{ "id": 1877672, "name": "Norma FOSTER v. STATE of Arkansas", "name_abbreviation": "Foster v. State", "decision_date": "1985-04-15", "docket_number": "CR 84-188", "first_page": "363", "last_page": "371", "citations": [ { "type": "official", "cite": "285 Ark. 363" }, { "type": "parallel", "cite": "687 S.W.2d 829" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "259 Ark. 96", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1619240 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/ark/259/0096-01" ] }, { "cite": "8 Ark. App. 241", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141062 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark-app/8/0241-01" ] }, { "cite": "373 U.S. 179", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11717069 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/us/373/0179-01" ] }, { "cite": "154 N.W.2d 222", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1967, "opinion_index": 0 }, { "cite": "37 Wis. 2d 117", "category": "reporters:state", "reporter": "Wis. 2d", "case_ids": [ 8671099 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/wis-2d/37/0117-01" ] }, { "cite": "394 U.S. 731", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6179959 ], "weight": 3, "year": 1969, "opinion_index": 0, "case_paths": [ "/us/394/0731-01" ] }, { "cite": "400 U.S. 74", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046557 ], "weight": 3, "year": 1970, "opinion_index": 0, "case_paths": [ "/us/400/0074-01" ] }, { "cite": "380 U.S. 415", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1525326 ], "weight": 4, "year": 1965, "pin_cites": [ { "page": "419" }, { "page": "937" } ], "opinion_index": 0, "case_paths": [ "/us/380/0415-01" ] }, { "cite": "4 Ark. App. 303", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141683 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark-app/4/0303-01" ] }, { "cite": "277 Ark. 43", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1750265 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark/277/0043-01" ] }, { "cite": "263 Ark. 20", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1672604 ], "weight": 3, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/263/0020-01" ] }, { "cite": "268 Ark. 687", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1715266 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/268/0687-01" ] }, { "cite": "269 Ark. 380", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1712564 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/269/0380-01" ] }, { "cite": "267 Ark. 50", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1719889 ], "weight": 3, "year": 1979, "opinion_index": 0, "case_paths": [ "/ark/267/0050-01" ] } ], "analysis": { "cardinality": 720, "char_count": 11944, "ocr_confidence": 0.832, "pagerank": { "raw": 3.4732152104891025e-07, "percentile": 0.8813469433932248 }, "sha256": "6431571f98ba29e59e82832a7ffea879d1e2f52831a8b099bda1090b23407fe4", "simhash": "1:33f8e82642bedfb9", "word_count": 2040 }, "last_updated": "2023-07-14T21:18:39.025760+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Norma FOSTER v. STATE of Arkansas" ], "opinions": [ { "text": "Jack Holt, Jr., Chief Justice.\nThe 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.\nThe appellant\u2019s 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. Foster was accused of having conspired with Hendrickson\u2019s 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\u2019s trial.\nThe appellant raises numerous issues on appeal, and we find merit in her contention that the trial judge erred by refusing to suppress her taped statement. The facts surrounding the taping of the statement were as follows: Four officers went to the appellant\u2019s 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. \u201cDub\u201d 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\u2019s request. Once she arrived at Arnold\u2019s 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, \u201cWe know whatever the truth is. You might as well tell them.\u201d He then left the room. Before taping Mrs. Foster\u2019s statement, one of the officers informed her of her rights and she signed a waiver form.\nThe appellant contends that she was unlawfully brought to the prosecutor\u2019s office for questioning and she is right. When we review a ruling on a motion to suppress evidence, \u201cwe make an independent determination based upon the totality of the circumstances.\u201d Grant v. State, 267 Ark. 50, 589 S.W.2d 11 (1979). We do not set aside the trial judge\u2019s finding unless it is clearly against the preponderance of the evidence. Ibid.\nThere are several legal mechanisms by which an individual can lawfully be picked up for questioning, but none of them were used in this case.\nArkansas 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 come to or remain at a prosecuting attorney\u2019s 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 taken 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\u2019s office \u201cbecause four officers came out to her house and picked her up and carried her down there.\u201d The fact that Mrs. Foster accompanied the officers without being arrested or forced to comply does not demonstrate acquiescence. \u201c[C]onsent to an invasion of privacy must be proved by clear and positive testimony \u2014 a burden that is not met by showing only acquiescence to a claim of lawful authority.\u201d Meadows v. State, 269 Ark. 380, 602 S.W.2d 636 (1980). Such acquiescence is all the state has been able to demonstrate here.\nArk. Stat. Ann. \u00a7 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\u2019s direction.\nIt is illegal to use a prosecutor\u2019s subpoena power \u201cto obtain the presence of a witness for questioning by a police officer, absent the prosecutor.