Thе appellant, Norma Foster, was convicted of first degree murder and sentenced to life imprisonment. This appeal from that conviction is before us under Sup. Ct. R. 29( 1 )(b). We reverse and remand.
The appellant’s conviction stemmed from her alleged participation in the contract killing of Orin Hendrickson of Arkadelphia. At the time of the murder, the appellant was a housemother at Ouachita Baptist University in Arkadelphia. Mrs. Fоster was accused of having conspired with Hendrickson’s wife, Pat, and Mark Yarbrough, a student at OBU, to hire Howard Vagi, another OBU student, to kill Hendrickson in return for money. Vagi did in fact kill Hendrickson and is serving a life sentence in prison for that crime. Yarbrough was granted immunity from prosecution in return for his testimony at Mrs. Foster’s trial.
The appellant raises numerous issues on appeal, and we find merit in her contention that the trial judge erred by refusing to suppress her tаped statement. The facts surrounding the taping of the statement were as follows: Four officers went to the appellant’s home at about 2:30 a.m. They knocked on the door, and, when Mrs. Foster answered, told her that the prosecuting attorney, W. H. “Dub” Arnold, would like to see her and for her to come with them to his office. The officers testified that they went to pick Mrs. Foster up at the prosecuting attorney’s request. Once she arrived at Arnold’s office, the appellant was questioned by two of the officers. The prosecuting attorney did not participate in the questioning although he was in the building. He entered the room where Mrs. Foster was being questioned once to bring a tape recorder into the room and play part of a taped statement by Mark Yarbrough. Arnold told the appellant, “We know whatever the truth is. You might as well tell them.” He then left the room. Before taping Mrs. Foster’s statement, one of the officers informed her of her rights and she signed a waiver form.
The appellant contends that she was unlawfully brought to the prosecutor’s office for questioning and she is right. When we reviеw a ruling on a motion to suppress evidence, “we make an independent determination based upon the totality of the circumstances.” Grant v. State,
There are several legal mechanisms by which an individual can lawfully be picked up for questioning, but none of them were used in this case.
Arkansas R. Crim. P. 2.2 provides that a law enforcement officer may request a person to furnish information or to otherwise cooperate in the investigation of a crime. Rule 2.3 provides that if, pursuant to this rule, the officer asks any person to comе to or remain at a prosecuting attorney’s office, the officer shall take steps to make it clear that there is no legal obligation to comply with the request. To the contrary, no such steps were tаken here. In fact, one of the officers agreed during his testimony that Mrs. Foster did not volunteer for questioning but only went to the prosecutor’s office “because four officers came out to her house and pickеd her up and carried her down there.” The fact that Mrs. Foster accompanied the officers without being arrested or forced to comply does not demonstrate acquiescence. “[C]onsent to an invasion of privacy must be proved by clear and positive testimony — a burden that is not met by showing only acquiescence to a claim of lawful authority.” Meadows v. State,
Ark. Stat. Ann. § 43-801 (Repl. 1977) authorizes a prosecutor to issue subpoenas in all criminal matters under investigation. These written subpoenas must substantially follow a form provided in the statute. Here there was no subpoena used, the officers merely acted at the prosecutor’s direction.
It is illegal to use a prosecutor’s subpoena power “to obtain the presence of a witness for questioning by a police officer, absent the prosecutor.” Duckett v. State,
Since the case will be remanded, we will address the other issues raised by the appellant which are likely to arise on retrial.
The jury in this case was sequestered. The appellant argues that it was error for the trial judge not to administer the mandatory oath to the persons he placed in charge of the sequestered jury. We agree.
The oath is provided for in Ark. Stat. Ann. § 43-2121 (Repl. 1977):
The jurors, bеfore the case is submitted to them, may, in the discretion of the court, be permitted to separate, or be kept together in the charge of proper officers. The officers must be sworn to keep the jury together during the adjournment of the court, and to suffer no person to speak to or communicate with them on any subject connected with the trial, nor do so themselves.
