State v. Nelson

¶1(dissenting)—I dissent. Does the law view with such delicacy the sensibilities of a convicted murderer that the prosecuting attorney is forbidden even to examine him as a witness when he believes that the witness, although intending to claim the Fifth Amendment, may give vital evidence? If so, the criminal, in the eyes of the law, now occupies a status superior to that of the millions of hardworking, honest, respectable people who support and sustain this democracy and maintain its courts. The majority grants a new trial, it seems to me, for reasons which, if carried into the mainstream of criminal law, will effectively weaken the administration of justice.

¶2The majority opinion seems to be based on the idea that two things, appearing together, warrant a new trial: (1) a weak case against the defendant, concurring with (2) a persistently inflammatory examination of a witness who had indicated his intent under the Fifth Amendment to refuse answering.

¶3In my view, however, the case against Nelson was (1) not weak but strong indeed, and based on clear proof of cogent circumstances showing his guilt, and (2) the prosecuting attorney not only committed no error in examining Patrick but, further, had a sworn duty under the law to put to Patrick the very questions upon which the new trial has been granted.

¶4Besides the evidence delineated in the majority opinion, we have photographs showing a heavy chunk of wood lying on a davenport in the living room in such a position as to indicate it had been pitched through the front room window from the outside. To do so, someone had to be standing *288within the enclosed area of the front porch. The pictures also illustrate copious blood stains on and near the front door and door sill, indicating the door to have been touched during the evening by one who was bleeding heavily. These facts, coincident with the massive wound on the victim’s forearm and elbow, clearly are compatible with the state’s theory of the case, and enable a jury finding that Damitio had been shot at close range by a missile from a high velocity weapon, while standing either on the front porch or within view of the window. That the investigating officers found no empty rifle shell casing at the scene does not prove that none was fired, but rather that no casing was ejected from the weapon’s chamber—a strong likelihood in the prosecutor’s mind from statements made by Patrick prior to Nelson’s first trial.

¶5Thus, even before we come to the testimony of Alberta Burns, we have strong proof of circumstances showing that Damitio was murdered. Alberta Burns’ testimony, corroborated as it was in some degree by Patrick, despite his refusal to answer 28 questions, made a strong case for the jury that Nelson participated in the crime. Although we ruled Patrick’s oral confession inadmissible against Nelson in the first trial (State v. Nelson, 65 Wn.2d 189, 396 P.2d 540 (1964)), nevertheless, the prosecuting attorney was entitled to use this information when developing his theory of a murder—a homicide committed by means of a rifle. Accordingly, the state called Richard Simmons, an expert in firearms. Mr. Simmons’ competence to testify as an expert is not in doubt here for the qualifications of an expert are primarily for the trial court (State v. Kennedy, 19 Wn.2d 152, 142 P.2d 247 (1943) ), and a qualified expert may express an opinion on an ultimate fact. State v. Hedin, 67 Wn.2d 542, 408 P.2d 245 (1965).

¶6Relating his testimony to several pictures of the deceased, pictures showing a massive wound almost explosive in appearance, Mr. Simmons expressed an expert’s opinion that the wound had been produced by a much higher velocity bullet than one fired from a .38 caliber pistol.

¶7*289Mr. Simmons testified that a .38 caliber pistol such as Damitio’s could not in one shot produce the massive explosive-type damage which Damitio had received in his left arm and from which he died, for the pictures enabled the firearms expert to conclude that the wound had been caused by some sort of explosive contact. His testimony could well have been accepted by the jury as compatible with the other evidence as to the cause of Mr. Damitio’s death. Medical evidence established that the major structures of the left forearm were literally torn apart or shattered, or, as the coroner, a medical doctor, described the wounds, “frightfully disrupted.” The doctor also attributed the fatal wounds to a high velocity missile. X rays showed several metal fragments still in the arm after the doctor had removed some.

¶8Mr. Simmons said that a rifle fired within a range of 4 feet of the object has an explosive effect from the gases following the bullet as well as from the projectile itself. He testified that a .38 caliber pistol would not produce this explosive effect even at close range. From this and other evidence, the jury could well have concluded that Damitio died from a rifle bullet fired at a range of less than 4 feet.

