Conte v. State
2015 Ark. 220
| Ark. | 2015Background
- In May 2002 Carter Elliott and Timothy Robertson were found shot in the back of the head in Conway, Arkansas; Conte was investigated early but not charged until August 26, 2011.
- State theory: Conte killed to eliminate competition for control of his estranged wife, Lark Swartz; about a month later Conte kidnapped Swartz in Nevada and threatened to kill her.
- Key evidence: Swartz’s testimony about Conte’s statements/behavior and the kidnapping; weapons, rare Glaser Blue Tip slugs and related material seized from Conte’s homes and truck; two jailhouse inmates testified Conte confessed.
- Defense argued (inter alia) prejudicial nine‑year prosecutorial delay that cost an alibi witness (Pringle), insufficiency of evidence (no direct forensic/eyewitness link), exclusion of third‑party evidence by motion in limine, and improper admission of 404(b)/prejudicial evidence.
- Trial court denied directed‑verdict motion, denied motion to dismiss for delay, granted State’s motion in limine excluding much third‑party theory, admitted kidnapping and other evidence; jury convicted Conte of two counts of capital murder and firearm enhancements; sentences: life without parole plus consecutive firearm terms.
- Arkansas Supreme Court affirmed on all points; concurrence expressed concern about delay and exclusion of third‑party theory but agreed reversal not required.
Issues
| Issue | Plaintiff's Argument (Conte) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Sufficiency / directed verdict | Jailhouse informants were incredible; no eyewitness, ballistic, or forensic link — evidence insufficient to prove Conte caused deaths | Credibility is for the jury; circumstantial evidence + confessions/supporting facts suffice | Conviction upheld; testimony of informants not so inherently unbelievable and circumstantial evidence sufficient |
| Motion to dismiss for nine‑year prosecutorial delay | Delay caused prejudice (death of alibi Pringle); State had no satisfactory reason and "shopped" the case to multiple prosecutors | Investigation remained active; delay due to ongoing investigation, not tactical advantage; prejudice not shown | Denial affirmed under Lovasco: investigative delay permissible where not to gain tactical advantage and defendant did not prove actual substantial prejudice |
| State’s motion in limine excluding third‑party theories (Zinger issue) | Exclusion prevented presentation of a complete defense; other persons (gambling disputes, affairs, fired employee) were possible perpetrators | Proposed third‑party evidence was speculative, not directly linked to the murders, thus irrelevant and properly excluded | Motion in limine properly granted: evidence must point directly to third party’s guilt; bare motive/opportunity insufficient |
| Admission of evidence about Swartz kidnapping (404(b)) | Kidnapping evidence more prejudicial than probative and was extrinsic bad‑acts evidence | Evidence relevant to motive, plan, and state of mind; general questioning allowed; defense failed to preserve precise Rule 404(b) objection | No reversible error: defense failed to preserve specific 404(b) claim; kidnapping testimony admissible in limited form and cumulative testimony mitigated prejudice |
| Various relevancy/403 objections (weapons, books, dog tags, messiness, Afghanistan call, emails) | Items and character evidence were inflammatory and prejudicial with little probative value | Items showed intent, plan, knowledge, and control over victims; some evidence cumulative and admissible to explain state of mind | Rulings upheld: trial court did not abuse discretion under Rules 401/403; items probative of intent, plan, or ability and not sufficiently prejudicial to require exclusion |
Key Cases Cited
- Lovasco v. United States, 431 U.S. 783 (investigative delay does not violate due process absent evidence delay intended to secure tactical advantage)
- Zinger v. State, 313 Ark. 70 (evidence pointing to third‑party guilt must directly link that person to the crime; mere suspicion or motive insufficient)
- Scott v. State, 263 Ark. 669 (pre‑indictment delay requiring dismissal unless State shows satisfactory reason when defendant demonstrates prejudice)
- Holmes v. South Carolina, 547 U.S. 319 (constitutional limits on excluding third‑party‑perpetrator evidence)
- Armstrong v. State, 366 Ark. 105 (rule applying Zinger: excluded third‑party evidence that created only suspicion upheld)
- Armstrong v. State, 373 Ark. 347 (reaffirming Zinger/Armstrong standard on third‑party evidence)
- Tillman v. State, 364 Ark. 143 (standard for reviewing sufficiency of the evidence)
- Standridge v. State, 857 Ark. 105 (procedures treating directed‑verdict motions as sufficiency challenges)