Landreth v. State

George LANDRETH v. STATE of Arkansas

CR 97-716                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered January 8, 1998


1.   Constitutional law -- Fifth Amendment -- comment on defendant's failure to
     testify forbidden. -- 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
     defendantþs Fifth Amendment rights; even a veiled reference to
     the defendant's silence is improper.

2.   Constitutional law -- Fifth Amendment -- test for determining whether
     reference to failure to testify was harmless error. -- 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; practical application of this 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.

3.   Constitutional law -- Fifth Amendment -- overwhelming evidence of
     appellant's guilt rendered improper prosecutorial comments harmless beyond
     reasonable doubt. -- After discarding a witness's testimony that
     was tainted by the prosecutor's argument, the supreme court
     determined that there remained overwhelming evidence of
     appellant's guilt that rendered the improper comments on
     appellant's right to silence harmless beyond a reasonable
     doubt where the State presented the testimony of two other
     witnesses to whom appellant confessed his crime, and where the
     testimony of the two witnesses was also independently
     corroborated by the physical evidence collected by the State;
     the supreme court held that the prosecutor's comment on
     appellant's failure to testify did not constitute reversible
     error.

4.   Motions -- continuance -- trial court's discretion. -- A motion for a
     continuance is addressed to the sound discretion of the trial
     court, and the court's decision will not be reversed absent an
     abuse of discretion.

5.   Motions -- continuance -- good cause and consideration of public's interest
     required. -- Continuances are governed in part by Ark. R. Crim.
     P. 27.3, which requires good cause and a consideration of the
     public's interest in a prompt disposition of cases.

6.   Motions -- continuance -- affidavit requirements. -- Continuances are
     governed in part by Ark. Code Ann.  16-63-402(a) (1987),
     which requires an affidavit from the defense showing the
     materiality of the evidence expected to be obtained and that
     due diligence has been used to obtain it; if the motion is for
     an absent witness, the affidavit must show what facts the
     affiant believes the witness will prove and not merely show
     the effect of the facts in evidence, that the affiant himself
     believes them  to be true, and that the witness is not absent
     by the consent, connivance, or procurement of the party asking
     the postponement; the supreme court has further required that
     the movant for a continuance show by affidavit the likelihood
     of procuring the absent witness.

7.   Motions -- continuance -- appellant failed to show that trial court abused
     its discretion in denying. -- Appellant failed to show that the
     trial court abused its discretion in denying his motion for
     continuance where appellant made no showing of any likelihood
     of procuring the absent testimony; where all that he presented
     was an anonymous letter that purported to set forth
     exculpatory evidence; and where the record did not reveal that
     appellant had ever filed an affidavit showing the materiality
     of the evidence expected to be obtained or that due diligence
     had been used to obtain that evidence, as required by Ark.
     Code Ann.  16-63-402(a); finally, appellant could not succeed
     in his argument that the State violated Brady v. Maryland, 373 U.S. 83 (1963), and Ark. R. Crim. P. 17.1, where his counsel
     also received the letter in question before trial; the trial
     court correctly denied the motion for a continuance.

8.   Trial -- defense counsel cannot rely on State's investigation as substitute
     for his or her own. -- A defense counsel cannot simply rely on
     the State's investigation as a substitute for his or her own;
     nor can defense counsel or the court require the State to take
     a particular investigative course. 

9.   Motions -- new trial -- appellant failed to meet burden. -- To succeed
     in a motion for new trial, a defendant has the burden of
     developing and presenting evidence sufficient to show that a
     new trial is warranted, which is discretionary with the trial
     court; where defense counsel had a month to develop supporting
     evidence and failed to so, the burden was not met; the trial
     court correctly denied the motion for a new trial.

10.  Constitutional law -- statutory overlap -- appellant presented no good
     reason to overturn line of death-penalty cases. -- Appellant's
     proposition that the definition of capital murder found in
     Ark. Code Ann.  5-10-101(A)(4) (Repl. 1993) impermissibly
     overlaps with the definition of first-degree murder found in
      5-10-102(A)(2) (Repl. 1993) and that the jury was given
     unfettered discretion to convict him of either offense in
     violation of the Eighth and Fourteenth Amendments to the
     United States Constitution had been squarely rejected by the
     supreme court when the death penalty was at issue, and the
     court noted that, while relying primarily on death-penalty
     cases despite the State having waived the death penalty,
     appellant had presented the court with no good reason to
     overturn its line of death cases, and it declined to do so.

