State v. Belgarde

• Decision Date: 31 December 1986
• Docket Number: No. 15779-5-I,15779-5-I
• Citation: 46 Wn.App. 441,730 P.2d 746
• Parties: STATE of Washington, Respondent, v. Kermit A. BELGARDE, aka Gary Thorsen, aka Red Eagle, Appellant.
• Court: Washington Court of Appeals

Page 441

46 Wn.App. 441

730 P.2d 746

STATE of Washington, Respondent, v. Kermit A. BELGARDE, aka Gary Thorsen, aka Red Eagle, Appellant.

No. 15779-5-I.

Court of Appeals of Washington Division 1.

Dec. 31, 1986.

Mark W. Muenster, Washington Appellate Defender, Seattle, for Kermit Arthur Belgarde

C. Thomas Moser, Skagit County Pros. Atty., Skagit County Courthouse, John W. Murphy, Welts & Welts, Mt. Vernon, for State of Wash.

WEBSTER, Judge.

Kermit A. Belgarde, also known as Gary Thorsen, appeals from his convictions of first degree murder and attempted first degree murder. Belgarde contends that the trial court erred by (1) denying his motion for a mistrial based on prosecutorial references to post-arrest silence, (2) denying his motion for a change of venue, and (3) denying his motion for sequestration of the jury. He also contends that prosecutorial conduct during closing arguments deprived him of a fair trial. We find that Belgarde received a fair trial, and therefore affirm his conviction.

FACTS

On the evening of March 22, 1984, Kermit Belgarde, Joe Williams, and Williams' seventh-grade nephew Sam visited the home of James Pape and Pape's girlfriend, Joanne Nunn. The home is located in Hamilton, Skagit County. Sam was not a welcome visitor in Pape and Nunn's home and upon entering they ordered him to leave. Sam left to wait outside, but his departure led to an argument among Five witnesses testified that on the evening of the altercation, Belgarde told them that he had shot a couple of people. Three of the witnesses talked with police the next day; the other two, Jane and John Doe, ¹ did not tell police about the confession until April 9. The latter two testified that they waited to report the confession because of fear of Belgarde's threats to use AIM (American Indian Movement). One of them claimed that Belgarde was talking about "how they [AIM] get revenge on people that tell and snitch." At trial, Belgarde admitted that he was a member of AIM.

                the four adults.   The argument ended when Pape and Nunn were each shot.   Nunn died instantly;  Pape survived.   Pape and Williams testified that Belgarde did the shooting.   Belgarde, on the other hand, testified that Williams shot the couple.   Young Sam claimed he saw Belgarde leave the house, get a rifle and then reenter the house.   Sam testified that he heard two shots and saw his uncle and Belgarde, still holding the rifle, reemerge from the house.   Belgarde told Sam to say nothing to the police
                

Police apprehended Belgarde in Whatcom County on March 24. Ray 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: Belgarde had been in Whatcom County looking for a job on the day of the shooting. He knew Joe Williams, but had not seen him for a few weeks. He knew neither Pape nor Nunn, and had not shot them.

The description of events Belgarde gave at trial differed markedly from the one given to Panzero. At trial, Belgarde admitted meeting Pape a month before the shooting. He described being at Nunn and Pape's house on March 22, and watching as Williams fired a rifle twice. At that time, Belgarde knew Pape had been shot, but did not know that Nunn had also been shot. He admitted speaking with the witnesses who claimed to have heard his confessions on the Ultimately, Belgarde was convicted as charged. By special verdicts, the jury found that Belgarde was armed with a deadly weapon (a firearm) at the time he committed the crimes. This appeal timely followed.

                night of the incident, but at trial attempted to show they were lying to protect Joe Williams.   Each witness was in some manner related to Williams:  Claiming to have heard confessions were Williams' niece and her husband;  Williams' nephew;  and Williams' sister and her husband
                

POST-ARREST SILENCE

In his closing arguments, the prosecutor pointed out that Belgarde said nothing to the officers who arrested him about seeing the shooting or being "framed":

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.

(Persons referred to are the arresting officers.) In rebuttal, the prosecutor again mentioned that Belgarde did not try to tell police that he had seen Williams shoot Pape and Nunn:

[T]hey 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.

