Conte v. State

vaguely indicated Wheeler of context and did taken out

statement argument meritorious identify a to have made in order might have

counsel addition, excluded.

the statement not, even if taken out

statement

context, to Wheeler’s defense. detrimental noted, in sub- helpful it was already

As testimony.

stantiating Wheeler’s record that from the can determine

We petition claims in the

none of Wheeler’s | ,nmerit. to set Wheeler failed Because relief, he claim for a meritorious

forth appeal. prevail

cannot dismissed; motions moot.

Appeal Ark. 220 CONTE, Ralph Appellant

Richard Arkansas, Appellee

STATE

No. CR-13-721 Court of Arkansas.

Supreme May Delivered

Opinion 24, 2013, January

On timely filed 30, 2014, appeal. January his notice of On subsequently filed his brief with this court, timely responded, the State timely replied. On September 2014, we remanded this matter to settle the record and rebriefing. ordered 2014 WL 4649590 curiam). (per On October brief, filed his substituted and this matter now properly before the court. appeals Conte now from his 2013 convic- tions and sentences and five points raises (1) appeal: in circuit court erred denying motion to when Conte’s dismiss it pthe found that State a satisfactory had nine-year reason for the in delay bringing (2) charges; the circuit in court erred not granting motion for ver- directed (3) dict; the circuit court erred in granting in State’s motion limine as this violated right to a “complete defense” un- der both federal and state constitutional confrontation, guarantees process, of due (4) compulsory process; and the circuit 404(b) by allowing court erred inadmissible Lark regarding kidnapping (5) Swartz; court when it circuit erred relevancy objections overruled numerous Benca, by: Patrick Benca & Benca J. Rock, appellant. Little for Facts McDaniel, Gen., Att’y by: Dustin Brad early morning May In the hours of Newman, Gen., Att’y appellee. Ass’t for Timothy Robert- Carter Elliott and home in son were found dead Elliott’s BAKER, KAREN R. Associate Justice The victims County, Faulkner Arkansas. to the January appellant, gunshot Rich- were each killed with one liOn Conte, Although was Ralph ard was convicted a back of the head. developed suspect early two in the investi- County jury Faulkner Circuit Court as with the mur- capital gation, charged counts of murder and two counts of he was not theory of the firearm enhancements. The State waived ders until 2011. The State’s with, penalty the death and the circuit court case was that Conte was obsessed over, estranged sought sentenced to two terms of life im- control his wife, previously prisonment possibility pa- without the Lark Swartz. Swartz had murders, Prior to Elliott’s capital role for the and fifteen been married to Elliott. murder, she years each on the firearm enhancements. Swartz told Conte marriage and consecutively. planned run to end their short The sentences were to Ashley, and Ash- daughter, her According ship to the leaving Conte. was case, wedding. Conte killed Over Conte’s ob- theory ley’s upcoming of the State’s in an effort to elimi- Robertson Elliott and that Conte told jection, Swartz testified convince competition for Conte nate high school to her he was recruited out a divorce. pursuing continue Swartz killer, mercenary, for work as a hired month after the mur- one Approximately Corporation, undercover- the Vinnell ders, Nevada, had contin- after Swartz for the States group United operations Conte, to divorce plans ued with testified that he had Military. She further kill planning kidnapped Swartz and that stated logo on his business card ultimately but surren- and himself Swartz will travel.” Over Conte’s ob- gun, “Have to authorities. dered a letter he jection, regarding she testified trial, that she was Swartz testified At in which he claimed he written to her had Elliott from 1974 married to Carter special-operations on a Cambodia presided Conway. couple The 1992 and | mission. She further together, Trey Elliott two children to her that he received brought dog tags divorce, Ashley After their Waldron. parachuting. for passing training Katy, testified that she moved Swartz that while were dat- Swartz testified Texas, City, ultimately to Salt Lake cabin in ing she went with Conte to his Clark, sister, Utah, Gay and her where her Creek, testified that Duck Utah. She brother-in-law, Clark, resided. Kevin explained to her that his Duck Conte City, Swartz met living in Salt Lake While military safe house residence was a Creek Conte, emergency-room physician. She an there special operations; for his friends in and her further testified that Conte broth- cameras, firearms, many surveillance were er-in-law, Clark, went to medical Dr. tape-recorders phone-tapping and devices. known each other together school and had However, and worked in Conte resided in years. ten Conte resided for at least City. Swartz indicated that Conte Carson City, Nevada. Swartz testified Carson “Paladine,”1 and called his used the alias seriously in began dating Conte that she City “Paladine Arms.” home in Carson that January 2001. Swartz testified that she had not been to Swartz testified 2001, April May in engaged two became City after home in until Carson 2001, 19; in a civil married on October the two were married. She testified Granada, George’s, and ceremony St. just like the City home in was Carson ceremony on then married in a church Duck cabin. She testified Creek in the Grena- Bequia, December guns, there were all kinds of knives and After the two were mar- dines Islands. floor; mercenary magazines all over ried, couple continued to maintain their movies; and relationship, marriage, guns post now war over the door long-distance kept Swartz her respective every in their cities. every jacket every pocket and City condominium in Salt Lake because that in the jacket. Swartz also testified Ashley, there at daughter,' her resided like a City home “the—it looked Carson engaged times and was to be married soon. hanging meat hook in the—bedroom and large these silver were] then [there during her relation- Swartz testified that the— into his Paul that were embedded rings with conversations ship Conte she had style-bedpost.” She testified Bunyan including her pasts, with about their Elliott, messy and and filthy homes were relationship with and her relation- both "Paladine,” record, spell "Paladin.” dog tags in the Exhibit No. 1. We note that Conte’s 17-19, May guns military parapher- and 2002. Swartz testified that covered 19, 2002, seeing May Swartz testified that after on or about she learned of nalia. things, “relationship began their to Elliott’s and Robertson’s deaths and trav- these time, Conway. During eled to this deteriorate.” she had communications with Conte and he was Swartz testified that around Valentine’s aware of the Swartz murders. testified Day, Swartz told Conte she City, that once she returned to Lake Salt very going was unhappy “was [she] told me that a bullet that is left “[Conte] a divorce.” She testified that when get next signature to the victim’s head was the divorce, told she wanted a she |fi[me] quiet of the killer and for to be crying, begged was her not to leave about it.” him, |sbe and said that he would humiliated Next, very upset. objection, and he was Swartz further over Conte’s Swartz tes- testified that she and continued to tified that when she arrived home separation their on communicate after work June Conte was at her home, to her with gun, scope Conte had access combination lock armed with a it, gun. on the door of her' condominium in Salt silencer on and a stun She testi- down, City. Lake She testified that while fied that Conte tied her threatened flowers, himself, separated, gifts, Conte sent to kill her and and forced her to - jewelry, something. and cards to her home and work drink Swartz testified that place. up She testified that she found notes when she woke she was handcuffed in reading, from him in books she was on her the back of Conte’s truck. She further drawer, in her that while refrigerator, lingerie total- she was and out of consciousness, very hundred items. Swartz was ing distraught over one also time, during break-up this there about their threatening testified that party Ashley April to kill her and .himself. Swartz testified engagement 13, 2002, Conway. eventually up in Swartz testified that that she did wake and was party rings Elliott attended the and that Conte handcuffed to the on his “Paul Bu- nyan” City. was aware of this. Swartz testified that on bed in Carson Swartz testi- 17, 2002, her, family that did send her April Conte called and she fied she not gunfire guns messages could hear and machine in emails but that wrote to Conte family She that her and friends from her email ad- background. testified Conte indicating had met a man Afghanistan, told her that he was dress she SUV, Internet, him, killed pinned going under an ATV or was over the had sex with moment, him, hiding. to be killed at and wanted to and that she was now in tell Swartz he loved her and that —“this Swartz further testified that Conte had family, her with Elliott and her might pictures be the last time we ever talk to each along pictures ex-boy- or with of another other.” Swartz testified that on around 2, 2002, friend, May City though brought came Lake even she had never Conte to Salt pictures to Swartz where he had been shot those to home. Swartz show eventually family released after her Afghanistan. while was kidnapped discovered that Conte had her May On Swartz filed for divorce. police. and called during separa- Swartz testified that their Clark, brother-in-law, divorce, Kevin Swartz’s tion and after she had filed for she met in medical knowledge and had of each other’s testified that he and Conte Conte for school and that he had known Conte schedules. She testified Conte Clark, twenty years. According not be the weekend over to supposed working to again.” Ashley her going for the never to see a contract killer he was Conte said phone spoke testified that she States for the United Corporation Vinnell. Ashley “out of it.” her mother who was many sto- and had told Clark government that she received emails also testified had shown operations of his ries kidnapping the time of the during Swartz he had earned. Clark and awards medals to authorities. that she turned over 17, 2002, while April that on testified separated, were Conte and Swartz Conte concerning also testified Trey Elliott been relayed that he had called Clark kidnapping. Trey testified Swartz’s under an trapped SUV Afghanistan, on June |8father’s after his murder |7and hit bul- he had been several Trey kidnapped his mom. Conte that he was also told Clark lets. Conte he received a call from his testified that would meet Clark flying back Utah mother, drugged, sounded and she she a few hours to have the office in at his said, Trey me.” testified that got “Conte’s Conte, met took bullets removed. Clark phone, on the spoke he then with Conte x-rays, then re- hospital him to the very upset and said he had eight removed to his office and turned kill huge going mistake and was made that the bullet nine bullets. Clark testified Trey get himself. testified that he tried gunshot not consistent with wounds were begged Conte to calm down and like but “looked had been wounds to kill his mother. incisions.”

