Landreth v. State

• Decision Date: 08 January 1998
• Docket Number: No. CR,CR
• Citation: Landreth v. State, 331 Ark. 12, 960 S.W.2d 434 (Ark. 1998)
• Parties: George LANDRETH, Appellant, v. STATE of Arkansas, Appellee. 97-716.
• Court: Arkansas Supreme Court

Page 434

960 S.W.2d 434

331 Ark. 12

George LANDRETH, Appellant, v. STATE of Arkansas, Appellee.

No. CR 97-716.

Supreme Court of Arkansas.

Jan. 8, 1998.

Jeffrey Weber, Little Rock, for Appellant.

Winston Bryant, Atty. Gen., Gil Dudley, Asst. Atty. Gen., Little Rock, for Appellee.

BROWN, Justice.

This case arises out of the conviction of appellant, George Landreth, for the murder of Daisy Galaher. Landreth was convicted of capital murder and sentenced to life in prison without the possibility of parole. He raises five points on appeal which include issues of prosecutorial misconduct, discovery violations, and the alleged overlap of the capital murder and first-degree murder statutes. None of the issues raised has merit, and we affirm.

On March 15, 1995, Landreth was living with his ex-wife, Patricia Summerville, and her seventeen-year-old son, Shannon Summerville. Shannon testified at trial that Landreth came to the Summerville home at about 8:45 p.m. on that date. He first told Shannon and then told both Patricia Summerville and Shannon that he had killed Daisy Galaher. Landreth related to Shannon that he had picked up Galaher to go for a drive with him and that they went to the Tri-County Lake spillway, where they got out of the truck. Landreth put on his gloves, grabbed a shotgun from behind the seat of his truck, and shot her. The first time that he shot, he hit her in the arm. The second time, he shot her in the head. Landreth explained that he intended to dispose of her body in a well, but the body was too heavy. He eventually dragged her body to the Tri-County Lake spillway and left her in the water.

Patricia Summerville testified that in a separate conversation that same night, with Shannon present, Landreth told her the same story. She also testified that she and Laura Baker, who was Landreth's daughter, went over to his house the following morning and that he gave more details of the murder to both of them. Ms. Summerville testified that she and Laura Baker encouraged him to turn himself in, but that he refused to do so because he believed he could not be convicted because he had thrown the shotgun and Galaher's purse into the river.

In her testimony, Laura Baker confirmed the testimony of Patricia Summerville by testifying that they had been to see Landreth on the morning of March 16, 1995, and that he had given a detailed account of how he killed Galaher. Baker also testified that she had gotten two telephone calls from her father about the murder. In the first conversation which took place around 4:00 p.m. on March 15, 1995, Landreth said he was going to kill Galaher. In the second conversation which occurred that night between 8:00 p.m. and 8:30 p.m., Landreth told Baker that he had killed her.

The State also presented physical evidence linking Landreth to the murder. Chanteil Bequette, a criminalist with the State Crime Lab, testified that she found hairs that were similar to those of the victim in the truck driven by Landreth. She also found gunpowder residue on Landreth's hands. Lawrence Quill, a special agent with the F.B.I., testified that the DNA profiles from the blood taken from scrapings on the back of the truck driven by Landreth substantially matched the DNA profiles of the victim. The physical evidence at the crime scene testified to by investigators with the Arkansas State Police and the county which included the pools of blood and drag marks to the water corroborated the testimony given by the Summervilles and Baker.

I. Right to Remain Silent

For his first point, Landreth claims that the prosecutor improperly made reference to the fact that he had not testified in his own defense. Because of this, he contends that the trial court should have granted his motion for a mistrial due to the prejudice caused by the remark.

During closing argument, the prosecutor made this argument to the jury about Landreth's conversation with Laura Baker:

Have you heard anything about that conversation other than what Laura said was said? No. The reason why you've haven't is because the truth hurts.

Landreth objected to this as a comment on his failure to testify because he was the only other person with knowledge of his conversation with Baker. The trial court overruled the objection without additional comment. The State continued with its argument:

Ladies and gentlemen, as I was saying, other than what we heard Laura Baker say was the substance of that conversation, we heard nothing else. And she said to you that, "My dad called and he said, 'I did it.' " And Laura said, "Did what?" "I killed Daisy. I killed Daisy." That's exactly what he said at 4:00 o'clock that he was gonna do, and that's exactly what he said he did at 8:30. And then further--.