\u201d Duckett v. State, 268 Ark. 687, 600 S.W.2d 18 (Ark. App. 1980). It is unquestionably illegal therefore to use the office of the prosecutor, absent even a subpoena, to obtain the presence of a witness for the same purpose. The officers picked Mrs. Foster up in the middle of the night ostensibly because the prosecutor wished to see her. The prosecutor however did not participate in the subsequent questioning except for one brief appearance to play a portion of a tape. The entire procedure whereby Mrs. Foster\u2019s presence at the prosecutor\u2019s office was obtained was merely a guise to let the officers detain her and interrogate her. Based on the totality of the circumstances, the illegality of this procedure has impermissibly tainted Mrs. Foster\u2019s subsequent statement and it should have been suppressed.\nSince the case will be remanded, we will address the other issues raised by the appellant which are likely to arise on retrial.\nThe 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.\nThe oath is provided for in Ark. Stat. Ann. \u00a7 43-2121 (Repl. 1977):\nThe jurors, before 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.\nThe appellant\u2019s attorney objected twice to the trial judge\u2019s 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.\nThe appellant also contends that the trial judge erred by refusing to sequester a witness, W. H. \u201cDub\u201d Arnold, the prosecutor, with the 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:\nAt the request 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 whose presence is shown by a party to be essential to the presentation of his cause.\nHere, Arnold stated and the court found, that he was essential to the case because he was the attorney trying it for the state. In McCoy Farms, Inc. v. J & M McKee, 263 Ark. 20, 563 S.W.2d 409 (1978), this court found that neither the statutes on sequestration nor the Code of Professional Conduct requires the exclusion of a party\u2019s attorney when the attorney is called as a witness by the adverse party. We said in McCoy that a party\u2019s only lawyer falls within the category of Rule 615(3) essential persons. \u201cThe rule against the attorney who becomes a witness continuing as an advocate was not designed to permit a lawyer to call opposing counsel as a witness and thereby disqualify him.\u201d Ibid. However, had Arnold played a greater role in the interrogation of Mrs. Foster he might have been properly subject to sequestration. Instead the questioning was done by the officers and Arnold entered the room only once to play part of a tape and speak briefly to the appellant.\nThe appellant also assigned as error the trial judge\u2019s refusal to allow the appellant to introduce the results of Pat Hendrickson\u2019s polygraph test. The admission of the results was sought to bolster Mrs. Foster\u2019s testimony that her suspicions about Mrs. Hendrickson\u2019s involvement in the murder were dispelled when she heard that Mrs. Hendrickson had taken and passed a polygraph examination.\nArk. Stat. Ann. \u00a7 42-903 (Repl. 1977) provides that the results of polygraph tests \u201cshall be inadmissible in all courts in this State.\u201d We have held that the results are only admissible if both parties enter into a written stipulation agreeing on their admissibility. Wilson v. State, 277 Ark. 43, 639 S.W.2d 45 (1982). There was no stipulation between the parties and the results were therefore inadmissible. The mere mention of the test, under the circumstances, makes obvious its results, which is inadmissible hearsay.\nThe 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\u2019s bail bond hearing, Mrs. Hendrickson\u2019s attorney informed the prosecutor, the appellant\u2019s attorney and the court that he would advise his client to invoke the fifth amendment if she was called to testify at Mrs. Foster\u2019s trial. The appellant argued that calling her in light of her attorney\u2019s statement was a \u201cgrandstand play\u201d and sought a mistrial.\nWhen 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\u2019s name and age. She was then asked, \u201cMrs. Hendrickson, I will call to your attention the time immediately prior to March 10, 1983 and ask you if you knew Norma Foster?\u201d At that point, the witness invoked her fifth amendment right.\nThe Court of Appeals dealt with this same question in great detail in Sims v. State, 4 Ark. App. 303, 631 S.W.2d 14 (1982). The court quoted the state\u2019s brief as follows:\nThe 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 grounds. In that case the questions themselves \u201cmay well have been the equivalent in the jury\u2019s mind of testimony.\u201d 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.\nThe court also cited a Wisconsin decision, Price v. State, 37 Wis. 2d 117, 154 N.W.2d 222 (1967) which held: \u201cno error is committed by the mere fact of calling a witness who will claim the privilege.\u201d Instead the court said Namet v. United States, 373 U.S. 179 (1963) \u201cmakes it clear that the forbidden conduct is the \u2018conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege.\u2019\u201d\nApplying this rule to the instant case, there was an attempt by the prosecutor to build the state\u2019s case out of inferences arising from Mrs. Hendrickson\u2019s assertion of her fifth amendment privilege. \u201c[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.\u201d Gross v. State, 8 Ark. App. 241, 650 S.W.2d 603 (1983); Gammel & Spann v. State, 259 Ark. 96, 531 S.W.2d 474 (1976). Here the prejudice is great.\nReversed and Remanded.", "type": "majority", "author": "Jack Holt, Jr., Chief Justice." } ], "attorneys": [ "James C. Cole, for appellant.", "Steve Clark, Att\u2019y Gen., by: Velda P. West, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Norma FOSTER v. STATE of Arkansas\nCR 84-188\n687 S.W.2d 829\nSupreme Court of Arkansas\nOpinion delivered April 15, 1985\nJames C. Cole, for appellant.\nSteve Clark, Att\u2019y Gen., by: Velda P. West, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0363-01", "first_page_order": 393, "last_page_order": 401 }