Hale v. State

RAY THORNTON, Justice, dissenting. I respectfully dissent from the majority opinion. The United States Supreme Court made it clear in Kastigar v. United States, 406 U.S. 441 (1972), that any later use of immunized testimony is prohibited. This is the second time we have addressed the application of Kastigar to this case. In our previous decision, we specifically noted that “we admonish, as the trial court correctly did, that the Kastigar issue continues throughout the trial and prevents the State from impermissibly using any of Mr. Hale’s immunized testimony, or the evidence derived therefrom, at any point in the State proceeding.” Hale v. State, 336 Ark. 345 , 985 S.W.2d 303 (1999). When this case was returned to the trial court, the State violated the rule established in Kastigar by asking Mr. Hale questions involving his immunized testimony, notwithstanding our instruction against doing so. The trial court did not prohibit the use of this immunized testimony, but allowed the questioning to proceed. There was no immediate objection to this improper use of the testimony by defense counsel. However, .as the questioning proceeded, defense counsel did object. This objection was overruled by the trial court. Under these circumstances, I believe that the trial court erred in permitting the use of such protected evidence. In my view, this should settle the matter. I would reverse the case based on the use of immunized testimony protected by Kastigar.

The majority concludes that we cannot reach this issue because the defense counsel failed to make a contemporaneous objection to the improper questioning. In so concluding, the majority is disregarding our holdings in previous cases which outline various exceptions to the plain-error rule. This court has consistently and uniformly eschewed review of plain error in appeals from the trial courts of this State. But we have also adhered to four very limited exceptions to our plain-error rule, which were listed in Wicks v. State, 270 Ark. 781 , 606 S.W.2d 366 (1980). In Wicks, one of those exceptions read:

A third exception is a mere possibility, for it has not yet occurred in any case. That relates to the trial court’s duty to intervene, without an objection, and correct a serious error either by an admonition to the jury or by ordering a mistrial.

270 Ark. at 786 , 606 S.W.2d at 369 . That, without question, is the situation in the instant case. The trial court had a duty to intervene and prevent a Kastigar violation, when this court had made it perfectly clear that Hale’s immunized testimony was offlimits in the trial. This is particularly true since the trial court was well aware of potential Kastigar problems. The trial court had held one Kastigar hearing which-led to our decision in Hale I over the prosecutor’s suspected use of Hale’s testimony. In the case now before us, a second pretrial motion was filed which resulted in a hearing. The motion alleged that a Kastigar violation occurred when portions of Hale’s grand jury testimony were found in the Little Rock Police Department files. With this background of familiarity with the prohibition against the use of immunized evidence under the Kastigar rule, the trial court was not blind-sided when the prosecutor began a third violation of Kastigar by cross-examining Hale with a transcript of his immunized testimony from the Tucker trial. The trial court had the duty to intervene under the Wicks exceptions as soon as the State began using the immunized testimony. Further, when the violation of Kastigar was objected to by Hale, the trial court should have either given an admonition to the jury or declared a mistrial.

The record shows that when defense counsel did object to the prosecutor’s use of Hale’s immunized testimony from the Tucker trial, this colloquy took place:

Defense Counsel: And we would move that the charges be dismissed based on Kastigar at this time because, clearly, this has been used this testimony has been used that was immunized, and it has been used as (sic) for a purpose in this trial.

PROSECUTOR: He’s not being tried for this, and it’s used to impeach —

THE COURT: He’s not being tried for this.

Defense Counsel: 'Well, it’s not just — it’s not it’s for any purpose so to correct the investigation for impeachment and use at trial.

The Court: That’s denied.

Defense Counsel: And I figured that would be the answer of the Court in view of the position that has been in the past, but I needed to make my record. I needed to make it contemporaneously. And I apologize otherwise for interrupting.

PROSECUTOR: Well, it (sic) you wanted it to be a contemporaneous objection, it should have been when I walked up there with the testimony and he was going —

The Court: Oh, I understand. I understand.

Defense Counsel: I thought he was going to go to the —

The COURT: It’s denied. Mr. Finkelstein [prosecutor], let’s don’t belabor this too much longer. Okay?

What the colloquy establishes is that the trial court did not recognize its duty to prevent the use for any purpose of prohibited immunized testimony. I would reverse this case because the trial court failed to take any actions to prevent the jury’s consideration of this inadmissible testimony, and because the trial court did not, upon objection, correct the serious error by giving an admonition to the jury, or by ordering a mistrial.

I certainly support this court’s longstanding adherence to the contemporaneous-objection rule. But here, where the prosecutor was flouting this court’s order against use of immunized testimony, the trial court as well as defense counsel had a duty to step in and correct the serious error under Wicks v. State, supra. New principles of criminal jurisprudence are as sacrosanct as the right against self-incrimination. Because of this breach, Hale was not given a fair trial. I would reverse and remand for a new trial. For that reason, I respectfully dissent.