¶9Next we look at the evidence concerning Nelson’s participation. Two men, Nelson and Patrick, -arrived simultaneously at the hospital at about 10 p.m., both suffering from gunshot wounds. Their wounds -are entirely compatible in time and distance with the gunfight at the Damitio residence.

¶10Other skeins of evidence deriving from their arrival at the hospital corroborated the prosecution’s theory of their joint participation. Mr. Weaver Berkman of the Aberdeen police department testified that, in response to a telephone call received at the police station, he went immediately to St. Joseph’s Hospital in Aberdeen where he met two deputies from the sheriff’s office and the three saw Nelson in the emergency room. He heard one of the deputies ask Nelson what had happened and Nelson replied that he was shot. The officer asked where the shooting occurred, to which *290Nelson merely said, “in the county.” Then the officer inquired whom Nelson had been with and received the answer, “Patrick.” The jury could take note of Nelson’s failure to divulge anything further about his gunshot wound—a wound which sent him to the hospital on a rainy winter night in the company of another individual (Patrick) also suffering from a gunshot wound. These remarks, standing alone, provided prima facie proof that Patrick and Nelson had been together somewhere in the county when they had been wounded. Nelson’s enigmatic brevity in failing to give further explanation when the circumstances reasonably called for it could also have been considered by the jury in weighing all of the evidence in the case.

¶11Thus, we have not only a persuasive case that Dan Damitio died from a rifle bullet and not his own .38 caliber pistol, but evidence connecting Nelson with the killing. The testimony of Alberta Burns, as I have suggested, when added to the evidence already delineated, makes out a strong case against Nelson. She described in detail how Nelson, Patrick and she had met earlier in the day, driven to Nelson’s cabin on the lake, procured the second of two rifles, later purchased two pairs of nylon stockings at Montesano, demonstrated how they would be used as a mask, drove in the dark of night to Damitio’s house, stopped the car with instructions for her to leave the motor running and drive away temporarily if any cars came by, and Patrick’s and Nelson’s return to the car, both wounded. She testified that she had to drive the last part of the trip to the hospital and that when they got there she heard Patrick call the police on the telephone. This telephone call dovetailed with that received by Officer Berkman at the Aberdeen police station. (See abstract of testimony of Alberta Burns, Appendix A.)

¶12The testimony of Alberta Burns standing alone, in my opinion, when added to proof of the corpus delicti, gave the jury a sufficient basis for finding Nelson guilty, and, when considered in conjunction with all of the other evidence, made out a strong case against him. She did not testify *291affirmatively that, when the men got out of the car leaving her with instructions to keep the motor running, she saw either of them take one of the rifles with him, but a reasonable inference to be drawn by the jury from her testimony on this point is that, due to the rain and darkness, she did not see a rifle, not that the men were without a rifle.

¶13I would next consider the reasons for calling Patrick as a witness for the state. Patrick, according to the testimony of A. M. Gallagher, Grays Harbor County Undersheriff, in the first trial of this information (State v. Nelson, 65 Wn.2d 189, 396 P.2d 540 (1964) ), had made a detailed oral statement describing how he and Nelson shot Damitio. From these statements, corroborated as they were by other evidence, had come the prosecution’s belief that Patrick and Nelson had gone to their victim’s residence planning not to force an armed entry but rather to lure Damitio to the door and knock him unconscious with a blow from their gun when he stepped out; that they had alerted Damitio, apparently when they had walked around his house looking for the telephone line to disconnect or in examining the basement to see if the house had a basement entrance which could be used either as a means of access for them or escape for Damitio; and that Damitio had shot them, being wounded by them with the rifle in return.

¶14Understandably, the state hoped to prove these very things through Patrick’s testimony at the second Nelson trial since Patrick had, by then, pleaded guilty to and been sentenced for the murder of Damitio and, from the state’s point of view, had no legitimate reason to withhold evidence.

