Hendrickson v. State

v. STATE of Arkansas HENDRICKSON Patricia CR 84-164 of Arkansas delivered

Opinion April Childers, Mathis if for appellant. Gen., Wheeler, Clark,

Steve Asst. Att’y Michael E. by: Gen., for Att’y. appellee. Dudley, Robert H. The Patricia appellant, Justice.

Hendrickson, stands convicted of capital murder. felony The State contends that with appellant conspired Norma Foster, a college dormitory housemother at Ouachita student, Baptist University, and Mark Yarbrough, a hire student, Howard Vagi, another to kill her husband $16,000.00. did in Vagi fact murder appellant’s husband received a life plea agreement, sentence. Yarbrough was granted from immunity prosecution return for his Norma Foster was convicted of first testimony. degree murder and was sentenced to life. Her conviction has been recently reversed. Foster v. We also this reverse case and remand for trial.

a new this death case is this Jurisdiction Court. Rule 29(1)(b).

Appellant’s first is that the assignment error erred in her judge motion to her denying suppress inculpa- statement. tory The contention is meritorious. Prior her case, being in this charged was appellant’s attorney personal addition, H.W. “Dub” Arnold. In he her in also represented her as capacities personal of her deceased representative husband’s estate and guardian of her son’s estate. She testified that she as consulted with Arnold her frequently attorney one or another. Arnold also serves capacity Prosecuting venue in this Attorney having district case. Immediately interrogated, was Arnold appellant told the that he did not want to see and that appellant, her. While represent no longer personally

he could her, she rights Miranda reading were appellant’s officers interrogating “to Dub.” she wanted talk stated wanted meant knew the response officers Arnold told had been they her terminating Instead her. could represent he Arnold told her that the officers at that point, questioning subse- her. She not represent not there and he could was gave of Miranda rights executed waiver quently statement. inculpatory Illinois,

In 105 S.Ct. 490 Smith v. in the to apply we are forth the twofold test clearly set us:

situation before his An in custody, “having expressed accused counsel, only desire to deal with through to the authorities subject interrogation by further him,” to unless until counsel has been made available for the assistance of validly he waives his earlier request 484-485, Arizona, U.S., 101 v. 451 at counsel. Edwards S.Ct., rule, Fare v. at 1885. This “rigid” prophylactic 2569, 2560, C., 707, 719, Michael 61 442 U.S. 99 S.Ct. two distinct inquiries. embodies L.Ed.2d 197 First, accused courts must determine whether See, to Edwards e.g., invoked his counsel. actually right S.Ct., U.S., 484-485, Arizona, v. 101 at 451 at supra, for, his desire” 1884-1885 accused (whether “expressed to, or asserted” his the assistance “clearly right 444-445, Arizona, U.S., counsel); at 86 Miranda v. S.Ct., at (whether accused “indicate[d] manner at that he any stage and process wishfed] Second, to consult with an speaking”). counsel, if the accused invoked his courts right admit on his to further responses questioning that he further discussions finding (a) initiated waived police, (b) knowingly intelligently he v. right supra, had invoked. Edwards U.S., 485, 9, S.Ct., 1885, 486, at n. n. 9. at invoked The threshold inquiry whether right to counsel in the first Some courts have instance. questioning any request for or held that all must cease ambiguous. See, equivocal counsel, reference to e.g., App. however (Tex. 796, Crim. Ochoa v. 800-801 1978). attempted Others have to define a threshold clarity requests, standard of requests for and have held right falling trigger below this threshold do not e.g., People Krueger, See, 537, counsel. v. 412 N.E.2d (1980) (“[A]n assertion of the to counsel need not be explicit, unequivocal, clarity,” or made with unmistakable “every attorney, but not vague, how reference to an no matter ambiguous,

indecisive or should constitute an counsel”), den., invocation cert. 451U.S. adopted holding approach, 1981. Still others third equivocal that when an accused makes an statement that “arguably” request counsel, can be construed as all interrogation immediately except must cease for narrow questions designed “clarify” the earlier statement and the respecting e.g., Thompson See, accused’sdesires counsel. v. Wainwright, (5th 1979); Cir. State v. 771-772 Moulds, (App. 1983). 880, 888, 673 1074, 1082 105Idaho P.2d Court has not ruled on the matter.

We need not choose between these standards in the appellant’s vague instant casebecause statement was neither unequivocally “Dub”, not indecisive. She asked attorney. who was

Invocation of the of counsel and waiver are entirely inquiries. invoked, distinct the Once is a valid by showing only waiver cannot be established the responded police-initiated accused to further custodial interrogation. 477, v. Edwards 451 U.S. at 484 (1981) Therefore, suppressing . the trial erred in court not the statement. trial,

Because we reverse a and remand for new we assignments likely answer those of error arise which are to again upon retrial. trial, appellant asking

Prior to the filed motion prohibited qualifying” state be from the “death challenging expressed from for cause those . 466 capital punishment. opposition The to

conscientious State, Ark. upon relying court, v. Rector 280 our decision grant correctly the to 385, refused 168 grant again the upon retrial, refuse motion position urges our us abandon motion. The by adopt position supra, later Rector, taken taken Mabry, Appeals Grigsby Eighth v. Court Circuit respect great we have While 758 F.2d 226 change Eighth Circuit, opinions decline we Appeal which position. Courts of Circuit Other our have. See we the same as ruled the issue have considered 1984); (4th Smith Garrison, Cir. 129 v. F.2d Keeton 742 1981). (5th Balkcom, Cir. The v. issue, yet ruled on has not States of United soon dispute circuits grant between to resolve the certiorari significant public interest. is a matter of since it again Next, remand, allow the trial court should by Yarbrough testify Norma about statements Mark Foster Spears, conspiracy. The case of furtherance of the Bumgarner State, & v. Cassell 801(d)(2)(v)

(1983) dispositive this issue. Rule (Repl. Evid., Ark. Unif. Rules of Ark. Stat. Ann. § 28-1001 1979) testimony provides state out-of-court about an by co-conspirator during in further ment course and Thus, conspiracy hearsay. not at ance of a Id. 584. testimony Yarbrough’s statements Norma Foster about properly was admissible.