inserted with small testified that he is Gathright Richard regard kidnapping, to Swartz’s With brother and was aware that in the Swartz’s that he received a call from sepa- testified 2002 Swartz and spring Clark 21, 2002, re- Ashley, on or around June in the process rated and that Swartz was mother, had her porting Gathright that Conte divorcing Conte. sister, Clark, call Clark testified asking Gay Clark to Conte. and his brother- that his Clark, reported in-law, and Conte that he called Conte Dr. Kevin were at his home Lark, ok, Beach, Florida, to a that “he had she was tied when he Pompano testified that he told Conte chair.” Clark learned of the murders of Elliott and Rob- coming, fight ertson; not to police then called three or Clark them, go times, untie Swartz and sit on his but could not reach him. Gath- four in his underwear. Clark testified porch further testified that returned right forty-five that was the last time talked to Conte. min- approximately call Clark’s Creek, Utah, that he received a call Clark also testified Duck utes later from Conte’s Sunday on the after the mur- Gathright from Conte also testified phone. land-line phone land-line at his kidnapping. Gathright ders Conte’s about the testified residence, Utah, Duck and Conte had told upon Creek that he flew to and Swartz’s him he had car trouble. release went with Swartz to the Utah her Department Sheriffs to collect some of 21, 2002, Ashley testified that on June personal belongings. Gathright further mother, Swartz, not reach her she could he received emails from testified that looking and contacted Conte for her moth- during kidnapped the time she was Swartz Ashley that when con- er. testified she appear that did not to be from Swartz. Conte, “your he informed her that tacted Brown, Rick with the Nevada up City Sergeant a man in Park and picked mom was an inves- slept Department Safety, she with him and she killed him and of Public Douglas County Sheriffs money tigator her and I’ve taken her with given I’ve Douglas County, in Nevada. Brown you’re down to the border in Mexico and Office Ashley’s keep together and them responded that he and she is the cen- testified kid- regarding Swartz’s 2002 ter of his life. Trey’s calls Brown testified that offi- custody, After Conte was napping. cers also located Glaser Blue Tip Safety Brown, with Arkansas law enforce- along Slugs and white towels. ment, residence. Brown searched Conte’s McLemore, Charles a retired officer officers searched testified that the Police, with the State Arkansas testified |3Podge home and his silver City Carson | U|2002 that in he was a criminal investiga- seizing Brown pickup truck. testified tor for the State Police. He further testi- large stockpile weapons, of and a book Douglas County, fied that he traveled to Killers, titled, “Quiet Weappns Silenced Nevada, participated and in the search of about how to execute Espionage” War and City residence in Carson June people quietly. Brown testified that offi- that, during 2002. McLemore testified piece a brown of cardboard cers located search, large officers seized a number of Elliott, that stated “Edmond Carter Con- firearms, firearm, including a 9mm 9mm