¶15Nelson bases his claims of error largely on the direct examination of witness John Patrick, who, prior to taking the stand, had said that he would claim immunity from testifying under the fifth amendment to the United States Constitution. That Patrick’s claimed fears of self-incrimination were spurious and illusory and asserted only to help his alleged accomplice is apparent from the fact that he had already pled guilty to and had been sentenced for the sec*292ond-degree murder of Dan Damitio and was actually serving the sentence. The likelihood that the prosecuting attorney might charge him with robbery or burglary arising out of the same events is so remote as to warrant no credence. At any rate, the time to face such a contingency arises not now, but if and when such charges are filed. Hutcheson v. United States, 369 U.S. 599, 8 L. Ed. 2d 137, 82 Sup. Ct. 1005 (1962).

¶16The danger of incrimination, to support a claim of immunity under the Fifth Amendment, must be genuine and real. When Patrick pleaded guilty to the killing of Dan Damitio and a judgment had been entered upon the plea and he began the service of his sentence in the penitentiary for second-degree murder, in my opinion, his attorney could well have advised him that he incurred no real risk of further prosecution for lesser offenses involved in the murder if he told the truth. The possibility that he would be brought back from the penitentiary to face a charge of burglary or robbery arising out of the events in which he admitted killing Damitio were so remote as to be completely illusory. See State v. Satterlee, 58 Wn.2d 92, 361 P.2d 168 (1961).

¶17On this point, I would accept the rationale of Hutcheson v. United States, supra,that the legitimate purposes of a judicial inquiry ought not be thwarted by the possible occurrence of a remote and unlikely event. Time enough to consider the harm should the unlikely event occur. The Supreme Court, in that case, upheld a conviction of contempt for refusal to testify before a select committee of the United States Senate convened to investigate criminality in labor-management relations. The court rejected defendant’s right to refuse—a refusal claimed by him under a denial of due process of law rather than the Fifth Amendment for the reason that the witness was under indictment in a state court charging corrupt practices, and both his testimony and refusal before the Senate committee under a claim of immunity of the Fifth Amendment would be admissible against him in the state court.

¶18*293Answering his claim to immunity from testifying under the due process clause, the court said in Hutcheson, at 612:

The appropriate time for that, had the petitioner in this instance claimed the privilege before the Committee, would have been upon review of his state conviction, when we would have known exactly what use, if any, the State had made of the federal claim. To thwart the exercise of legitimate congressional power, on the basis of conjecture that a State may later abuse an individual’s reliance upon federally assured rights, would require of us a constitutional adjudication contrary to well-established principles of ripeness and justiciability.

¶19In the instant case, no charges of burglary or robbery had been filed in any form against the witness Patrick. Had the trial court deemed Patrick’s fears of self-incrimination illusory and frivolous and ordered him to give evidence, I would say as the Supreme Court said in Hutcheson, supra, at 613, that

such a challenge should not be dealt with at this juncture. The proper time for its consideration would be on review of the state conviction.

¶20But—to meet the issue head on—even if we assume Patrick’s fears of prosecution for burglary or robbery arising out of the events in which Damitio was killed were well founded, I see no reversible error in the examination.2 Conceding, arguendo, that Patrick had a genuine claim of immunity under the Fifth Amendment, I do not see error in the court’s allowing his direct examination and requiring him to assert the claim as to the specific questions put to him.

¶21The majority opinion, I would say, either brushes over lightly or ignores a basic duty of the prosecuting attorney to present all material, competent and relevant evidence in his possession (Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d *294215, 83 Sup. Ct. 1194 (1963); Marshall v. United States, 355 F.2d 999 (9th Cir. 1966) ), and overlooks the principle that the unexplained failure to call to the stand a witness to a crime or one who has relevant knowledge of it may raise a presumption that the evidence would have been unfavorable to the state. State v. La Porte, 58 Wn.2d 816, 365 P.2d 24 (1961); State v. Baker, 56 Wn.2d 846, 355 P.2d 806 (1960). Believing Patrick to be an eyewitness to as well as a participant in the crime, and knowing him to be available, the prosecution had to call him or risk the inference that, because he was not called, his testimony would have been favorable to the defense and unfavorable to the state.

¶22This brings us to the precise question in issue.

