kermit A. BELGARDE, a/k/a Gary Thorsen, Appellant.
• Court: Washington Court of Appeals

Page 684

62 Wn.App. 684

815 P.2d 812

STATE of Washington, Respondent, v. Kermit A. BELGARDE, a/k/a Gary Thorsen, Appellant.

No. 23972-4-1.

Court of Appeals of Washington Division 1.

Sept. 3, 1991.

Robert Gombiner, Nance, Iaria & Gombiner, Seattle, for appellant.

K. Garl Long, Deputy Pros. Atty., Mount Vernon, for respondent.

PEKELIS, Judge.

Kermit Belgarde, also known as Gary Thorsen, challenges his convictions for first degree murder and attempted first degree murder, contending that the trial court erred in (1) denying his affidavit for a change of judge, (2) allowing defense counsel to testify at trial without requiring him to withdraw from the case, and (3) admitting the hearsay testimony of a police officer which refuted Belgarde's alibi statements. Belgarde also contends that the trial judge pro tempore lacked jurisdiction to hear the case. We affirm.

I

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. Bright was asked to and did leave the house, but an argument ensued among the four adults which culminated in the shooting of Pape and Nunn. Nunn died instantly; Pape survived. Belgarde was subsequently arrested, tried, and convicted in 1984 of first degree murder and attempted first degree murder. In 1988, the Supreme Court reversed Belgarde's conviction and remanded for a new trial, holding that prosecutorial conduct during closing arguments deprived him of a fair trial. State v. Belgarde, 110 Wash.2d 504, 755 P.2d 174 (1988) (reversing State v. Belgarde, 46 Wash.App. 441, 730 P.2d 746 (1987)).

Upon remand to the superior court for retrial, the case was assigned to Judge Walter J. Deierlein, Jr., who had presided over the first trial. On July 8, 1988, Belgarde appeared before the judge with an attorney from the public defender's office and requested the appointment of new counsel. The attorney explained that a conflict existed which prevented his office from representing Belgarde. Prior to withdrawing, however, the attorney filed an affidavit for a change of judge pursuant to RCW 4.12.050. Judge Deierlein denied the affidavit because he had made discretionary rulings in the preceding trial. The attorney replied that he would "prepare a further motion for recusal in this matter for the Court to rule on."

On July 27, 1988, Belgarde appeared again before Judge Deierlein this time represented by new counsel. The judge first briefed the attorney on the procedural history of the case, noting that while Belgarde's affidavit of prejudice had been denied, a motion for recusal could still be filed. The judge then turned to the issue of scheduling a date for trial. When Belgarde requested that trial be set for February or March, 1989, the judge commented that he would be retiring on January 8, 1989, and wondered if these dates would be convenient for his successor. However, after further discussion, trial was set for February 6, 1989.

Judge Deierlein retired as planned. Nonetheless, he presided over Belgarde's February retrial. There is no evidence of any written stipulation between the parties agreeing to the appointment of a judge pro tempore nor any objection to having the retired judge continue to hear the case.

Part way through the retrial, a mistrial was declared. After granting a change of venue, Judge Deierlein presided over the second trial, which commenced in March, 1989. Belgarde's defense was that Williams shot the couple. Pape and Williams testified that Belgarde did the shooting. Sam Bright, who was outside, testified that he saw Belgarde come out of the house, get a rifle, and fire two shots from the front steps.

Five witnesses also testified that on the evening of the altercation, Belgarde told them he had shot a couple of people. Three of the witnesses talked with police the next day; the other two did not tell the police about the confession until several weeks later, claiming they were afraid of Belgarde's threat to use AIM (American Indian Movement) against them.

Police apprehended Belgarde in Whatcom County on March 24, 1988. Ron Panzero, Chief Deputy of the Skagit County Sheriff's Department, spoke with Belgarde after the capture. Panzero testified that Belgarde gave him the following alibi: On the night before the shooting he had been in Bellingham where he spoke with a security guard on the docks about a job. On the next day, Thursday, he had been in Mount Vernon where he talked to Don Hanson. On Friday, he went to Sedro Woolley where he met Carole Whipple. Belgarde also told Panzero that he knew Joe Williams, but had not seen him for at least 3 weeks. He knew neither Pape nor Nunn, and had not shot them.