way, phone with Elliott’s num- Arkansas” Tip Safety Glaser Blue Slugs, clip and a address written on it. Brown ber and clip ammunition that held 15 bullets. The further testified that officers located a contained 14 bullets. McLemore further piece paper manilla colored with “Det- testified that with 15 bullets in a clip, one co,” name, which was Elliott’s business’ chamber, bullet could be held for a telephone written on it and a number writ- total of 16 bullets. McLemore testified ten beneath it. Brown further testified that officers located a .45mm firearm and May that officers located documents dated ,45mm Blue Tip Safety Slugs. Glaser 11, 2002, general background infor- McLemore testified officers also locat- Conway County, mation on and Faulkner suppressor ed a sound for firearms which with online included: documents History book titled “The of Torture and police frequencies, search results for radio Executions.” frequencies, frequencies; and fire docu- Barrett, ments with results from Federal Com- Jim a lieutenant with the Con- way munications that were down- Police that on Department, Commission testified (cid:127) showing signs loaded the call and radio May in the Sergeant frequencies expiration issue and Detective at the Conway Division Police Services; Conway Emergency dates for the Department responded to the death home; county frequen- law enforcement and fire the Elliott Barrett investigation at cies; Mapquest maps results for .45 testified officers located unfired Conway County, and Faulkner Arkansas. mm in a Tip Safety Slug Glaser Blue base- Brown also testified that officers located a cap ball at the scene. Barrett printed May Internet article dated twenty-three years that in his in law en- 2002 on the double murder of Elliott and type forcement he had never seen this Robertson. in the of a ammunition used commission crime. He also testified that the Glaser

Brown testified officers also expensive Tip Safety Slugs Blue piece searched truck and located a gun shops, hunting sold in not retail and Inn, “Conway’s Hojo of with Room paper Barrett further testified that he 204,” stores. 7 of Little “Channel Channel Rock,” was involved with the search of also “Log Paper” written on Cabin inCity home in Carson June 2002. it. testified that found Conte’s Brown also officers sample wherein Barrett testified that he took a printouts of several emails Conte Dodge Silver explains anything bugs to Swartz that he will do and soil from Conte’s suspended Other than the geologist epide- and an sentence. to a truck to send sample charges, had Glover testified that he pending if the miologist to determine Glo- country. prior felony of the had eleven convictions. specific region come from a helpful high that were that he went to were obtained ver further testified No results but had not investigation. school with Elliott’s children high seen them since school. Glover testi- firearms and tool exam- Hargis, a Steve pod met in the medical fied that he State Crime Labora- at the Arkansas iner played in 2012 and cards and visited Hargis testified tory, also testified. 11gConte The two were housed frequently. tested, that, and firearms of the barrels in the medical unit for a month together they had been demonstrated none that when he and a half. Glover testified Elliott the shots that killed used to fire realized who was and what he had Hargis further testified and Robertson. with, Conte, he asked “Did charged been rare Safety Slugs Glaser are Tip that Blue ‘Hell, yeah, you do it? And said [Conte] expensive. ” they have no evidence.’ Glover testi- but Erickson, Deputy A. Chief Stephen Dr. that the author- fied that Conte also stated at the Arkansas State Medical Examiner weapon “they’re ities had no about to Laboratory, per- testified that he Crime They’re going run out of time. to have to on Elliott and Rob- autopsies formed the go.” let me Glover further testified testified that both men ertson. Erickson that authorities “had explained to the back of gunshot died from wounds vehicle, him about a about an questioned each of their heads. Erickson testified checking his vehicle for Ar- anthropologist very powerful that the bullets used were bugs they put kansas to see if could a tremendous amount of and “created Arkansas], they vehicle and he said [in that, damage.” Erickson further testified vehicle.... wrong checked .the [Conte] he upon reviewing x-rays, suspected truck, grill .the for ... said had the bullet, Tip to find Glaser Blue going you specialist.” know a Glover testified that in and he did. He further testified his that he was not familiar with the word he has seen thousands years practice, him “anthropologist” before Conte told but gunshot wounds had seen this anthropologist checking about time, type during of bullet one his fellow- bugs. truck for Glover further testified ship, damage and the done was “forever him two that Conte told there were vic- impressed” on his mind. Erickson also tims, Glo- bodyguard. Elliott and Elliott’s testified that the wounds in this case were that he not aware of ver testified atypical because there was no evidence of Robertson’s death until told powder gun. or smoke from the He ac- there were two victims. Glover also testi- atypical finding by counted for this Reeves, prisoner, another fied Charles towels found at the scene that were used also heard confession. filter the Erickson gas and smoke. not have de- bodies did Next, Reeves testified that he Charles injuries suggesting fensive wounds or prior felony two convictions and at the struggle. charges pend- time of trial had additional that he Finally, presented testimony ing against the State him. Reeves testified the Faulkner Rusty pod from two inmates. Glover testified was in the medical trial, County jail with and Glover. that at the time of he was in the little interac- County jail pending felony Faulkner do- Reeves testified that he had mestic-battery revocation of a tion with' but did overhear Conte charges and

