(dissenting in part, concurring in part) — Not until now has it been so clear that when prosecutors overreach in argument, defense counsel may remain mute and need raise no remonstrance against the abuse. It should now be plain to prosecutors that they can expect no clue from the defense when they are sailing into objectionable *513and troubled waters. It should also now be apparent to trial court judges that they must superintend each moment of a prosecutor's argument while the defense silently notes errors to appeal in case of a conviction. The prosecutor's argument is now an area where the court must act sua sponte to stop the errant prosecutor whether defense counsel wishes it or not.
Under the majority approach, it is only when the prosecutor's wrongdoing is egregious and should be most apparent to a defense counsel that counsel need do nothing, secure in the knowledge that the appellate courts will save the defendant in the end. When the demand for action should be at its height, the exercise of the lowest standards is to be rewarded.
Lest there be any confusion left by the majority's recitation of the facts, it is appropriate to point out that the argument which ensued among the adults took place because Nunn asked the boy, Sam Bright, to leave because she had experience with him taking things. Belgarde and Williams objected to Sam Bright being sent away, saying that they were trying to reform him.
Pape testified, at the trial, that during the argument Belgarde threatened him and he ordered Belgarde to leave. Pape said that Belgarde returned moments later with a rifle and shot him. Williams also testified that Belgarde shot both Pape and Nunn. Bright stated that while waiting outside he saw Belgarde retrieve a rifle from the car and reenter the house. He heard two shots and then Williams and Belgarde emerged from the house, Belgarde still holding the rifle. Bright testified on cross examination that Bel-garde had concocted a story about picking up a Cuban hitchhiker carrying a blue backpack and a rifle and had told Bright to tell that story. Bright also testified that, although he did not see the actual shooting, Belgarde further had told him not to say anything and that if he did not say anything, he would give him $5,000.
Five additional witnesses testified that on the night of the shootings, Belgarde confessed to them that he had shot *514two people, specifically mentioning Pape and Nunn to several witnesses. As recounted by one witness, Belgarde stated: "I killed two people. I blew this girl's head off."
It also came out during the trial, that after arriving at the Whatcom County police station, Belgarde gave an exculpatory statement to Chief Deputy Ron Panzero of the Skagit County Sheriff's Department. At that time Belgarde denied being in Skagit County on March 22, stating that he was in Whatcom County searching for a job. At that time Belgarde told Panzero he knew Williams but had not seen him for several weeks, and that he did not know and had not shot Pape or Nunn.
Belgarde's testimony during the trial contradicted his statement to Deputy Panzero. He admitted spending the day in question with Williams in Skagit County and visiting Pape and Nunn's house that night, but he claimed that Williams shot the couple. Belgarde admitted speaking with the witnesses who allegedly heard his confessions, but he denied making such confessions and attempted to show that the State's witnesses were lying to protect Williams.
I agree with the majority that the prosecutor's comments on the defendant's post-arrest silence were improper and violated due process. Referring to a defendant's silence upon his arrest, whether the silence is before or after he has been given Miranda warnings, is misconduct on the part of the prosecutor and normally cause for reversal. Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976); Anderson v. Charles, 447 U.S. 404, 65 L. Ed. 2d 222, 100 S. Ct. 2180, reh'g denied, 448 U.S. 912 (1980); State v. Evans, 96 Wn.2d 1, 633 P.2d 83 (1981); State v. Seeley, 43 Wn. App. 711, 719 P.2d 168, review denied, 107 Wn.2d 1005 (1986); 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). However, although I concur that the prosecutor's comments were improper, the majority remands the matter for a retrial without examining the whole record to ascertain whether absent this error, the trial would result *515in the same verdict. See State v. Guloy, 104 Wn.2d 412, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986). It appears to me that under the overwhelming untainted evidence test adopted by this court, we should determine whether the evidence is so overwhelming that it necessarily leads to a finding of guilt. Gulóy, at 426.
The critical issue was whether the defendant or Williams fired the shots which killed Nunn and wounded Pape as Belgarde admitted during the trial to being present when the shootings took place. Evidence of Belgarde's guilt included Pape and Williams' eyewitness accounts, Bright's testimony that he saw Belgarde enter and exit the house carrying the murder weapon just prior to and following the shots, and the testimony of five witnesses that Belgarde confessed to the shootings the same night. The State also presented expert testimony corroborating Pape and Williams' stories regarding the location from which both shots were fired which conflicted with Belgarde's version of events. The testimony of all the witnesses was credible save that of the defendant. The testimony of all of the other witnesses was consistent in general with that of each of the other witnesses save that of the defendant. The testimony of the defendant was contradicted by every other witness. I submit that the evidence was overwhelming as to the guilt of the defendant.