11.  Appeal & error -- any prejudice caused by reference to defense counsel as
     "public defenders" was speculative and cured by admonition -- mistrial not
     warranted. -- Any prejudice caused by reference to the defense
     counsel as "public defenders" was speculative at best; if
     there was prejudice, it was not so great as to warrant a
     mistrial and, in any event, was cured by an admonition to the
     jury.


     Appeal from Calhoun Circuit Court; John Graves, Judge;
affirmed.
     Arkansas Public Defender Comm'n Capital, Conflicts & Appeals
Office, by: Jeffrey Weber, for appellant.
     Winston Bryant, Att'y Gen., by:  Gil Dudley, Asst. Att'y Gen.,
for appellee.

     Robert L. 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 Landrethþs 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 Landrethþs 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 þflirtingþ with a comment on the defendantþs 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 Landrethþs
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 prosecutorþs argument was an
impermissible comment on Landrethþs 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 defendantþs Fifth
Amendment rights.  See Chapman v. California, 386 U.S. 18 (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 defendantþs 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
prosecutorþs improper comment on the defendant's constitutional
right not to testify was harmless error:
     In Chapman v. California, 386 U.S. 18 (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.  Id. at 615.  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 prosecutorþs 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
victimþs 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
Landrethþs 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
received an anonymous letter containing exculpatory evidence three
days before the trial.  Landreth adds that the prosecutor did not
divulge this information to him or properly investigate the
exculpatory information.  The letter in question set out a story in
which the victim, Daisy Galaher, was not killed by Landreth but
instead was kidnapped and delivered to several people outside the
county as part of an intricate drug operation.  This apparently led
to her death.  The anonymous letter contained the names of those
involved in the "conspiracy."  Some of the names appeared from
their context in the letter to be aliases while others were the
actual names of people with a criminal history.
     On the day of the trial, defense counsel moved for a
continuance to give him time to investigate the allegations in the
letter.  A hearing was immediately held where Landreth argued that
the prosecutor had received the same letter, had not informed the
defense counsel, and had not fully investigated the letter.  The
State answered with the testimony of Arkansas State Police
Investigator Glenn Sligh to show that an investigation into the
letter had been commenced but that nothing had been developed to
substantiate any assertions in the letter.  The trial court ruled
that the investigation of the letter should continue, but it denied
the continuance motion.  The court added that it could not continue
a trial every time an anonymous letter appeared a few days before
the trial date.
     Following the conviction in this matter, the trial court
considered the defense counsel's motion for a new trial, which was
based partially on the allegation that the State had not properly
investigated the letter.  Landreth offered evidence of the State's
inactivity with regard to the letter.  The trial court ruled that
though it was concerned about the actions taken by the prosecutor,
based on the evidence submitted, including the letters themselves,
there was insufficient evidence to justify a new trial.
     This court has made it clear that a motion for a continuance
is addressed to the sound discretion of the trial court, and the
court's decision will not be reversed absent an abuse of
discretion.  Travis v. State, 328 Ark. 442, 944 S.W.2d 96 (1997);
Hill v. State, 321 Ark. 354, 912 S.W.2d 229 (1995); Wilson v.
State, 320 Ark. 142, 895 S.W.2d 524 (1995).  Continuances are
governed in part by Ark. R. Crim. P. 27.3, which requires good
cause and a consideration of the publicþs interest in a prompt
disposition of cases.
     Continuances are further governed by statute which requires an
affidavit from the defense:
     [S]howing the materiality of the evidence expected to be
     obtained and that due diligence has been used to obtain
     it.  If the motion is for an absent witness, the
     affidavit must show what facts the affiant believes the
     witness will prove and not merely show the effect of the
     facts in evidence, that the affiant himself believes them 
     to be true and that the witness is not absent by the
     consent, connivance, or procurement of the party asking
     the postponement.
Ark. Code Ann.  16-63-402(a) (1987).  This court has further
required that the movant for a continuance show by affidavit the
likelihood of procuring the absent witnesses.  See Travis v. State,
supra; Hill v. State, supra; Cloird v. State, 314 Ark. 296, 862 S.W.2d 211 (1993).
     Landreth has not shown that the trial court abused its
discretion in denying the motion for continuance.  Landreth made no
showing of any likelihood of procuring the absent testimony.  All
that he presented was the anonymous letter itself.  Moreover, as
the State properly underscores in its brief, the record does not
reveal that Landreth ever filed an affidavit showing the
materiality of the evidence expected to be obtained or that due
diligence had been used to obtain that evidence, as required by 
16-63-402(a).  Finally, Landreth cannot succeed in his argument
that the State violated Brady v. Maryland, 373 U.S. 83 (1963), and
Ark. R. Crim. P. 17.1, when his counsel also received the letter in
question before trial.
     Landreth further contends that because the State did not
conduct an effective investigation, the trial court should have
granted his motion for a new trial.  The deficiency in this
argument is that we have held a defense counsel cannot simply rely
on the State's investigation as a substitute for his or her own. 
See, e.g., State v. Pulaski County Circuit Court, 316 Ark. 514, 872 S.W.2d 414 (1994).  Nor can defense counsel or the court require
the State to take a particular investigative course.  Id.  In order
to succeed in a motion for new trial, a defendant has the burden of
developing and presenting evidence sufficient to show that a new
trial is warranted, which, again, is discretionary with the trial
court.  See Miller v. State, 328 Ark. 121, 942 S.W.2d 825 (1997). 
Defense counsel had a month to develop supporting evidence.  He
failed to so and, thus, the burden was not met.  
     Moreover, the State presented evidence that an investigation
had indeed been conducted which led the prosecutor to believe that
the anonymous letter was a ruse.  The letter claimed that the
culprit behind the kidnapping and murder of the victim was the son
of an ex-husband of the victim.  However, the police investigation
uncovered that there were no living sons of ex-husbands of the
victim who could have been responsible for the crime.
     The trial court correctly denied the motion for a continuance
and the motion for a new trial.