695 conjecture. or discussing speculation Conte’s case. Id. Evidence and Glover state enough that he heard Conte is substantial when it is forceful to Reeves testified other, on him” “they anything compel way didn’t have a conclusion one or the a about a vehicle beyond conjecture. and there was discussion and suspicion Id. We being wrong searched vehicle. only testimony that was need consider which heard further testified that he Glo- supports | Hguilty. Reeves the verdict of Id. Fur- ask, “Well, you did do it?” and Conte ther, ver may circumstantial evidence provide “Yeah, | isit, I ain’t responded, did but conviction, support a basis to but it must conversation, After got proof.”. no this be consistent with the guilt defendant’s Reeves testified that Glover asked Reeves any and inconsistent with other reasonable conversation, if he had overheard conclusion. Id. Whether the evidence ex- that he had. Reeves Reeves confirmed every hypothesis cludes other reasonable any testified he did not know of further jury Finally, is left to the to decide. Id. people involved in Conte’s case. credibility of witnesses is an issue further testified that he did not Reeves jury not the court. Id. The trier authorities, prosecu- contact the but the fact free all part any is to believe tor’s office contacted him. Reeves also testimony may ques- witness’s resolve any that he was not offered le- conflicting testimony tions of and inconsis- niency testimony. or a deal for his tent evidence. Id. charged August On mind, With these standards we convicted of the murders of El- turn first on point appeal. to Conte’s Robertson. liott and challenge to the sufficien primary cy supporting capital- of the evidence Appeal

