Hammers v. State

565 S.W.2d 406, 263 Ark. 378, 1978 Ark. LEXIS 2004

• Court: Supreme Court of Arkansas
• Decided: May 1, 1978
• Docket: CR 78-5
• Status: Published

Opinions

Conley Byrd, Justice.

Following the remand of this case in Hammers v. State, 261 Ark. 585, 550 S.W. 2d 432 (1977), after a hearing the trial court ruled that appellant Pamela Hammers was not entitled to relief on equitable principles and reinstated her murder conviction. We reverse for the reasons hereinafter stated.

The record, based upon the testimony of appellant’s counsel, the deputy prosecuting attorney and the prosecuting attorney shows that appellant had an agreement with the State for immunity from prosecution provided she would give testimony against her lover Eddie Stephens in accordance with a tape recorded statement she had given to the State on the evening of November 4, 1975. Appellant was in court ready to testify on both November 5th and 6th when the case against Eddie Stephens was continued because Thomas Griffin, a witness the State had failed to subpoena, was not present. On the morning of November 6th, in response to inquiry by appellant’s non-resident counsel, the deputy prosecuting attorney stated that the promised immunity would hold even if Stephens should “cop out and plead guilty.” The prosecuting attorney confirmed the deputy’s agreement while admitting that he did not believe appellant’s statement at the time.

The record shows that appellant had every right to rely upon the agreement consummated with the State and that she was not notified of anything to the contrary until after the State had obtained a guilty plea from Stephens and his agreement to testify against appellant.

During the testimony of the deputy prosecuting attorney, the trial court asked the following question:

“Q. ... At the time that you returned this statement and elected to prosecute Pamela Hammers, as far as you know, Pamela Hammers was still ready, willing and able to take the stand if called to testify to the facts set forth in her statement, whether it be true or false or whether the jury might believe it or not believe it?

A. Yes, sir, I had no reason to believe that she was not going to appear. I had no tangible reason to believe she would not testify. I had my own personal opinion but I felt like that we still had testimony coming from Pamela Hammers for whatever it was worth.”

The prosecuting attorney testified that he believed appellant and her attorney had something to do with the disappearance of the witness Thomas Griffin in November of 1975 and that the State was conned by appellant.

The record shows that when Thomas Griffin first disappeared, the prosecuting attorney subpoenaed Eddie Stephens’ mother to determine why Griffin absented himself, but she at that time took the Fifth Amendment. However, after Stephens pleaded guilty, his mother testified that appellant’s attorney told her she had to get Griffin out of town. Appellant’s counsel denied making any such statement to Stephens’ mother and pointed out that he had refused to represent Stephens. Appellant’s counsel also noted that it was not in the best interest of his client for the witness to be absent.

The deputy prosecuting attorney, who located Griffin to testify against appellant, admitted that Griffin stated that appellant’s counsel had nothing to do with his disappearance. The record also shows that, as late as 11 :00 p.m. before the witness’ disappearance, the State was on notice that Griffin was scared and that he had been receiving some phone calls from Stephens’ mother. Even then the State did not fake the precaution of getting a subpoena served on Griffin.

On the record before us it is shown that the State, through its officials, made a bargain with the appellant for her testimony; that appellant stood ready and willing to testify at all times; and that the State took full advantage of the bargain until after Stephens entered his plea of guilty and promised to testify against appellant. Thus, we see that at all times appellant was entitled to rely upon the promise of the public prosecutor until after Eddie Stephens was convicted on a guilty plea and after he had the advantage of knowing what her testimony was going to be. It follows that the trial court erred in ruling that she was not entitled to immunity on equitable principles.

It has been suggested that the trial court should be affirmed because Eddie Stephens testified that: “She told me, setting in the back of the courtroom, I believe it was November 6th, I was to go to trial, ... ‘I am not going to testify.’ She was to be granted immunity and I would be acquitted.” If a negotiated grant of immunity can be set aside upon such uncorroborated testimony by a codefendant, after the codefendant has successfully negotiated a reduced sentence, then counsel will never be able to safely advise his client to give testimony in exchange for a grant of immunity. We note that the State, in making its decision to prosecute appellant as set out above, readily acknowledges that she stood ready to testify at all times.

As pointed out in People v. Brunner, 32 Cal. App. 3d 908, 108 Cal. Rptr. 501 (1973), it is a fact of life that the quality of veracity and honor among thieves and murderers leaves something to be desired, and the prosecuting attorney, upon whose shoulders the problem first falls, may find that in granting immunity to one he could have prosecuted he has exchanged gold for brass. Yet, on the other hand, it is sometimes the heavy persuasion of family and friends that finally convinces one charged with a crime that he or she should exchange testimony for a grant of immunity. In the last analysis, such matters must be considered from the standpoint of some standard applicable to the State as a whole for it is sometimes necessary to have the testimony of a codefendant to solve even the most heinous crime.

Reversed and dismissed.

Harris, C.J., and Hickman, J,, concur. Fogef.man, J., dissents.