I agree also with the majority that the conduct of the prosecutor was improper, that he included factual recitations and personal opinion outside of the record, made inflammatory comments which were a deliberate appeal to the jury's passion and prejudice encouraging it to render a verdict based on the defendant's associations with AIM rather than on properly admitted evidence. The majority and I part company, because while the conduct of the prosecutor was flagrant, early objections by defense counsel and curative instructions could have avoided the prejudice engendered by the misconduct and the evidence of guilt is overwhelming. Most importantly, the result of the majority *516is to encourage defense counsel to abandon any responsibility to object and to place a sentence by sentence supervision of a prosecutor's conduct into the hands of the trial court. This undeservedly favors the defense when the prosecution forgets its role and its duty.
A prosecuting attorney's duty is to see that an accused receives a fair trial. State v. Charlton, 90 Wn.2d 657, 664-65, 585 P.2d 142 (1978); State v. Rose, 62 Wn.2d 309, 312, 382 P.2d 513 (1963); State v. Reeder, 46 Wn.2d 888, 892, 285 P.2d 884 (1955). The prosecutor, in the interest of justice, must act impartially, seeking a verdict free of prejudice and based on reason. State v. Charlton, supra; State v. Huson, 73 Wn.2d 660, 663, 440 P.2d 192 (1968), cert. denied, 393 U.S. 1096 (1969). In Charlton, it was stated:
In spite of our frequent warnings that prejudicial pro-secutorial tactics will not be permitted, we find that some prosecutors continue to use improper, sometimes prejudicial means in an effort to obtain convictions. In most of these instances, competent evidence fully sustains a conviction. Thus, we are hard pressed to imagine what, if anything, such prosecutors hope to gain by the introduction of unfair and improper tactics.
It has been thoughtfully observed that [i]f prosecutors are permitted to convict guilty defendants by improper, unfair means, then we are but a moment away from the time when prosecutors will convict innocent defendants by unfair means.
State v. Torres, 16 Wn. App. 254, 263, 554 P.2d 1069 (1976).
Charlton, at 665.
In general, during closing argument a prosecutor may state the law as set forth by the court in the instructions, State v. Mak, 105 Wn.2d 692, 726, 718 P.2d 407, cert. denied, 107 S. Ct. 599 (1986), and has wide latitude to argue the facts in evidence and reasonable inferences therefrom. State v. Mak, supra at 698, 726; State v. Papadopoulos, 34 Wn. App. 397, 401, 662 P.2d 59 (1983). We have consistently held improper, however, arguments which *517introduce extraneous inflammatory rhetoric, personal opinion, or facts unsupported by the record. See State v. Reed, 102 Wn.2d 140, 684 P.2d 699 (1984); State v. Music, 79 Wn.2d 699, 489 P.2d 159 (1971); State v. Huson, supra; State v. Rose, supra; State v. Case, 49 Wn.2d 66, 298 P.2d 500 (1956); State v. Reeder, supra. See also State v. Claflin, 38 Wn. App. 847, 690 P.2d 1186 (1984), review denied, 103 Wn.2d 1014 (1985); RPC 3.4(e)(f). Appeals to jury passion and prejudice are clearly improper. State v. Claflin, supra. As observed in State v. Case, supra:
"Language which might be permitted to counsel in summing up a civil action cannot with propriety be used by a public prosecutor, who is a quasi-judicial officer, representing the People of the state, and presumed to act impartially in the interest only of justice. If he lays aside the impartiality that should characterize his official action to become a heated partisan, and by vituperation of the prisoner and appeals to prejudice seeks to procure a conviction at all hazards, he ceases to properly represent the public interest, which demands no victim, and asks no conviction through the aid of passion, sympathy or resentment."