¶23With Patrick in court available as a witness, was it error to put him on the stand before a jury on direct examination despite his pretrial statement that he would claim immunity from testifying under the fifth amendment to the Constitution of the United States?

¶24Patrick, as has been noted, had already pled guilty to the murder of Dan Damitio and, except for the defendant, knew more about Nelson’s guilt or innocence than any man alive. Assuming that Patrick may have had a right to claim the Fifth Amendment for himself, the claim of error arises not from Patrick but from the defendant who' postulates error on Patrick’s claim of immunity, not his own. The error, if any then, as to Nelson, becomes evidentiary, not constitutional. See Namet v. United States, 373 U.S. 179, 10 L. Ed. 2d 278, 83 Sup. Ct. 1151 (1963).

¶25The Fifth Amendment is a shield designed to protect the witness, not others. It is a right personal to the witness and cannot be claimed by others. 58 Am. Jur. Witnesses § 49. For this reason, the witness must be sworn and must wait until the question has been propounded before he may claim his immunity from answering. Merely putting the question does not render the question improper, for it is the witness’s privilege to answer it if he chooses. 58 Am. Jur. Witnesses § 53. Indeed, that is precisely what happened here; Patrick did answer several questions which gave *295material and relevant evidence to connect Nelson with the murder of Dan Damitio.

¶26The majority opinion implies that, because Patrick was obliged to claim his privilege before the jury, this constituted error in the trial of Nelson, citing United States v. Tucker, 267 F.2d 212 (3d Cir. 1959), and San Fratello v. United States, 340 F.2d 560 (5th Cir. 1965), or that it was error to have continued the examination once it “became apparent that the witness did in fact intend to claim his privilege.” Neither of these ascribed reasons warrants a new trial, in my opinion.

¶27In the first place, this being a jury trial, all relevant evidence should be presented in open court to a jury. Patrick was not on trial. The suggestion that the examination be held first in the jury’s absence came from Nelson’s attorney, not Patrick. In addition to the 28 questions which Patrick refused to answer were a number which he did elect to answer and in doing so gave (as will later be shown) material, relevant and competent evidence in support of the information. The jury, not the judge, had sole responsibility to measure and weigh his credibility and assess the truthfulness of his answers from his demeanor and appearance on the witness stand, and to relate his evidence to all of the other evidence in the case.

¶28Thus, the claim of error based on a failure to rehearse the testimony before the judge alone without the jury is one that can be based only on the trial court’s asserted abuse of discretion in not curtailing or limiting the examination. Direct examination in such circumstances, like cross-examination generally, is a matter resting in the sound discretion of the trial court. That the trial court’s discretion was soundly exercised may be seen in the several illuminating answers the witness gave, despite his repeated refusals to answer others. Consequently, I see no abuse of discretion in allowing the examination to proceed.

¶29The rule adopted by the majority would allow criminal conspirators and accomplices no longer on trial to dominate and control the procedure in criminal cases by blandly *296announcing before trial that they intend to answer n<? questions for the reason that the answers might tend to incriminate. It is a rule which will annul the court’s power to canvass each question and decide if the answer actually tends to incriminate the witness, and will deprive the prosecution of the very valuable evidence it may elicit before the jury from the questions which are in fact answered.

¶30Patrick’s refusals to answer under the Fifth Amendment, as we have seen, were interspersed with a number of answers supplying material and competent evidence. He testified that he was acquainted with Alberta Burns, and that he knew her father. This tended to corroborate in some degree Mrs. Burns’ testimony of a prior acquaintanceship between her father and Patrick and supported her statements that she saw on the backseat floor of Patrick’s car a rifle which 'she knew her father had given him. Patrick testified that he was driving a car on or about February 2nd; he stated that he did not own it but that it was registered to him. When asked who owned the car he had been driving that day, he answered, “Hoffman Motors.” He testified that the car was a Ford station wagon, 2-seated, and that the backseat folded down. He thus described the automobile which could have taken them to the Damitio house and from there to the hospital.

