State v. Nelson

*286 Hill, J.

(concurring)—I concur in the result of the majority opinion.

Upon the prior appeal of this case (State v. Nelson, 65 Wn.2d 189 , 396 P.2d 540 (1964) ), this court stated that the trial court did not err in permitting Patrick to be called as a witness by the state even though it was known that Patrick would invoke the Fifth Amendment. It was noted that there were questions which Patrick could have been required to answer without incriminating himself, and that the Fifth Amendment was not a blanket which precludes all questioning, but is rather a privilege which must be claimed.

This is still the law. However, upon retrial of the case, the state made the shield of protection granted by the Fifth Amendment to the witness a weapon for getting its case before the jury by means of impermissible inferences. The use of such a prejudicial trial tactic amounts to reversible error. I, therefore, concur in the granting of a new trial.

However, I want to make it clear that I am, by my concurrence, not committing myself to the same conclusion under the same circumstances should this case again reach this court. The first trial was in 1963; the second trial (and this appeal is from the judgment and sentence in that trial) was in 1965. Patrick’s refusal to testify at both of these trials was justified by the possibility of his prosecution for the burglary or robbery during which the fatal shooting of Dan Damitio occurred on February 2, 1963. He pled guilty to the murder of Damitio (second degree) and is presently serving a term at the penitentiary for that offense; certainly any other offense in which he may have been particeps criminis on February 2, 1963, is now barred by the 3-year statute of limitations (RCW 10.01.020). He no longer has any need of the protection of the Fifth Amendment.

The state, on another trial, would have no reason to believe that Patrick would invoke the Fifth Amendment. A witness cannot invoke the Fifth Amendment merely to protect another from punishment. Marcus v. United States, 310 *287 F.2d 143 (1962); Rogers v. United States, 340 U.S. 367 , 95 L. Ed. 344 , 71 Sup. Ct. 438, 19 A.L.R.2d 378 (1951).

The admonition given by the court in United States v. Tucker, 267 F.2d 212, 215 (1959) (quoted in the majority opinion) on how to interrogate the witness on a third trial in that case, has no application to a third trial of the present case.