The appellant, Patricia Hendrickson, stands convicted of capital felony murder. The State contends that appellant conspired with Norma Foster, a college dormitory housemother at Ouachita Baptist University, and Mark Yarbrough, a student, to hire Howard Vagi, another student, to kill her husband for $16,000.00. Vagi did in fact murder appellant's husband and, upon a plea agreement, received a life sentence. Yarbrough was granted immunity from prosecution in return for his testimony. Norma Foster was convicted of first degree murder and was sentenced to life. Her conviction has recently been reversed. Foster v. State, 284 Ark. ___, 687 S.W.2d 829 (1985). We also reverse this case and remand for a new trial. Jurisdiction of this death penalty case is in this Court. Rule 29(1)(b).
Appellant's first assignment of error is that the trial judge erred in denying her motion to suppress her inculpatory statement. The contention is meritorious. Prior to her being charged in this case, appellant's personal attorney was W.H. "Dub" Arnold. In addition, he also represented her in her capacities as personal representative of her deceased husband's estate and guardian of her son's estate. She testified that she frequently consulted with Arnold as her attorney in one capacity or another. Arnold also serves as Prosecuting Attorney of the district having venue in this case. Immediately before appellant was interrogated, Arnold told the police that he did not want to see appellant, and that he could no longer personally represent her. While the officers were reading appellant's Miranda rights to her, she stated that she wanted "to talk to Dub." The interrogating officers knew the response meant that appellant wanted to speak to her attorney but they had been told by Arnold that he could not represent her. Instead of terminating the questioning at that point, the officers told her that Arnold was not there and he could not represent her. She subsequently executed a waiver of her Miranda rights and gave the inculpatory statement.
In Smith v. Illinois, ___ U.S. ___, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984), the Supreme Court clearly set forth the twofold test we are to apply in the situation before us:
We need not choose between these standards in the instant case because appellant's statement was neither vague nor indecisive. She unequivocally asked to speak to "Dub", who was her attorney.
Invocation of the right of counsel and waiver are entirely distinct inquiries. Once the right is invoked, a valid waiver cannot be established by showing only that the accused responded to further police-initiated custodial interrogation. Edwards v. Arizona, 451 U.S. 477, at 484, 101 S.Ct. 1880, at 1884, 68 L.Ed.2d 378 (1981). Therefore, the trial court erred in not suppressing the statement.
Because we reverse and remand for a new trial, we answer those assignments of error which are likely to arise again upon retrial.
Prior to trial, appellant filed a motion asking that the state be prohibited from "death qualifying" the jury and from challenging for cause those jurors who expressed conscientious opposition to capital punishment. The trial court, relying upon our decision in Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983), correctly refused to grant the motion and, upon retrial, should again refuse to grant the motion. The appellant urges us to abandon our position taken in Rector, supra, and adopt the position taken later by the Eighth Circuit Court of Appeals in Grigsby v. Mabry, 758 F.2d 226 (8th Cir.1985). While we have great respect for the opinions of the Eighth Circuit, we decline to change our position. Other Circuit Courts of Appeal which have considered the issue have ruled the same as we have. See Keeten v. Garrison, 742 F.2d 129 (4th Cir.1984); Smith v. Balkcom, 660 F.2d 573 (5th Cir.1981). The Supreme Court of the United States has not yet ruled on the issue, but may soon grant certiorari to resolve the dispute between circuits since it is a matter of significant public interest.
Next, upon remand, the trial court should again allow Mark Yarbrough to testify about statements by Norma Foster in furtherance of the conspiracy. The case of Spears, Cassell & Bumgarner v. State, 280 Ark. 577, 660 S.W.2d 913 (1983) is dispositive of this issue. Rule 801(d)(2)(v) of the Ark.Unif. Rules of Evid., Ark.Stat. Ann. § 28-1001 (Repl.1979) provides that testimony about an out-of-court statement by a co-conspirator during the course and in furtherance of a conspiracy is not hearsay. Id. at 584, 660 S.W.2d 913. Thus, Yarbrough's testimony about statements by Norma Foster was properly admissible.
Also, the trial court should again exclude from the penalty phase of the trial the results of a polygraph examination given to appellant. The rules of evidence are not applicable to the penalty phase of the trial. See Ark.Stat.Ann. § 41-1301(4)
If the appellant, upon retrial, is again sentenced to death the trial court should again reject appellant's argument that the death sentence is disproportionate in this case. It is true that the one who pulled the trigger is serving only a life sentence, but he was a young college student, while the appellant was a mature adult and, under the proof, the procuring cause of the murder. There was evidence that appellant entered into the contract to have her husband killed for a financial gain of over $600,000.00. The death sentence is not disproportionate under the circumstances of the case. In addition, there is sufficient evidence of aggravating circumstances.
Appellant argues other points but they are not likely to arise again, and therefore, we do not address them.
Reversed and remanded.
HOLT, C.J., and HICKMAN and PURTLE, JJ., concur.
HAYS, J., dissents.
PURTLE, Justice, concurring.
I concur with the result but would also instruct the trial court on the matter of selecting a "death qualified" trial jury and on matters relating to the sentencing phase at the next trial.
First, it is, in my opinion, a stubborn, useless and expensive act to stand on the majority opinion as written in Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983). The Eighth Circuit Court of Appeals has soundly pointed out the infirmities of our Rector opinion in Grigsby v. Mabry, 758 F.2d 226 (1985). Although there is a possibility the United States Supreme Court will reverse Grigsby, there is the possibility it will affirm. In the meantime we should follow Grigsby not only because it is the law, but also because it is fair and just. I feel there is very little difference in this court's real standing on "death qualified" juries and the criteria established in Grigsby.
Both Rector and Grigsby have common language in part and both rely on some of the same authorities. For example both quote from Needham v. State, 215 Ark. 935, 224 S.W.2d 785 (1949). Grigsby cited with approval the concurring opinion in Rector where it was stated:
I fully believe the results of the polygraph test of the appellant should be allowed
We held, in reversing the conviction in Hobbs v. State, 273 Ark. 125, 617 S.W.2d 347 (1981), that in the sentencing phase evidence of mitigating circumstances should be admitted if it is made under oath and the state has an opportunity to cross examine the witness. Both requirements are met in the case here under review. We stated in Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982): "If there is any evidence of aggravating or mitigating circumstances, however slight, the matter should be submitted to the jury."
HICKMAN, Justice, concurring.
The majority opinion states that the interrogating officers "knew" the appellant wanted to speak to her lawyer, as counsel, thus invoking her rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). That is not entirely correct. They did concede, and it is not disputed, that she asked to see "Dub." However, the question is whether she meant she wanted to talk to her lawyer, get his advice, and have him present, or to merely discuss her charges with the prosecuting attorney. Did she want to apologize for any embarrassment it might cause the prosecutor since he had acted as her attorney and knew her and her husband socially? There was considerable testimony regarding these questions. In my judgment the totality of the circumstances leads me to conclude that she was invoking her right to counsel. Considering the circumstances, her statement undoubtedly could have been interpreted by the officers as an invocation of her right to counsel. The officers did not, however, admit that they understood it that way. On its face, the statement "I want to talk to Dub" would not, as a matter of law, be a clear and unequivocal assertion of her right to counsel. However, "I want to talk to Dub, my lawyer, before answering your question" would be such an assertion.
When the burden of the state and the totality of the circumstances are considered, the police should not have proceeded further without inquiring if indeed she wanted a lawyer, or merely "to talk to Dub." Clearly, there is a difference.
HOLT, C.J., joins in the concurrence.