¶31Asked whether he drove the car anytime on February 2nd, he answered, “a lot of different places—all over Aberdeen,” but claimed the Fifth Amendment when asked if he drove it to Amanda Park that day. This testimony corroborated the evidence given by Mrs. Burns. It showed that Patrick not only was capable of driving an automobile, but had been driving it on the crucial day within easy automobile travel of the Damitio residence. Patrick’s testimony placed him in the area of ready accessibility to Damitio’s house and at a time corroborative of Alberta Burns’ testimony describing how the trio drove to Damitio’s house that night in Patrick’s car. It tends to bear out Mrs. Burns’ testimony that Patrick drove the car in which Nelson rode to the agreed place of the crime.

¶32*297To continue with Patrick’s testimony: When asked how long prior to February 2nd he had lived in Grays Harbor County, Patrick testified “Almost all my life,” thus supplying evidence from which the jury could infer his knowledge of the area, the back roads, and his easy ascertainment of where Damitio lived. Then, after claiming the Fifth Amendment immunity to several direct questions, the following examination occurred:

Q. Do you know a man by the name of Reinhart Henry Nelson? A. Yes. Q. How well do you know him? A. How long? I don’t remember. Q. When did you meet him? A. I don’t remember. Q. Did you know him prior to February 2, 1963? A. Yes. Q. You remember how long previous to that? A. No, I don’t. Q. How close friends were you, —casual acquaintances? A. Yes. Q. Ever visit back and forth? A. Occasionally.

¶33This evidence again supports Mrs. Burns’ testimony. It showed that Patrick and Nelson were not strangers to each other; that they knew each other well enough to visit back and forth occasionally—and thus could readily have met, planned the crime, and actually carried it out. Patrick, in the course of his examination, then was asked if ever he had owned a pistol and he answered, “No.” When asked if ever he had had a pistol in his car, he answered, “No.” Again, this corroborated in some degree the state’s proof that Damitio did not die from a pistol bullet. It corroborated the state’s proof that the assailants had not shot into the house with a pistol and that all of the pistol shots came from the inside of the house.

¶34After refusing to answer more questions under a claim of the Fifth Amendment, Patrick did answer several others:

Q. Do you know, —where did Reinhart Nelson live when you were visitng with him, back and forth? A. Amanda Park. Q. Pardon me? A. Amanda Park. Q. And what sort of a place did he live in? A. Lived in a house near a sawmill. Q. Is that near Lake Quinault? A. Yes. Q. About how far is that from Aberdeen? A. About fifty miles. Q. How far is it from Aberdeen to Elma, if you know? A. I don’t know. Q. How far is it from Aberdeen to Montesano, if you know? A. Eight miles.

¶35*298This latter testimony clearly corroborates the testimony of Alberta Burns as to where the three of them went to pick up the rifle and again supports inferences that Patrick had some knowledge of the county and its roads. It provides additional proof of his acquaintance with defendant Nelson and supplies specific evidence of a friendship between Patrick and Nelson.

¶36Allowing the direct examination of Patrick demonstrates the wisdom of the rule that the Fifth Amendment privilege is personal to the witness on the stand and is solely for his benefit (Rogers v. United States, 340 U.S. 367, 95 L. Ed. 344, 71 Sup. Ct. 438 (1951) ), and that this constitutional privilege vests in the witness alone and cannot be utilized by the defendant. State v. Dickens, 66 Wn.2d 58, 401 P.2d 321 (1965). Since the constitutional privilege belongs to the witness exclusively and cannot be asserted by an accused other than the witness, error in granting or denying the privilege cannot be asserted by a defendant unless he demonstrates that the mere propounding of the questions somehow constituted such a grievous error that the immunity ought to be deemed transferable from witness to defendant.

¶37Wigmore expresses this proposition as follows:

The privilege, except in the case of an accused in a criminal case . . ., is merely an option of refusal, not a prohibition of inquiry.

. . . Hence it follows that when an ordinary witness is on the stand and an incriminating fact, relevant to the issue, is desired to be proved through him, the question may be asked, and it is for him then to say, in terms which the court may reasonably be expected to understand to be a claim of privilege, that he will exercise the option given him by the law. It cannot be known beforehand whether he will plead the privilege .... Besides, to prevent the question would be to convert the option into a prohibition.