Points on murder convictions focuses on the two in Sufficiency I. the Evidence Reeves, mates, Glover and who each testi fied that Conte confessed the crimes. Although sufficiency ar trial, following At made the motion argument appeal, is his second gument for directed verdict: double-jeopardy we address it first due to The motion for di- State, Defense Standridge v. 857 Ark. Counsel: concerns. verdict is made as to both rected (2004). 161 S.W.3d 815 We treat pursuant capital counts of murder motion for a directed verdict as a chal Rule 33.1 of the Arkansas Rules of sufficiency of the evidence. lenge to Procedure, along with the Criminal State, S.W.3d Whitt v. States Due Process Clause United (2006). challenge reviewing through Amendment 14 Constitution evidence, sufficiency of the this court of the and the Due Process Clause light in the most assesses the evidence Arkansas Constitution. favorable to the State and considers verdict supports The motion for directed the evidence verdict. upon the State’s insufficient Tillman v. S.W.3d based that Dr. caused the death judg proof This court will affirm a capital as to the person if of another ment of conviction substantial involving in the count charges it. evi murder support Id. Substantial exists involving the count which sufficient Mr. Elliott and dence is evidence is of and, also, will, as to the character that it with rea Mr. Robertson force and degree offense of first certainty, compel a conclusion one lesser included sonable other, lesser offense resorting to murder or other way or the without nature of appeal scope to the causation. I bound on the issue of involving The State that his motion. Arkansas cases indicate directed-verdict think the credibility that the issue of argues what element is further have to talk about we jury, not is an issue for the that’s—what this motion of witnesses lacking and Finally, argues the State this court. addresses. supported by convictions are sub- Mr. testimony of Glover put If we stantial evidence. urge I and Mr. Reeves aside—and they are two to do so because Court Here, challenge to the credibility-impaired individuals very sufficiency supporting the evidence of | ^lengthy history them criminal given credibility of focuses on the convictions try incentive to fabricate to and their Reeves. As acknowl Glover and prose- with the position to better their | credibility is an edges, the of ^witnesses I contest their cutor’s office. don’t jury, and this court will not issue for the of- testimony they haven’t been credibility second-guess the determina by prosecutor, but anything fered the fact-finder. Stone v. tions made nevertheless, gentlemen those know (2002). 661, 74 S.W.3d 591 system. try manipulate how to part free to believe all or of jury The just disregard I the court to So ask any testimony, ques to resolve witness’s testimony purposes for the of their testimony inconsis conflicting tions of that, the motion. Past there is no evidence, and to believe the State’s tent Dr. evidence that connects of the facts rather than the defen version these two homicides. however, contends, dant’s. Id. Conte any opening, As I said in there’s not nonetheless disre this court should witness, forensics, any any not eye gard testimony of both Glover and that connect him to the ballistics determining whether substantial Reeves Nobody puts him in Arkan- homicide. because supports his convictions at the time. All the state’s case sas “clearly He ar they were unbelievable.” and all the state’s evi- occurs Utah they jailhouse “snitches” gues that dence, crime scene and aside from the with extensive criminal histories and that Conte, dealing crime lab with Dr. they against hope Nevada, and in most of occurs Utah receiving a reduction in their sentences. the homicide. which deals with I know will make the circumstan- appeal, disregard we will testi On on Dr. argument tial case based mony jury has found to be credi subsequent to the Conte’s conduct inherently improbable, ble if it is so homicides, but for our record I move physically impossible, clearly or so unbe element for a directed verdict on the that reasonable minds could not lievable capital causation on both counts of State, 351 differ about it. Williams v. included murder and both lesser weigh The 91 S.W.3d 54 counts of murder one and other province of evidence lies within the ing count.2 included by its jury, and this court is bound credibility argues regarding The moved for determination State jury Id. The is free to believe verdict on the issue of the credi- witnesses. directed testimony, now all or of a witness’s bility part of Glover and Reeves and is at of the evidence. renewed his motion for directed verdict the close 2. Conte also testimony Pringle not render 2002 and that told Investigator does inconsistent Id. Brown that Conte could not have been as a matter of proof insufficient law. involved in the murders because he had Here, urges this court to disre- Conte driving seen Conte his truck three or four testimony as gard Glover’s and Reeves’s 19, 2001, May on day times the before the However, both “inherently unreliable.” murders. Conte asserted that because he Reeves testified that had Glover and prejudiced by nine-year the delay in anything in return for promised not been filing the charges, State had the burden to addition, testimony. pro- their Glover a satisfactory delay. show reason for the details about the crimes that were vided noted that two prior prosecutors Conte and that were consistent widely not known charges (cid:127)had declined to file against trial, presented with other evidence at asserted no new evidence was the and insects testing such as the soil discovered after the case had been re- truck, |17had and that Conte Conte’s | 1sprior by prosecutors. viewed these the stated the authorities had tested responded corroborated The State that the case had wrong truck. Reeves also Thus, testimony. testimony investigation their been under since 2002 and Glover’s unbelievable, that, clearly Conway Department and it was for the Police had credibility. presented prosecuting their the case file to the jury the to determine attorney’s and, office on several occasions light in the most favorable viewed When prior prosecutors while the had refused to to the the evidence established charges, prosecutor file the current filed crimes and connection to them and charges reviewing after the case file. jury evidence for the to convict is sufficient At the hearing on Conte’s motion to dis- Thus, we hold that substantial evi- Conte. miss, Barrett he was the supports dence Conte’s convictions primary investigator on the case and that sentences, and the circuit court did not err open it had remained an active and inves- for ver- denying Conte’s motion directed tigation day since the of the murders. dict. Barrett testified that there had been con- meetings to determine strategy tinuous Motion Dismiss: II. angles whether different leads needed Delay Nine-Year Barrett that he pursued. to be denied point appeal, For his next on intentionally delay procure caused a asserts that the circuit court erred Conte the unavailable witness and claimed that it motion to based when denied his dismiss Pringle’s he had not learned of death until delay. charges Because prosecutorial on Arkansas with flying he was back to Conte for the 2002 against were not filed following arrest on the murder August until murders charges. trial. charges prior moved to dismiss the hearing After the on the motion dis- motion, argued key In his that a miss, the circuit court took the matter witness, Pringle, alibi William had died then entered a let- under advisement and delay in prosecutorial 2008 and that 27, 2012, denying April ter order on filing charges gave the State a “distinct provides: motion. The order advantage” in this case in violation of the 27, 2012 order April Due Process of the Arkansas and The circuit court’s Clauses Fol- denying as Conte’s motion to dismiss. United States Constitutions. Conte ... hearing mo- Pringle, neighbor lowing [Conte’s] serted that at his Duck residence, past which was held this July was interviewed in tion to dismiss Creek delay. contends that law en- opportunity to the

Tuesday I have had “shopped” which were intro- forcement the case to three dif- exhibits review the the circuit prosecutors, motions and briefs which ferent elected and the duced parties. “shopping” Based this as a “satis- court condoned provided may accept this you delay.” this review also upon factory reason ruling regard letter as the Court’s the State conceded its contends to dismiss on the defendant’s motion to the circuit court that “no new pleadings currently pending. charges the developed credible evidence” was ever day the the the State had the same case delay the in Lassiter contends that Mr. filed, 26, August felony information was against the defendant has filing charges 2011, the ability day as it did on June prejudice in a to his resulted po- that a law enforcement interviewed Conte at the Specifically defend himself. witness, Pringle, County, Mr. s Douglas tential alibi one Nevada Sheriff Office Further, away in 2008. The State on the the passed regarding homicides. Conte delay daughter, Ashley, hand contends that the ac- other asserts that Elliott’s by effort the state tively prosecu- not the for the current campaigned result advantage simply but to obtain charges brought tor so that would be by which caused circumstances against Finally, Conte contends Conte. Specifically, could not control. Detec- surrounding that the circumstances the tive testified that this matter Barrett charges being against filed were fun- investigation since ongoing has been an damentally unfair under our constitution May, 2002 and the events occurred and his motion to should have been dismiss that from time to time he would obtain granted. | ^approach information and additional responds The State that Conte has Prosecuting Attorney the Office of the argument appeal. on The changed his Eventually filed. charges being without that, appeal, on does State contends prose- to this presented this matter was not even mention the death of his alibi August, cutor’s office in 2011 and the witness, 12nPringle, argues but now instead testimony The charges were filed. delay prejudiced by that he was the be- clearly indicates that Detective Barrett prior prosecutors cause two felt there Pringle

was unaware that Mr. evidence, law needed to be more enforce- passed away. case, Ashley the shopped ap- ment Therefore, language under the of Scott the current peared campaign ads for State, 669, v. Ark. 263 566 S.W.2d 737 Thus, prosecutor. the State asserts that (1978) 674, page at preserved not for review. issue is We preju- Scott able to show