Defense counsel did not object to the prosecutor's remarks during argument, but at the end of trial moved for a mistrial on the basis of these comments. The court denied the motion. On appeal, Belgarde contends the prosecutor's arguments penalized his right to remain silent.

An unequivocal post-arrest post-Miranda exercise of the right to remain silent may not be used to impeach a defendant's testimony at trial. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Because "every post-arrest silence is insolubly ambiguous", calling attention to a In State v. Cosden, supra, this court concluded that prosecutorial comment on post-Miranda silence is permissible when defendant's defense-related statement to police is "wholly inconsistent with the [defense] interposed at trial", Cosden, at 220, 568 P.2d 802. The defendant in Cosden was arrested on rape charges. After Miranda warnings, he told police he had not been with any women on the night in question, and then exercised his right to remain silent. At trial, however, he admitted being with the complaining witness, but claimed the defense of seduction and psychological impotence. At trial, the prosecutor examined a deputy sheriff concerning defendant's silence and commented on defendant's silence in closing argument. This court held both the questioning and closing comments to be proper:

                person's silence after arrest violates due process.   Doyle, 426 U.S. at 617-18, 96 S.Ct. at 2244-45.   However, Doyle does not apply to prosecutorial inquiry into inconsistent post-Miranda statements.   Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 65 L.Ed.2d 222, rehearing denied, 448 U.S. 912, 101 S.Ct. 27, 65 L.Ed.2d 1173 (1980).   A defendant who makes post-Miranda statements has not remained silent as to the subject matter of the statements.   Id.  The prosecutor may therefore seek to elicit an explanation for a prior inconsistent statement, though he may not ask the jury to draw meaning from mere silence.   Id.  Likewise, in the context of pointing out the contradictions between post-arrest and trial statements, the prosecutor may show or comment upon the defendant's failure to relate to police crucial exculpatory statements recited by the defendant at trial.   Id.;  State v. Seeley, 43 Wash.App. 711, 719 P.2d 168 (1986);   State v. Cosden, 18 Wash.App. 213, 568 P.2d 802 (1977), review den'd, 89 Wash.2d 1016 (1978), cert. den'd, 439 U.S. 823, 99 S.Ct. 90, 58 L.Ed.2d 115 (1978)
                

[T]he fact of his failing to relate the defense of seduction and psychological impotence to the police is not insolubly ambiguous where he later asserts that defense at trial. Under those circumstances his partial silence strongly Cosden, at 220-21, 568 P.2d 802.

suggests a fabricated defense and the silence properly impeaches the later defense.

Belgarde contends that the prosecutor's argument was not directed at any inconsistency, but at Belgarde's failure to make an immediate statement. See People v. Adams, 102 Ill.App.3d 1129, 58 Ill.Dec. 325, 430 N.E.2d 267 (1981) (prosecutor's suggestion to jury that if defendant were innocent she would have informed the officers immediately after her arrest held improper). In support of his argument, Belgarde cites a pre-Anderson v. Charles case-- State v. Fricks, 91 Wash.2d 391, 588 P.2d 1328 (1979)--as controlling. In Fricks, the defendant was silent on arrest, but later signed a written confession. The next day he repudiated the confession, saying he had signed it to remove suspicion from a friend. The Supreme Court held the prosecutor's implication that defendant's silence was consistent with guilt but inconsistent with the exculpating story given at trial to be improper.

Belgarde's reliance on Fricks is tenuous. The Fricks defendant did not give two inconsistent exculpatory statements; he initially confessed to the crime. Where inconsistent exculpating stories are given, partial silence and failure to incorporate the defense set forth at trial into the initial statement are indicative of recent fabrication. Mention of those factors, therefore, does not violate due process. Anderson v. Charles, supra; State v. Seeley, supra; State v. Cosden, supra.

The portions of the prosecutor's closing arguments cited by Belgarde are proper under Cosden. They do not point out that Belgarde waited any appreciable length of time after arrest before asserting his alibi. Rather, they point out that, given the statements he made at trial, Belgarde's partial silence at the time of arrest indicates a recently fabricated defense.

PROSECUTORIAL REFERENCES TO "AIM"

Witnesses who claimed to have heard Belgarde's 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...