Hammers v. State

• Decision Date: 16 May 1977
• Docket Number: No. CR,CR
• Citation: Hammers v. State, 261 Ark. 585, 550 S.W.2d 432 (Ark. 1977)
• Parties: Pamela HAMMERS, Appellant, v. STATE of Arkansas, Appellee. 76-208.
• Court: Arkansas Supreme Court

Page 432

550 S.W.2d 432

261 Ark. 585

Pamela HAMMERS, Appellant, v.STATE of Arkansas, Appellee.

No. CR 76-208.

Supreme Court of Arkansas, In Banc.

May 16, 1977.

Wilson & Wilson, Osceola, Hanks, Taylor & Suddarth and Claude Hanks, Clayton, Mo., for appellant.

Bill Clinton, Atty. Gen., by B. J. McCoy, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

We are confronted here with a difficult problem arising from the age-old necessity for "dealing" with people involved in crimes in order to successfully prosecute their confederates.SeeCamron v. Texas, 32 Tex.Cr.R. 180, 22 S.W. 682 and accompanying Annot., 40 Am.St.Rep. 767(1893).Pamela Hammers, appellant herein, and James E. Stephens, ¹ were jointly charged with the murder of Cynthia Walker, by choking, beating and drowning her.They were also charged with manslaughter for causing the death of Ms. Walker's unborn child.Apparently, the prosecutor felt it was necessary, as it often is, to obtain the testimony of one of them against the other, if anyone was to be punished for the heinous crime committed by them.It eventually turned out, as is so often the case, both exhibited that extreme generosity about sharing the blame that makes accomplice testimony suspect.Each also seemed extremely reluctant to claim an equal share of the responsibility.

In spite of a "deal" made by appellant with the prosecuting attorney, she was put to trial, found guilty upon the testimony of Stephens, and some corroborating evidence tending to connect her with the crime, and sentenced to eight years' imprisonment.Prior to trial, she had moved to stay and enjoin the prosecution, alleging that she had waived her privilege against self-incrimination upon the offer and promise of the prosecuting attorney to request immunity for her and to nolle prosequi the charge against her.She alleged that, in accordance with this offer, she made an oral statement in which she divulged completely and totally all facts concerning the crimes with which she and Stephens were charged.The denial of this motion is her first and principal ground for reversal of the judgment against her.A reversal would mean that a participant, perhaps the principal one, in a cruel, useless killing escapes punishment.Of course, this should not be the basis for our decision on the important questions raised, and the ultimate disposition of this case must not be dictated by that possibility.

The difficulties with which the treatment of such a troublesome problem as this is fraught are exacerbated by the potential for disagreement and misunderstanding inherent in the failure to put in the record a written memorandum of the agreement or to obtain a court approval, as required by statute, by the very disorganized presentation of this matter to the trial court and by the manner of the abstracting of the record by appellant which shows little regard for our rules.Although we are considerably handicapped in doing so, we will endeavor to glean enough facts from appellant's unsatisfactory abstract and the state's effort to supply the deficiencies to treat the basic problem.Our effort to state facts may not be totally successful, because very little, if any, evidence was presented to the trial court at the hearings on this motion.These hearings consisted for the most part of discourses by the opposing attorneys, which seem to have been part stipulation and part argument, and we have experienced considerable difficulty in distinguishing a statement of fact from an argument.The record discloses that a memorandum of the agreement was prepared, or was to have been prepared, but it is apparently not in the record, perhaps because the parties endeavored to stipulate the facts.

It was charged that the crimes were committed on July 27, 1975.The information charging the crime of murder was originally filed August 4, 1975, and an amended information, on August 6, 1975.On September 23, 1975, appellant filed a motion for severance, alleging that she would be prejudiced by a joint trial because the issues were different and separate as to the respective codefendants, because Stephens had previously been convicted of felonies on two occasions, because she anticipated that statements of both codefendants, which were inconsistent with each other, would be offered in evidence, and because she anticipated that statements made to a witness by the defendants would be offered in evidence, some of which would not be applicable to her.This motion, which made no claim of immunity, was granted.As a matter of fact, there had been no negotiations of any sort between appellant and the state at that time.