                          III. Overlap
     Landreth next argues that the definition for capital murder
found in Ark. Code Ann.  5-10-101(A)(4) (Repl. 1993),
"impermissibly overlaps" with the definition of first-degree murder
found in  5-10-102(A)(2) (Repl. 1993), and, therefore, the jury
was given unfettered discretion to convict him of either offense
which violates the Eighth and Fourteenth Amendments to the United
States Constitution.  This proposition has been squarely rejected
by this court, when the death penalty has been at issue.  See,
e.g., Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995), cert.
denied, 116 S. Ct. 1436 (1995);  Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996), cert. denied, 117 S. Ct. 436 (1996).  Landreth
relies on death-penalty cases for the most part in making his
argument, even though the State waived the death penalty in this
case.  Landreth presents us with no good reason to overturn our
line of death cases, and we decline to do so.
     Landreth does contend, without really developing the issue,
that overlapping in the two statutes resulted in an arbitrary
verdict in this case, but beyond making this conclusory statement,
he does not tell this court how the statutes overlap or explain why
this is reversible error when the death penalty is not involved. 
Surely, giving the jury the option of considering the lesser
included offense of first-degree murder did not inure to Landreth's
detriment.  This point is without merit.

                      IV. Public Defenders
     For his final point, Landreth urges that the prosecutor's
reference to defense counsel as "public defenders" on cross-
examination of a witness resulted in such prejudice that it could
only be cured by the trial courtþs declaring a mistrial.  During
the cross-examination of a witness, the prosecutor asked the
witness if he "had ever told anyone other than the public defenders
that you saw ...."  Defense counsel objected and asked for a
mistrial.  The court denied the motion and offered to admonish the
jury to disregard the last question.  Defense counsel reluctantly
accepted the admonition.  Landreth now claims that the admonition
was insufficient to correct the error.
     This court has previously rejected a similar argument where
the trial court referred to defense attorneys "from the Public
Defender's Office."  See Vaughn v. State, 289 Ark. 31, 709 S.W.2d 73 (1986).  In Vaughn, we opined that the objection made was more
speculative than practical.  Id.  The same is true here.  Any
prejudice caused by reference to the defense counsel as "public
defenders" is speculative at best.  Even defense counsel, in making
the objection, admitted that he did not believe that the reference
should be prejudicial, but he thought others might be prejudiced. 
If there was prejudice, and this court is highly skeptical that any
prejudice attached to the comment, it was not so great as to
warrant a mistrial.  In any event, it was cured by the admonition. 
Sullinger v. State, 310 Ark. 690, 840 S.W.2d 797 (1992); Porter v.
State, 308 Ark. 137, 823 S.W.2d 846 (1992).  There was no
reversible error in this regard.

                         V. Rule 4.3(h)
     The record has been researched for prejudicial error in
accordance with Ark. S. Ct. R. 4-3(h), and none has been found.
     Affirmed.