The trial court interrupted the prosecutor and called the attorneys to the bench for a sidebar conference. He advised the prosecutor that he was "flirting" with a comment on the defendant's failure to testify and warned him accordingly. The defense counsel again objected to no avail. Counsel made no request for a declaration of a mistrial or for an admonition to the jury.

The State does not argue to this court that Landreth's objection was not properly preserved or that the comment made by the prosecutor was not a comment on the defendant's failure to testify. Rather, the State argues that the prosecutor's comment was harmless in light of the overwhelming evidence amassed against Landreth.

First, we believe the prosecutor's argument was an impermissible comment on Landreth's right to silence guaranteed by the Fifth Amendment. It has long been the law in this state and this country that a prosecutor may not draw attention to the fact of, or comment on, a defendant's failure to testify. Otherwise, by commenting on his silence, the State makes the defendant a witness against himself and thereby violates the defendant's Fifth Amendment rights. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See also Bradley v. State, 320 Ark. 100, 896 S.W.2d 425, (1995) (citing Act 82 of 1885, now codified as Ark.Code Ann. § 16-43-501 (Repl.1994)). Even a veiled reference to the defendant's silence is improper. Bradley v. State, supra; Adams v. State, 263 Ark. 536, 566 S.W.2d 387 (1978).

The comment made by the prosecutor in the instant case is very similar to that made in Bailey v. State, 287 Ark. 183, 697 S.W.2d 110 (1985), where the prosecutor proclaimed in closing argument:

The only thing that we've heard here today about which occurred in that room is from [the victim]. She's the only person. The two ladies that were called they weren't in that room.

Bailey, 287 Ark. at 184, 697 S.W.2d at 110. The fact that the only two people in the room were the victim and the defendant meant that the defendant was the only other person who could have testified about what happened in that room. The same holds true in the instant case. In both situations, the prosecutor wrongfully alluded to the defendant's failure to testify.

But our analysis does not end there. In Bradley v. State, supra, this court discussed what is required to find that a prosecutor's improper comment on the defendant's constitutional right not to testify was harmless error:

In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the Supreme Court declared that references to a defendant's failure to testify violate the Fifth Amendment privilege against self-incrimination, but can be harmless error if it is shown beyond a reasonable doubt that the error did not influence the verdict. [Griffin v. California, 380 U.S. 609], 615, [85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965)]. Practical application of the Chapman test involves excising the improper remarks and examining the remaining evidence to determine if it can be shown beyond a reasonable doubt that the error did not influence the verdict. Logan v. State, 299 Ark. 266, 773 S.W.2d 413 (1989).

Bradley v. State, 320 Ark. at 105, 896 S.W.2d at 428. We went on to hold in Bradley that the evidence against the defendants was so overwhelming that the comments constituted harmless error.

Likewise, after discarding the testimony of Laura Baker, which, we conclude, was tainted by the prosecutor's argument, there remains overwhelming evidence of Landreth's guilt which renders the improper comments harmless beyond a reasonable doubt. The State presented the testimony of two other witnesses, Shannon Summerville and Patricia Summerville, to whom Landreth confessed his crime. Both related the detailed account he had given to them of how he killed the victim. Landreth challenges the credibility of the Summervilles, but the jury, as factfinder, chose to believe them. The testimony of the two witnesses was also independently corroborated by the physical evidence collected by the State, including hair similarities, blood splatters, corresponding DNA profiles for the blood found on the back of the truck and the victim's blood, and positive gun residue tests on Landreth's hands as well as the bloody drag marks at the crime scene. Hence, had Baker never testified, there remained overwhelming evidence of Landreth's guilt. The error, accordingly, was harmless beyond a reasonable doubt. For that reason, we hold that the prosecutor's comment on Landreth's failure to testify did not constitute reversible error.

We also note that the trial court found in its order denying the motion for a new trial that the jury would have reached the same result even without the testimony of Laura Baker. Though this finding was due to Baker's recanting of her trial testimony and then her later affirmance of it, this is additional confirmation of the fact that the State's evidence was more than sufficient even without Baker's testimony.

II. Continuance

Next, Landreth claims that the trial court erred in not granting him a continuance, or, in the alternative, a new trial based on the fact that both defense counsel and the prosecutor...