Larry D. Bellew v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE LARRY D. VAUGHT

DIVISION IV

LARRY D. BELLEW

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-778

June 5, 2002

APPEAL FROM THE MILLER COUNTY CIRCUIT COURT

[NO. 99-262-2]

HON. JAMES SCOTT HUDSON, JR.,

JUDGE

AFFIRMED

A Miller County jury convicted appellant of the first-degree murder of his wife and the second-degree murder of his son. He was sentenced to sixty years' imprisonment in the Arkansas Department of Correction. On appeal he assigns error to the trial court's evidentiary ruling permitting the State to elicit testimony from his brother-in-law, James Michael Larey. We affirm.

Appellant specifically contends on appeal that the trial court abused its discretion by allowing the State to introduce testimony that, while incarcerated and awaiting trial, appellant threatened to press felony charges against Larey's sister, unless Larey dropped a pending civil suit. Appellant argues vigorously that Mr. Larey's testimony relating to the civil suit had "no relevance to the determination of whether [appellant] was guilty of murder." He further claims that the "prejudice should be obvious - a man who stood accused of murdering his wife allegedly threatened to have one of her surviving siblings arrested." This testimony, he argues, was "so grossly prejudicial that it fatally infected the trial and did not afford the defendant the fundamental fairness which is the essence of due process."

At trial, the following testimony was admitted into evidence over appellant's objection:

Yes, I filed suit against the defendant. The first suit was to make sure that I recouped my $17,000 in materials. He called me at home while he was in jail. I told him I was suing to get my money, and he said he was going to get my money. He never flat out asked me to drop the suit. He said he would file charges against my sister for breaking and entering into his home.[1]

The State argued at trial that this testimony was relevant to prove "that [appellant is a] manipulative, domineering, person. You know, and it's relevant because not only did it involve his victims, but these folks...because...[appellant] is that type of person that is manipulative and domineering, and he's gonna have things his way." In response appellant argues that the testimony goes to appellant's character and is "patently not admissible." However, the trial court reasoned "it's to prove a particular character trait of domineering or controlling, which is at issue because his intent and indeed his mental state is the gravamen of your defense." Appellant then announced to the court that he did not know what his defense was, as he had yet to offer a defense. The trial court ultimately overruled the objection, noting "the issue has been raised as properly [sic] and has been dealt with on cross."2 On appeal, appellant argues, as he did below, that the evidence was not relevant, was unduly prejudicial, and constituted improper character evidence. In matters relating to the admission of evidence under Arkansas Rules of Evidence 401, 403, and 404(b), a trial court's ruling is entitled to great weight and will not be reversed absent an abuse of discretion. Cook

v. State, 345 Ark. 264, 45 S.W.3d 820 (2001). "`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." See Ark.R.Evid. 401.

Here, the conversation that Mr. Larey testified about 1) occurred after the commission of the crime, and 2) involved civil litigation that was ancillary to the immediate family homicide. While the correctness of the trial court's ruling on the statement's admissibility is questionable, we decide the issue under the harmless-error rule. Here, appellant made a 911 phone call where he admitted shooting his wife and son. Appellant's son, while gasping for his last breath, beseeched "Help me, I don't want to die. My dad shot me. I can't breathe." He also told the officer tending to him that his mother was dead, and that his father either "got her" or "shot her."3 Additionally, there was ample physical evidence connecting appellant to the murders.

A similar situation presented itself in Landreth v. State, 331 Ark. 12, 960 S.W.2d 434 (1998). There, the defendant, Landreth, had confessed to three people that he had murdered Daisy Galaher; the State also had physical evidence linking Landreth with the crime. On appeal, Landreth argued that the prosecutor, during closing arguments, improperly made reference to the fact that he had not testified in his own defense. Noting that the prosecutor's comment was impermissible, the supreme court nevertheless affirmed Landreth's conviction, applying a harmless-error test.

Practical application of the harmless-error 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). Under the harmless-error rule, when evidence of guilt is overwhelming, and the error slight, we can declarethe error to be harmless. Baker v. State, 334 Ark. 330, 974 S.W.2d 474 (1998) (holding that introduction of testimony regarding the defendant's state of mind was harmless error in light of other evidence introduced at trial); Hicks v. State, 327 Ark. 652, 941 S.W.2d 387 (1997) (holding that admission of additional drug paraphernalia was harmless error where there was overwhelming evidence to support the conviction).

Additionally, this court will not presume prejudice where the appellant offers no proof of it. See, e.g., Tucker v. State, 336 Ark. 244, 983 S.W.2d 956 (1999). In Brown v. State, 259 Ark. 464, 534 S.W.2d 207 (1976), our supreme court found that "although testimony to which defendant made timely objection was clearly irrelevant to defendant's burglary charge, the testimony contained no facts which could possibly have aided in his conviction, and thus admission of such testimony was not prejudicial." Id. at 471, 534 S.W.2d at 211.

Similarly, in the case at bar, the witness knew no facts that connected appellant with the murder of his wife and son. It is true, as appellant pointed out below that the testimony was of no value to the State in proving the charge of murder, but, that being true, we cannot find any prejudice. Although the objectionable testimony's relevance is questionable, it certainly has not been demonstrated that it was prejudicial. Not only is the evidence of appellant's guilt overwhelming, absent the controverted testimony, appellant has shown no specific proof of prejudice resulting from the testimony being allowed at trial.

Affirmed.

Hart and Roaf, JJ., agree.

1 The allegation that Ms. Plant was "breaking and entering" stemmed from her presence at appellant's home shortly after the murders had taken place.

2 The judge's ruling related to the testimony of Yolanda Kay Plunkett (Mr. Larey's sister). On appellant's cross-examination of this State's witness, the lawsuit was discussed in an attempt to show that Ms. Plunkett was biased in her testimony against appellant.

3 The officer testified that appellant's son was struggling for life and was unable to modulate in a tone above a whisper, thus making it difficult to understand his declaration with precision.