At some time prior to November 4, 1975, appellant, acting upon the advice of her attorney, entered into plea bargaining with the prosecuting attorney and his deputy.It is conceded that some agreement, the exact terms of which we are unable to discern, was entered into between the prosecuting attorney and appellant.It did require appellant to waive her privilege against self-incrimination and to testify against Stephens.The prosecuting attorney agreed, in return, to move the court to enter a nolle prosequi and grant her total immunity against the charges against her.It was on November 3, 1975, the eve of the trial of Stephens, set for November 4, 1975, that appellant agreed to the terms and made a statement about the crime.She was present in court on November 4, 1975, ready, willing and able to testify, but the case was continued on motion of the state, because of the strange overnight disappearance of Thomas Griffin, a resident of California, who could have given and eventually did give, testimony about incriminating statements of the codefendants in the presence of each other, tending to connect them with the crime.An inquiry of the prosecuting attorney by appellant's attorneys on that day confirmed the fact that they still had a "deal."

Subsequently, upon a motion for discovery by the attorney for Stephens, filed about February 4, 1976, appellant's statement was supplied to this attorney.Thereafter, Stephens submitted to a polygraph test and on March 8, 1976, made a complete and detailed statement about the crime to the prosecuting attorney, and changed his plea from one of not guilty to one of guilty to the charges of murder in the second degree and of possession of marijuana and agreed to testify against appellant.Appellant was then notified that the prosecuting attorney was withdrawing from the agreement and would prosecute her on the charges of murder and manslaughter.The prosecuting attorney took the position that the agreement was binding only if and when appellant took the witness stand and testified against Stephens, but that when Stephens pleaded guilty the agreement did not require him to grant immunity or to nolle prosequi the charges.He returned the statement of appellant to her, and erased the tape on which it had been recorded.No reference to the statement was made during the trial.The prosecuting attorney also contended that the agreement was tentative, not binding because it had not been approved by the court, and void because the statement given by appellant was not made in good faith.

Appellant was, on November 4, represented by two attorneys, both of whom made affidavits in support of her motion.One of them stated that appellant's total immunity was not dependent upon Stephens going to trial.The other stated that she was granted immunity in exchange for her statement given and testimony to be given under oath, in the case of State of Arkansas v. James Eddie Stephens, and that on November 4, 1975, the guarantee of total immunity was affirmed and unconditionally promised by the prosecuting attorney and his deputy.The latter affiant stated that he was led to believe and did believe that all charges would be dismissed against appellant and that it would not be necessary that she stand trial.The prosecuting attorney contended that the agreement required "complete testimony" and that the prosecution should be permitted to continue because he had not moved and the court had not granted a nolle prosequi.In the state's response to appellant's motion it was alleged that the state had altered its position after further investigation revealed that the statement given by appellant was not made in good faith.

We cannot give great weight to the state's contention that appellant did not act in good faith, because that charge was not sustained by evidence.We could speculate that the state's attorneys had concluded that she had not made a full disclosure or that she had not stated the truth, but there was no showing, when the motions were heard, on which the trial court could have found that appellant had not made a complete and detailed statement of the occurrence or that she was untruthful.Furthermore, there was nothing to show that appellant was not, at all times, ready, willing and able to testify against Stephens had she been called as a witness, in spite of the fact that the prosecutors had some apprehension about the matter.We should add that we find no basis for holding that any of the attorneys had not acted in good faith in the matter.

It should be noted that the state has never moved for a nolle prosequi or for an order granting immunity to appellant, and, of course, no such order has been entered.It is clear that appellant's attorney was fully aware of the fact that immunity could only be granted by the court and that a nolle prosequi could not be entered without the approval of the court.As a matter of fact, one of them stated at the hearing that he fully understood that the trial court had the authority "not to honor the prosecuting attorney's request for immunity and a nolle pros" at the time of the hearing.The trial judge was aware when the Stephens trial was first set that appellant was going to testify and that she would give a statement or reduce her statement to...