Accordingly, it is almost universally conceded that the question may be put to the witness on the stand. 8 Wig-more, Evidence § 2268 (McNaughton rev. 1961).

¶38Common sense, as well as the law, dictates that the privilege against self-incrimination is merely an option of re*299fusal and not a prohibition of inquiry, for if it were otherwise the confessed accomplice to or convicted conspirator in the most brutal and sadistic of crimes could prevent the state from subjecting him to even the mild embarrassment of claiming his immunity in open court by simply making known to the state’s attorney his disinclination to take the stand. Hence, the law recognizes no blanket claim of immunity from giving evidence, and the witness must, if he will assert it, claim his right to refuse as to each question asked. State v. James, 36 Wn.2d 882, 221 P.2d 482 (1950); Hutcheson v. United States, 369 U.S. 599, 8 L. Ed. 2d 137, 82 Sup. Ct. 1005 (1962). The majority opinion refers to Douglas v. Alabama, 380 U.S. 415, 13 L. Ed. 2d 934, 85 Sup. Ct. 1074 (1965), and Pointer v. Texas, 380 U.S. 400, 13 L. Ed. 2d 923, 85 Sup. Ct. 1065 (1965), as of controlling consequence, but those cases, it seems to me, do not meet the issues presented here.3

¶39*300Namet v. United States, 373 U.S. 179, 10 L. Ed. 2d 278, 83 Sup. Ct. 1151 (1963), holds that the defendant has no constitutional privilege to the Fifth-Amendment immunity of a witness. In that case, as here, the prosecution called and examined a witness who had earlier declared his intention to claim his Fifth-Amendment privilege against self-incrimination. Characterizing the defendant’s claim of error to the calling and examining of the witness as evidentiary only and not constitutional, the court said, “All that case involves, in short, is a claim of evidentiary trial error.” Then, accepting the rationale of United States v. Gernie, 252 F.2d 664 (2d Cir. 1958), and Weinbaum v. United States, 184 F.2d 330 (9th Cir. 1950), as to the calling of the witness by the prosecution, the Supreme Court said in Namet v. United States, supra, at 187:

And even when the objectionable inferences might have been found prejudicial, it has been held that instructions to the jury to disregard them sufficiently cured the error. (Footnote omitted.)

¶40Finally, in expressing views which I believe warrant an affirmance here, is the following statement from Namet, at 187:

We need not pass upon the correctness of the several lower court decisions upon which the petitioner relies, for we think that even within the basic rationale of those cases reversible error was not committed in this case. In the first place, the record does not support any inference of prosecutorial misconduct. It is true, of course, that Mr. Fitzgerald announced that the Kahns would invoke their testimonial privilege if questioned. But certainly the prosecutor need not accept at face value every asserted claim of privilege, no matter how frivolous. In this case, the prosecutor initially did not believe that the Kahns could, properly invoke their privilege against self-incrimination, reasoning with some justification that their plea of guilty to the gambling charge would erase *301any testimonial privileges as to that conduct. (Footnote omitted.)

¶41It is the judge, not the witness, who decides upon the admissibility of evidence, and the instant case demonstrates well the sound reasons for this rule. Patrick, in electing to answer a number of questions, did, as we have seen, supply material and competent evidence in support of the information—evidence which may well have been denied the jury if the prosecution were required to rehearse the examination in the jury’s absence, or had the court been obliged to accept at face value the witness’s assertion that he would not testify. Hence, where a witness claims the Fifth Amendment, it is the trial judge, not the witness or the defendant, who has the discretion as to the extent of the examination to be allowed, whether and to what extent a rehearsal shall be required in the jury’s absence, and which particular questions may incriminate the witness. Only when the trial court manifestly abuses this discretionary power should a conviction be reversed on appeal.

¶42If the state cannot call and examine a witness who may claim his right to refuse on the grounds of self-incrimination and the claim is held to estop the prosecution even from asking the questions, how can the court rule on whether the answers will tend to incriminate? Why, then, could not every recalcitrant witness avoid giving evidence simply by notifying the prosecuting attorney that he will claim the Fifth Amendment?