Also, again the trial court should from the exclude penalty phase polygraph of the trial the results of a given appellant. examination The rules evidence applicable phase not to the of the trial. SeeArk. Stat. 41-1301(4)(Repl. 1977) Ann. § and Hobbs v. (1981). However, evidence offered probative properly

must be of some issue be considered penalty phase. proffered test results were probative any penalty phase. of issue again appellant, upon retrial,

If sentenced the the trial reject appellant’s again court argument disproportionate in this that the death sentence is serving trigger pulled It is true case. one who young college student, sentence, a life but he awas appellant proof, while the was a mature adult under the procuring of cause the murder. There was evidence appellant entered into the contract have her husband gain $600,000.00. for killed The death financial over disproportionate sentence is not under the circumstances is addition, In the case. sufficient evidence aggravating circumstances.

Appellant argues points they likely other are not again, therefore, arise them. we do not address

Reversed and remanded. Hickman concur.

Holt, C.J., JJ., Purtle, Hays, dissents. J., concurring. majority Justice, Hickman, Darrell

opinion interrogating states that the officers “knew” the lawyer, wanted counsel, to her thus invoking rights her under Miranda v. 384U.S. 436 entirely They That concede, is not correct. did and it disputed, is not However, that she asked to see “Dub”. question is whether she meant she wanted to talk to her lawyer, get advice, present, merely his and have him or to charges prosecuting attorney. discuss her Did she apologize want to might embarrassment it cause the prosecutor since he had acted as her and knew her socially? testimony and her husband There was considerable regarding questions. myjudgment totality these In of invoking circumstances leads me to conclude that she was Considering her to undoubtedly circumstances, counsel. interpreted statement could have been an officers as did invocation of her to counsel. The officers not, however, they way. admit understood it that On face, not, its the statement “I to talk want to Dub” would as a law, unequivocal matter right be a clear and assertion of her However, Dub, my counsel. “I want to talk lawyer, answering your question” an would assertion. of the totality and the of the state

When the burden considered, not have the should circumstances a indeed she wanted if inquiring further without proceeded is a there Clearly, to Dub.” “to talk merely lawyer, difference. in

Holt, joins the concurrence. C.J., concur Purtle, I concurring. Justice, I. John on matter of trial court the but would also instruct result matters trial and on “death selecting qualified” at the next trial. relating sentencing phase stubborn, First, is, useless and it in my opinion, in written act to on the majority opinion stand expensive State, 168 (1983). Rector v. out soundly Court of has pointed Circuit Eighth Appeals in v. Mabry, Rector Grigsby the infirmities our opinion is a possibility there (1985). Although States Court will reverse Grigsby, United affirm. In meantime we should possibility is the it will law, is the but also only follow because it Grigsby in it is fair and I there is little difference very because feel just. on and the qualified” juries this court’s real “death standing in criteria established Grigsby. language

Both Rector have common Grigsby authorities. For and both on some of same rely part from Needham v. example quote both with cited (1949). Grigsby approval 224 S.W.2d 785 it was stated: Rector where concurring opinion who are states that persons The majority correctly death to the unalterably opposed imposition I think agree. I should excluded and penalty view. The mistake accord with this Witherspoon who excluding trial courts is persons made some the death against have moral or religious scruples it if law and but who would penalty agree impose it in the case tried. being warrant circumstances type juror. to exclude this never intended Witherspoon those who favored Neither did it indicate that juries. comprise I think the procedure lies on this issue correct controversial excluding prospective somewhere between including scruples against have only the death sentence and scruples against imposing no such those who have penalty. thought people I never that all or even most penalty favor the death are in modern barbarians society. jury composed only However, I feel do that a representative community. persons any jury composed only having Neither would a of those scruples against penalty represent community. The selection of should not favor properly the accused nor it A favor the state. jury selected enters its duties slanted toward proper selected, neither side. Thus it would not be qualified refer to the as death one. fully polygraph

I believe the results of the test of the phase should be in allowed the trial. present There can nobe doubt that the law allows the use of sentencing stage such evidence at the Ark. Stat. trial. (4) 1977) (Repl. part: Ann. 41-1301 § reads in any mitigating Evidence as to circumstances presented by regardless either the state or the defendant admissibility governing of its under admis- the rules sion of evidence trial of criminal . matters. . . held, reversing State, We conviction Hobbs v. sentencing 273 phase, mitigating evidence of circumstances should be it admitted if is made under has oath and the state an opportunity require to cross examine the witness. Both ments met in case here under review. stated We (1982): 98, 633 Ford v. “If aggravating circumstances, mitigating evidence of ever how slight, jury.” the matter should be submitted to the

Case Details

Case Name: Hendrickson v. State

Court Name: Supreme Court of Arkansas

Date Published: Apr 29, 1985

Citation: 688 S.W.2d 295

Docket Number: CR 84-164

Court Abbreviation: Ark.