The appellant’s attorney objectеd twice to the trial judge’s failure to swear the officers pursuant to the statute. His first objection was lodged when the officers were placed in charge of the jury at the beginning of the trial. He objected again the next day before the first witness was called. The judge obviously erred by not administering the oath as required by statute.
The appellant also contends that the trial judge erred by refusing to sequester a witness, W. H. “Dub” Arnold, the prosecutor, with thе other witnesses. The appellant asked the trial court to sequester the prosecutor because he expected to call him as a witness for the defense. The court did not err. Uniform R. Evid. 615 provides:
At the requеst of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of . . . (3) a person whosе presence is shown by a party to be essential to the presentation of his cause.
Here, Arnold stated and the court found, that he was essential to the case because he was the attorney trying it for the stаte. In McCoy Farms, Inc. v. J & M McKee,
The appellant also assigned as error the trial judgе’s refusal to allow the appellant to introduce the results of Pat Hendrickson’s polygraph test. The admission of the results was sought to bolster Mrs. Foster’s testimony that her suspicions about Mrs. Hendrickson’s involvement in the murder werе dispelled when she heard that Mrs. Hendrickson had taken and passed a polygraph examination.
Ark. Stat. Ann. § 42-903 (Repl. 1977) provides that the results of polygraph tests “shall be inadmissible in all courts in this State.” We have held that the results аre only admissible if both parties enter into a written stipulation agreeing on their admissibility. Wilson v. State,
The court erred however, when it permitted the prosecutor to call Pat Hendrickson, the wife of the deceased, who was charged with capital felony murder, as a witness even though both the court and the prosecutor knew that Mrs. Hendrickson would be advised to plead her fifth amendment privilege against self-incrimination. At the appellant’s bail bond hearing, Mrs. Hendriсkson’s attorney informed the prosecutor, the appellant’s attorney and the court that he would advise his client to invoke the fifth amendment if she was called to testify at Mrs. Foster’s trial. The appellant argued thаt calling her in light of her attorney’s statement was a “grandstand play” and sought a mistrial.
When she was called to the stand, Mrs. Hendrickson recited her name, address, the relation of the victim to her, his age at his death, and their child’s name and age. She was then asked, “Mrs. Hendrickson, I will call to your attention the time immediately prior to March 10, 1983 and ask you if you knew Norma Foster?” At that point, the witness invoked her fifth amendment right.
The Court of Appeals dealt with this sаme question in great detail in Sims v. State,
The evil in the non-testimony of such a witness is not the mere calling of the witness, but the obvious inferences drawn by a jury to a series of questions, to all of which the witness refuses to answer on Fifth Amendment grоunds. In that case the questions themselves “may well have been the equivalent in the jury’s mind of testimony.” Douglas v. Alabama,380 U.S. 415 , 419,85 S. Ct. 1074 ,13 L. Ed. 2d 934 , 937 (1965). Such improper questioning, not technically being testimony at all, deprives an accused of his right to cross-examine the witnesses against him as guaranteed by the Confrontation-Clause of the Sixth Amendment to the federal constitution [made obligatory on the states by the Fourteenth Amendment.] Dutton v. Evans,400 U.S. 74 ,91 S. Ct. 210 ,27 L. Ed. 2d 213 (1970); Frazier v. Cupp,394 U.S. 731 ,89 S. Ct. 1420 ,22 L. Ed. 2d 684 (1969); Douglas v. Alabama, supra.
The court also cited a Wisconsin decision, Price v. State,
Applying this rule to the instant case, there was an attempt by the prosecutor to build the state’s case out of inferences arising from Mrs. Hendrickson’s assertion of her fifth amendment privilege. “[T]he granting of a mistrial is a drastic remedy which should be resorted to only when the prejudice is so great that it cannot be removed.” Gross v. State,
Reversed and Remanded.