¶43The majority suggests that this problem will be avoided if the court but retires the jury and hears the question in its absence. Not only, however, does this procedure usually prove cumbersome and awkward, but, more importantly, deprives the state of a valuable right to have an important part of the trial take place before the jury. Who is to decree as a matter of law that the witness will not, under the stimulus of the jury’s presence, answer a number of questions which he would categorically refuse to answer in the jury’s absence? Had the judge been required, in the jury’s absence, to hear and rule on all questions first, the *302state would undoubtedly have been met with a categorical refusal by Patrick to answer any.

¶44I would say, therefore, the state has a right to require that the claim of the Fifth Amendment be made in the presence of the jury—subject only to a clear abuse of the trial court’s discretion—for it is altogether likely that the witness will be inclined to answer more questions before the jury than in its absence.

¶45Guarding against an abuse of the state’s right to call a witness who may claim his Fifth-Amendment privilege, the law provides several safeguards:

¶461. If it appears to the trial judge that the examination has become an inflammatory device rather than a tool to elicit relevant, competent evidence, the court, in the exercise of a sound reviewable discretion, can terminate the examination.

¶472. The court may instruct the jury to disregard the questions and heed the answers only, by pointing out the evidence comes from the witnesses, not the examiners, and may so caution the jury from time to time.

¶483. The court may, in the jury’s absence, require the prosecuting attorney to demonstrate that the prosecution has legitimate reasons to believe that the witness possesses material and relevant knowledge and that the examination is done in good faith and not merely to fish for information before the jury.

¶49All three safeguards rest where they belong—in the trial court’s discretion.

¶50Although we did not spell out the reasons for permitting Patrick’s examination before the jury in the first trial, we did rule that questioning him was not error (State v. Nelson, 65 Wn.2d 189, 396 P.2d 540 (1964)); by inference we left the matter to the discretion of the trial judge; we should stay with that ruling.

¶51Therefore, I would state the rule to be that the prosecuting attorney may call a witness to the stand who has indicated an intention to refuse to testify on the grounds that the answers may tend to incriminate him (1) when the *303prosecuting attorney reasonably and in good faith believes that the witness has material, competent and relevant evidence to give; (2) when there is a reasonable possibility that the witness may, in answering some questions, while claiming the Fifth Amendment privilege has to others, supply material evidence tending to prove material issues of fact in the case; and (3) when the examination is conducted in such a manner as to show a purpose to elicit material and relevant answers to legitimate questions, i.e., in such a way as to demonstrate that the prosecutor intends the answers and not the questions to constitute the evidence.

¶52In State v. Weekly, 41 Wn.2d 727, 252 P.2d 246 (1952), we said, at 728:

The good faith of counsel can be tested by the following, among other inquiries: Was the question based upon facts established by the record? Was it material and relevant? Did counsel have any basis for a belief that the court would overrule an objection to it? Did counsel abide the ruling of the court and not pursue the inquiry after the objection was sustained? Each of these questions must be answered in the affirmative in this case.

¶53When the examination is so conducted, it then rests within the sound discretion of the trial court as to how protracted or detailed the examination may be.

¶54Accordingly, if the prosecuting attorney believes that a witness possesses vital evidence concerning the commission of a crime by the defendant on trial, he has a sworn duty to present that witness to the jury. And who could possibly possess more vital and cogent evidence of a murder than an accomplice to the fact—one who planned, talked over with, and went to the scene of the killing with the defendant, one who was present and saw and heard the fatal shots fired and who fled from the scene with the accused and then entered the hospital at the same time with the accused for the treatment of wounds each received in the gunfight in which the victim met his death?

¶55The law ought not create devices which place control of criminal prosecutions in the hands of avowed criminals nor *304develop procedures which prevent the prosecuting attorney from carrying out his oath of office.

¶56I would affirm.

¶57Hunter, J., concurs with Hale, J.

¶58Rosellini, J., concurs in the result of the dissent.