“Since agree may change argu- not his unless the state dice to defense by argu- ment on and is bound appeal satisfactory Therefore, can a come forward with ments made below. we will not delay charges for the reason allegations concerning Ashley’s address should be dismissed.” campaign prosecutor ads for the current was not made to argument because that It is the conclusion that Court’s v. the circuit court. See 368 presented satisfactory state has a reason Buford 87, 243 S.W.3d 300 delay. the circuit by argues appeal prejudiced Conte asserts that he was denying court his motion to dis- Pringle’s intervening death and the State’s erred satisfactory delay. argues failure to reason for miss based on the show view, prejudice investigative delay and that In our he suffered severe is funda mentally delay unlike present satisfactory undertaken the State did solely Government delay filing charges. gain “to tactical ad reason for the accused,” vantage over relies on the State’s admission United “no new credible evidence” had been dis- States v. Marion, U.S. ^[307] at 324 (1971)], nine-year delay [92 S.Ct. L.Ed.2d 468 during covered precisely ... because “essentially signed investigative delay the court asserts that is not so one-sided. Rather than shopping Barrett the same case to deviat off on ing elementary of “fair prosecutors.” three elected standards different play decency,” prosecutor abides remain Turning to the merits of Conte’s by them if he refuses to seek indict Lovasco, ing argument, in United States completely ments until satisfied 97 S.Ct. 52 L.Ed.2d U.S. prosecute that he should and will be able (1977), that a Supreme the Court held promptly guilt beyond establish a rea delay ongoing investigation due to an of Penalizing prosecutors sonable doubt. of deprive the case does not the defendant who defer action for these reasons would preju even if the defense was process, due goal “orderly subordinate the of expedi 795-96, of time. Id. at lapse diced the tion” to that of “mere speed,” Smith v. noted, 97 S.Ct. 2044. As Court “[t]he States, 360 United U.S. S.Ct. [79 when the avail determination of 991, 3 L.Ed.2d This the 1041] is sufficient to ob prosecution able to require. Due Process Clause does not cut, is seldom clear tain a conviction prosecute We therefore hold that to persons reasonable often will reach con following investigative delay defendant 793, 97 flicting conclusions.” Id. at S.Ct. deprive does not him of process, due 2044. The Court held: even if might his defense have been generally of a nec- prejudice Proof prejudiced by lapse somewhat of essary but not sufficient element of the time. claim, pro- that the due process due cess must consider the reasons inquiry Here, asserts that he suffered Conte delay |21as prejudice for the well as the prejudice prosecution severe and that the requires ex- to the accused.... It no delay gain advantage. used the tactical argument prose- tended to establish that The record demonstrates that Lieutenant cutors do not deviate from fundamental approached Barrett testified that he two conceptions justice they when defer prosecutors different with the evidence they until have seeking indictments against attempt bring in an Conte an probable cause to believe accused is him, and he stated that charges against guilty; unprofessional indeed it is con- investigation the case was under continual prosecutor duct for a to recommend an prosecutor until the current chose to file probable indictment on less than cause. charges. they Barrett stated that continu- equally prose- It should be obvious that strategy up to come ously meetings held duty charges cutors are under no to file He investigative angles. with different probable as soon as cause exists but intentionally also testified that he did not they before are satisfied will be unavailability delay procure the case to suspect’s guilt able to establish the be- Barrett stated that he first of a witness. yond a reasonable doubt. Pringle had died when he was learned back to Arkansas fol- regard investigative delay, transporting With Conte lowing arrest. In addition to the Court held: hours, he Dr. saw approximately court reviewed circuit testimony, ^statement, summary well as a neighborhood garage as Conte at summary July his Brown’s Sergeant but Dr. would not look dumpsters, Conte stated: Pringle, which interview with Pringle Mr. if Dr. at him. I asked hrs., Inv. while Cov- at On 7-02-02 had ever talked to about inventory of seized erley completed doing govern- work for the military or items, a brief interview with I conducted that he had not. ment and said me Pringle Mr. informed Pringle. Mr. Also, during testimony we note that with Dr. been a friend that he had trial, Sergeant Brown testified at and he has sold him six years for several have said that Conte' could not Pringle parcel to include the pieces property, Conway the weekend of the crimes been Pringle is. Mr. where his cabin him in Duck Pringle because had seen possible Dr. was a heard that Arkansas, Specifically, Brown testified Creek. in homicides suspect driving media. He informed told him that he saw Conte through Pringle the local that Dr. could he knew me that times that weekend. his truck three or four involved because he had not have been Scott, three-year supra, there was May. Mr. him that weekend seen crime and the delay between the date Dr. had his Pringle explained that The charges which were filed. State did on or about from the cabin truck towed dismiss, motion respond not to Scott’s to year. He said that he May 20th of this provided delay for the and no reason was driving his truck seen Dr. Conte had good the State had cause for or whether day the the or four times before three that, delay. the the ac- We held Pringle Mr. said that truck was towed. l^where prevented using was two alibi cused with Dr. that he not talk did witnesses, him, one whose whereabouts were weekend, to about that but talked 19th, weekend, 2002. Mr. Prin- on June and the other who had died a not known up crime, Dr. came back gle stated that half the State year and a after during the week of the 19th to the cabin required provide been to should have by the house. stopped satisfactory delay. for the The reason him Dr. Conte told that he that, He said that case was remanded with directions May, talk in stopped by not be- unless the State demonstrated that monthly not have his mort- cause he did than delay gain reason for the was other and he was embarrassed. gage payment accused, advantage against a tactical him about truck Pringle asked Mr. be dismissed. charges should thought told that he and Dr. Conte 315, In Bliss v. something had done to his that local kids (1984), a five- S.W.2d 936 we addressed attempting to steal it. He clutch while case, delay. In that minor children year Pringle Mr. that on 06-19-02 Dr. told custody in parents’ were removed from the brought newspapers him two allegations on of sexual abuse. 