"The district attorney is a high public officer, representing the state, which seeks equal and impartial justice, and it is as much his duty to see that no innocent man suffers as it is to see that no guilty man escapes. In the discharge of these most important duties he commands the respect of the people of the county and usually exercises a great influence upon jurors. In discussing the evidence he is . . . given the widest latitude within the four corners of the evidence by way of comment, denunciation or appeal, but he has no right to call to the attention of the jury matters or considerations which the jurors have no right to consider."
Case, at 70-71 (quoting People v. Fielding, 158 N.Y. 542, 547, 53 N.E. 497 (1899)).
However, at no time during closing argument did defense counsel object or seek other corrective action from the court. To preserve improper argument as error on appeal, counsel must timely object, move for mistrial, or request a *518curative instruction or admonition. State v. Dunaway, 109 Wn.2d 207, 221, 743 P.2d 1237 (1987); State v. Charlton, supra; State v. Kendrick, 47 Wn. App. 620, 638, 736 P.2d 1079, review denied, 108 Wn.2d 1024 (1987). The only exception to this rule exists when the misconduct is so flagrant and ill intentioned that timely objection and curative instructions could not have obviated the resulting prejudice. State v. Dunaway, supra; State v. Charlton, supra.
Defense counsel had ample opportunity when the prosecutor first mentioned AIM in the context of the Irish Republican Army to object and preclude any further prejudicial remarks in the same vein. I do not condone the prosecutor's conduct, but we should not allow defense counsel to purposefully remain silent during improper argument, hoping for acquittal, but reserving the benefit of an error for appeal and a possible retrial in the event the jury convicts. See State v. Huson, supra. The trial court is in the best position to correct such errors and entitled to an opportunity to do so.
Defendant should not now be able to argue he received an unfair trial. A timely objection by an alert and responsible defense counsel, an instruction to disregard and an admonition from the bench could have emphasized the impropriety of the prosecutor's conduct, and stopped the prosecutor from getting out of line — avoiding wasteful expense and the difficulty of a retrial. Defense counsel's silence during closing argument not only results in unnecessary appeals and costly retrials, but also jeopardizes a defendant's rights leaving his protection solely to the appellate courts.
There is precedent for the result reached by the majority. However, perhaps never before has the contrast between the unsupported and improper argument of a prosecutor and the absolute silence of a defense counsel been so clear and stark. The result reached by the majority, which I find unnecessary in view of the overwhelming evidence of guilt, sends a clear message to both prosecutors and trial judges *519that prosecutors must stay within the bounds of the evidence admitted during the trial and argue the law as set forth in the court's instructions.
The result of the majority ignores the substantial evidence rule reaching its result because of the high degree of flagrant disregard of the bounds of closing argument by the prosecution. The majority does so without an examination of the evidence which supports only the conclusion reached by the jury. We said in State v. Martin, 73 Wn.2d 616, 627, 440 P.2d 429 (1968), cert. denied, 393 U.S. 1081 (1969):
The rule is now definitely established in this state that the verdict of the jury in a criminal case will be set aside and a new trial granted to the defendant, because of an error occurring during the trial of the case, only when such error may be designated as prejudicial. . . .
A prejudicial error may be defined as one which affects or presumptively affects the final results of the trial. . . . When the appellate court is unable to say from the record before it whether the defendant would or would not have been convicted but for the error committed in the trial court, then the error may not be deemed harmless, and the defendant's right to a fair trial requires that the verdict be set aside and that he be granted a new trial. But, where the defendant's guilt is conclusively proven by competent evidence, and no other rational conclusion can be reached except that the defendant is guilty as charged, then the conviction should not be set aside because of unsubstantial errors. ... To determine whether prejudice has resulted, it is necessary that the appellate court examine the entire record.
In the past it has been the rule that appellate courts would review alleged misconduct only if the defense objected to the misconduct at trial and requested a corrective instruction. Prosecutors and trial courts who rely hereafter on the defense to have any responsibility to guide prosecutorial conduct delude themselves.
The majority now sends a clear message — prosecutors stray from the law and the evidence at your peril; trial judges control the prosecutor within those boundaries and expect nothing from the defense or face reversal of a guilty *520verdict no matter how conclusive the proof or how meticulously conducted the trial.
I disagree with the opinion that this court does not have responsibility to review the entire record in any case of reversal to ascertain whether there is overwhelming evidence of guilt. I cannot concur in a rule which shifts the defense counsel's responsibility for correcting a prosecutor's misconduct entirely to the trial judge.
Durham, J., concurs with Callow, J.