dissenting.
During the trial of Thomas Williams, the prosecutor called an alleged accomplice, Randy Dixon, to the stand to testify for the state. The prosecutor asked Dixon if he had pled guilty to the offense of felony murder of Mary Russell. Upon receiving an affirmative answer, the prosecutor asked Dixon who was with him when he robbed the victim. Dixon said he did not want to answer without his attorney being present. The prosecutor sought to have the court instruct the witness to answer, saying that his only basis for refusing was self-incrimination and his guilty plea removed that privilege. Defense counsel moved that these matters be considered outside the presence of the jury. This motion was overruled and the prosecutor was allowed to proceed.
The prosecutor proceeded to argue his motion to compel answer, contending that the witness had no right to counsel. The court asked the witness the basis for his refusal to testify. The witness said, among other things, ".. .I’m not going down the road with this on my back, cause I know what they’ll do for a snitcher, and I’m not a snitcher, see. He snitched, see, and that’s his business. I’m not going, you know, come back and snitch on him because
*491he did me like that.”1
The majority find that there is no error to be reviewed .. in the absence of an objection to the remarks, a motion for mistrial or a demand for curative instructions such as would preserve the issue for review on appeal.” In my view, where the state calls an alleged accomplice who refuses to testify, and the defense moves to exclude the jury while a motion to compel is being argued, it is an abuse of discretion not to exclude the jury. I would not require a further objection, or motion for mistrial or curative instructions.
Having an alleged accomplice on the witness stand refusing to testify is a potentially explosive situation and overruling the motion to excuse the jury under these circumstances was an abuse of discretion in my opinion.
An investigator for the district attorney’s office had testified that the defendant confessed first and named Dixon. After the discussion between the court and Dixon, the court ruled that the witness would not be compelled to answer without his attorney being present.