1978 based acting strange. a bit He seemed to be However, stepfather the mother and not look him in the said that he would charged rape of the children until him that he was eye. Dr. Conte told that, although delay 1983. We held day, area the next leaving the but it could not be said unusually long, hurry get up he was in a to the said intentionally de- prosecution that the Internet. cabin to talk with Lark on the 06-20-02, advantage a tactical layed gain at order to Pringle Mr. said prejudi- and we found no was in Duck parents, over the Creek weekend and that Pringle had seen driving cial error. his truck couple “a of times” that weekend. Additionally, jurisdictions other have Moreover, the record demonstrates that recognized speculation that mere about the there was no evidence that the State inten- loss of favorable evidence is insufficient to tionally delayed prejudice. bringing charges claim of State v. to obtain support a (Utah 2007). Hales, advantage a tactical over If a Conte. The rec- 152 P.3d ord demonstrates investigation because a re- prejudice pre defendant claims ongoing throughout years, or mained viously missing available witness is now law unavailable, Pringle’s enforcement was unaware of the defendant must provide arrest, death until Conte’s of the law en- expected content witness’s testi forcement previous made contact with mony and indicate how that document or prosecutors, and that a decision was witness would have aided the defense. Id. made to resubmit the case to the new prosecu- The defendant must also show causation tor, charges which resulted in the by establishing being that he could not have filed. There is no delay evidence of obtained the crucial evidence from another gain a tactical advantage. As the court in source and that the evidence would have explained, Lovasco decision to file gov “[T]he been available if it were not for the charges, criminal with the awesome delay filing charges. ernment’s Id. conse- entails, quences requires it uniformly agreement are consideration Courts range of a wide of factors in addition to the prejudice proven actual must be to ad case, strength of the Government’s in or- a due-process pre-indict vance claimj^for der to determine prosecution delay. ment State ex rel. Knotts v. Fa 12awhether cemire, would be in the public interest. Prosecu- 223 W.Va. 678 S.E.2d tors often need more information than therefore, proof of a suspect’s guilt, before case,. Applying present our law to the deciding whether to seek indictment.” us, based on the record before Conte has Here, us, on the record based before the to that he failed demonstrate suffered sub- delay in filing charges continuing while to resulting prejudice stantial and actual crimes, investigate the did not create the delay. alleged prejudice, from the The improper advantage tactical that violates Pringle’s testimony, of was before the loss process. due jury. opening closing In statement and sum, In the circuit court did not abuse counsel, argument, brought out point, its discretion on this and we affirm in Pringle placed the fact that Conte Duck the circuit court. during question. the weekend in Creek Additionally, expected content of Prin- III. The State’s Motion in Limine gle’s statement and that the statement point appeal, on pro- would have aided Conte’s defense For his third that the circuit court erred viding Conte with an alibi before Conte contends Further, jury. granting has not shown that the State’s motion in limine to introducing not be obtained from evidence prevent the evidence could persons may Dr. that that have committed another source as Clark testified third day pretrial hearing called him from Duck the murders. At the on Creek murders, that January after the and Barrett the State asserted Pringle likely try had told him could not the defense would to show by the have committed the murders because he the murders had been committed crimes; Dean after the strange acted with whom Elliott Cook a woman husband affair, having an some- that Elliott termi- allegedly employee was an had been West with, or business Elliott had done one that week before the murders nated the gambled with and that he had someone Elliott; kill and Elliott threatened to West The State asserted by. been assaulted disagreement had a and Keller Johnson investigated had been that these matters involving litigation property over some there, was no evidence by police and estate. Johnson’s father’s case. liability this third-party support irrel- Thus, that it was contended State discre courts have broad Circuit be excluded. and should evant evidence issues, evidentiary deciding tion in be able that he should responded admissibility evi rulings their showing that there evidence to introduce absent appeal are not reversed on dence po into other investigation was a lack of State, v. an abuse of discretion. Laswell kidnapped once Conte suspects tential Zinger 404 S.W.3d 818. investiga that the argued Swartz. Conte State, 320, we v. 313 Ark. 852 S.W.2d and that Elliott’s busi incomplete tion was admissibility of the standard for discussed alleged affair should dealings and ness incriminating persons third ar investigated further. Conte have been held that against the State’s case gued that may introduce evidence defendant deprive [a] and that circumstantial b^was type that someone other present tending this to show opportunity him of the right present violated his of evidence committed the crime than the defendant his constitutional complete defense charged, but such evidence is inadmissi- confrontation, process, and rights due directly guilt to the points ble unless it relied on the compulsory process. Conte which does party. of the third Evidence appeals’ decision Smith court an inference or no more than create (1990), 37, 801 S.W.2d 655 App. guilt is inad- conjecture as to another’s that he be able to and asserted should missible. The circuit court present evidence. ruled, “If in limine and granted the motion investigation your it’s contention require rule does [T]he you argue I think can completeness, lacked evidence, remote, be however must ad- gambling and af getting that without party’s possible to show a third mitted deals. I think that’s fairs and business culpability ... of mere mo- [EJvidence motion, the circuit In granting clear.” to commit the crime opportunity tive or applicable.3 was not court held that Smith more, without will not person, in another trial, made At the conclusion a reasonable doubt about suffice to raise that a maii named following proffer: be direct guilt: there must a defendant’s jaw Raymond Merrill broke Elliott’s over linking the or circumstantial evidence debt; prior to Elliott’s death gambling perpetration to the actual person third $50,000 pay- from him for