¶59Appendix A

¶60Abstract of testimony of Alberta Burns

¶61February 2, 1963, Alberta Burns and Tom Patrick, riding in Patrick’s car, stopped for gas in Hoquiam; afterwards they stopped at a tavern called the Wigwam; and then made a stop at the Oxbow Tavern for hamburgers and coffee and then drove to a tavern at Amanda Park where they met defendant Nelson around 4 or 4:30. They had quite a few beers at the tavern and played shuffleboard. While there, Patrick and Nelson left her alone lor about 5 minutes, and when they returned, all three left the tavern and drove to Nelson’s cabin on Lake Quinault. The three went into the cabin where they stayed for a few minutes and then returned to the car, one of the men bringing a rifle with him from the cabin. She saw one of the men put the rifle on the floor behind the front seat where she also knew there was another rifle once belonging to her father. She asked what the gun from the Nelson cabin was for, and one of them said, “Something was up.”

¶62They then started out in Patrick’s car from the Nelson cabin, driving toward Aberdeen and stopping again at the Oxbow for coffee. After leaving the Oxbow, they proceeded toward Aberdeen, stopping another time at the Midway Tavern for coffee. It was now dark. Leaving the Midway Tavern, they drove toward Montesano, and while en route, Patrick, in Nelson’s hearing, asked her if she had any nylons to which she answered, “No.” Patrick stopped at the Safeway store in Montesano and said, “I want you to get some nylons,” and she went across the street and bought two pairs of nylon stockings. After she returned to the car with the nylons, the three, with Patrick driving and Mrs. Burns in the middle, drove toward Elma. It was now quite dark. They drove through what she described as a cedar field on the main road and turned off into a side road. Just as they turned off onto the side road, she heard a conversation between Nelson and Patrick concerning a car in a garage with no lights on.

¶63They continued driving down the side road for about a mile when Patrick stopped the car, and she heard the two men have a conversation concerning “which would be the best to go in.”

¶64While the car was stopped, Mrs. Burns took the bag containing the purchased nylons from the glove compartment, opened the sack, and laid the stockings on her lap. Nelson picked up one of the stockings and stretched the top of it with his hands. She saw him “put it around— *305trying to stretch it around his head or doing something with it around his head.”

¶65She said they stopped at a service station, and Nelson and Patrick got out of the car. Just before they stopped, and while Nelson was still in the car, Patrick “told me to keep in the car and keep the motor going, and if a car came along, to drive until I passed the car and then turn around and come back.” She said that a car did come by, and, following these instructions, she pulled out until the car passed, turned around, and came back, being headed finally toward Elma, opposite from the direction from which they had approached the service station. Before doing this, the two men had left the automobile, but Patrick came back to get a flashlight. It was dark while she waited in the car for the two men, there being no lights in the store or the Damitio home. A little while later, the two men returned, Patrick arriving first. He got in on the driver’s side. Nelson reached the car about a minute later. As he reached the front of the car, he leaned over the front fender; then, getting into the automobile, he said, “I am shot!” A little while later Patrick said he was shot, too. With Patrick at the wheel, they drove toward St. Joseph’s Hospital in Aberdeen. Before reaching the hospital, Patrick stopped the car, told her that his hand was hurting him, and Mrs. Burns took over the driving. She drove them straight to St. Joseph’s Hospital in Aberdeen. Mrs. Burns drove the car, with the two wounded men, up to the emergency entrance, and hospital attendants helped Nelson out of the car and put him on a stretcher. They arrived at the hospital about 10 o’clock, and she heard Patrick make a telephone call to the police station in Aberdeen.

¶66Mrs. Burns says that, in response to the telephone calls, some deputy sheriffs and the Aberdeen police arrived at the hospital; the sheriff’s deputies took Mrs. Bums to the sheriff’s office in Montesano.

¶67[Adverting to the earlier testimony, she testified] she saw two men get out of the car after they stopped at the service station, but she did not see whether either had anything in his hands. She waited for them; she heard nothing. She remembered that Patrick came back once to the car to get a flashlight, 10 or 15 minutes after he had left the first time. She says she did not see them remove the nylons from the car, but would have been unable to see them if they had done so.