After speaking with Belgarde, Chief Deputy Panzero asked Detective Chris Andersen to follow up on Belgarde's alibi. As Andersen began to testify about what he found, defense counsel objected to anything Andersen discovered from his conversation with the Whipples on hearsay grounds. The court overruled the objection, but limited Andersen's testimony to whether Belgarde's statements were "supported or not supported, confirmed or denied." Thereafter, Andersen testified that "parts of Belgarde's statements were true about where he had been; however, the times were not the same." He went on to explain that, for example, Belgarde had visited the Whipples on Thursday, not Friday. Andersen also testified without objection that he was unable to find anyone at the Bellingham security office who had spoken with Belgarde.

Wayne White, Chief of Police in Concrete, testified that he was contacted at the police station by Joe Williams after the shooting. Williams told White that "Gary had done the shooting." Williams described Gary as a Cuban or Mexican he picked up hitchhiking in Sedro Woolley and that they went to Pape's home where an argument ensued and a shot was fired.

Near the conclusion of trial, defense counsel asked for permission to take the witness stand himself in order to testify that during an interview on February 6, 1989, Williams admitted making up the hitchhiker story so Belgarde would get caught. ¹ When the trial court asked Belgarde whether he understood that his attorney's credibility could be attacked on cross examination, Belgarde replied, "Well, I'll agree to let him testify ... Yes." Accordingly, the court granted the request.

On cross examination, defense counsel admitted that Williams' statement was made after Williams had indicated his fear of Belgarde, that he had expended a great deal of time in preparing for the case and that he was being paid to represent Belgarde.

On March 16, 1989, Belgarde was found guilty by a jury on both charges. He appeals.

II

Belgarde first contends that the trial court erred in denying his affidavit of prejudice. He argues that because a new trial following a reversal on appeal is a separate case, he was entitled to an affidavit against the original trial judge. The State asserts that, because the affidavit was untimely, it was properly denied. ²

Under RCW 4.12.040 and .050, a party has the right to disqualify a trial judge without demonstrating actual prejudice, if the statutory requirements of RCW 4.12.050 are met. Harbor Enters. v. Gudjonsson, 116 Wash.2d 283, 285, 803 P.2d 798 (1991); Marine Power & Equip. Co. v. Department of Transp., 102 Wash.2d 457, 459, 687 P.2d 202 (1984). These requirements include the following:

Provided, That such motion and affidavit is filed and called to the attention of the judge before he shall have made any ruling whatsoever in the case, ... and before the judge presiding has made any order or ruling involving discretion ...

(Emphasis added.) RCW 4.12.050. Here, Belgarde filed his affidavit at his first appearance before the trial court following remand. Consequently, the issue is whether the phrase "in the case" includes rulings made during Belgarde's first trial.

In support of his contention, Belgarde relies on State v. Sullivan, 486 S.W.2d 474 (Mo.1972). In Sullivan, the defendant filed his affidavit 23 days prior to the commencement of his third trial, but after the same judge had presided at two previous trials, one of which followed the reversal of his conviction on appeal. The Missouri rule then in effect allowed a party to disqualify a judge upon the filing of an affidavit "not less than five days before the day the case has been set for trial". (Emphasis added.) Sullivan, 486 S.W.2d at 476. On appeal, the court stated that "[t]he rule seems quite clear that, regardless of the number of times the case is tried, the defendant is entitled to one disqualification of the trial judge upon the timely filing of his affidavit of prejudice." Sullivan, 486 S.W.2d at 476.

Here, Belgarde urges this court to adopt the reasoning in Sullivan and hold that he is entitled to an affidavit against the original trial judge on remand. We decline to do so. First, the overall language of the rule cited in Sullivan differs substantially from that of RCW 4.12.050. The wording of the Missouri rule makes it plain that there "case" is being used synonymously with "trial." This does not help us in deciding what our Legislature meant in the wording of our statute. Moreover, we agree with the thoughtful analysis of RCW 4.12.050 contained in a recent decision of this court, State v. Clemons, 56 Wash.App. 57, 782 P.2d 219 (1989), review denied, 114 Wash.2d 1005, 788 P.2d 1079 (1990).

In Clemons, the court held that a defendant was not entitled to file an affidavit of prejudice against the original trial judge on retrial after a mistrial had been declared. Writing for the panel, Judge Forrest first observed that RCW 4.12.050 uses the more inclusive word "case" rather than "trial". He then reasoned that a retrial was not a "new proceeding" for purposes of RCW 4.12.050 because it did not present "new issues arising out of new facts occurring since the trial." Clemons, 56 Wash.App. at 60, 782 P.2d 219 (ci...