man demanded of the crime. debt; Elliott was hav- gambling ment of a 75, Ark. at 852 S.W.2d at 323 Zinger, 313 Danny with Cook’swife at the ing affair Wilson, 117, 367 (quoting State N.C. crimes, confronted Elliott time of the Cook v. (1988)). with and S.E.2d 589 relationship over the Cook’s wife 70, State, Zinger 852 S.W.2d 320 predates v. 3. We our decision note that Smith State, may In v. 358 Ark. sisters played Walker have a role in Dashun (2003) 17, 752, 12, Armstrong’s 118, 110 S.W.3d we da death.” 366 Ark. at explained holding Zinger. our 233 S.W.3d at 637. may

We have held that a defendant Here, Conte did not offer any evidence tending introduce evidence to show that to connect any of these third parties to the other than someone the defendant com crime. Other than allegations, bare nei- charged, mitted the crime but such evi pretrial trial, ther at the hearing nor at did dence is inadmissible unless it points proffer evidence to any link third directly guilt party. to the of the third party Further, to the crimes. the circuit which Evidence does no more than cre and, eourt has broad discretion based on ate an conjecture inference or as to an us, the record before the circuit court did guilt [Burming other’s inadmissible. not abuse its discretion. We affirm on this State, 95, ham v. 342 Ark. 27 S.W.3d 351 point.

(2000)]; State, 70, Zinger v. 313 Ark. U0U(b) IV. Evidence: Swartz’s (1993)(citing 852 S.W.2d 320 State v. 2002 Kidnapping Wilson, 117, 322 N.C. 367 S.E.2d 589 (1988)). require This rule does not For his point appeal, fourth evidence, remote, however must be Conte asserts that the circuit court erred party’s admitted to show a third possible in allowing evidence regarding kidnap culpability; evidence of mere motive or ping Swartz. The responds State opportunity to commit the crime in an preserve Conte failed to this issue for re more, person, other without will not suf view and it is also without merit. fice to raise a reasonable doubt about trial, Prior to filed a motion for guilt. defendant’s There must be direct 404(b) production of Ark. R. Evid. evi- or circumstantial linking dence. responded The State might that it person

third to the actual perpetration seek to introduce evidence that Conte had crime. kidnapped Swartz. Conte made no writ- Armstrong 347, 284 ten or oral motion in limine concerning this (2008) II), S.W.3d 1 (Armstrong we reaf evidence before trial. During opening holding firmed our in Zinger and held that statements, both the State and men- holding our consistent the United kidnapping. |2ciHowever, tioned the when |j.RSupreme States holding Court’s in the State began question Swartz about Carolina, Holmes v. South 547 U.S. kidnapping during her direct examina- 126 S.Ct. 164 L.Ed.2d 503 tion, objected, “I asserting just wanted to lodge objection an overall to—.” Zinger held that the evidence a defen The circuit court then ruled that the State dant wishes to admit prove third-party was not go through allowed to the incident guilt sufficiently must connect the other step-by-step but was allowed to ask II, person to the Armstrong crime. general questions: (2008); Ark. at 284 S.W.3d at 5 see I) trying kidnapping. [W]e’re not on Armstrong also v. (Armstrong State Let’s 105, go through blow-by- don’t (2006), Ark. 366 233 S.W.3d 627 .on blow, If step-by-step. you want to ask appeal, direct we third-party considered couple her general questions death Armstrong threats alleged some— happened, about what what the result should have been admitted at his trial and was, that’s —. concluded that it did “no more than create suspicion conjecture a or that the Waller

704 re- evidentiary on five issues ruling I its through really quickly. it move

Let’s know, into, you every go relevancy. to garding don’t want detail. provides “[al

Rule 403 relevant, may evidence be excluded though move on. getin and Let’s—let’s substantially out probative if value is its that Conte The record demonstrates by danger prejudice, of unfair weighed argument or objection further made no issues, misleading or confusion of issue. addition regarding this delay, jury, or considerations of undue witnesses, Swartz, Ashley, Trey, five time, presentation or needless waste Clark, and Brown all testified Gathright, Yet, Ark. R. Evid. 403 kidnapping. cumulative evidence.” regarding detail objection 201, general State, (2013); made Ark. Laswell v. 2012 court of the the circuit apprise did not balancing 818. “The mandated 404 S.W.3d which is appeal, he raises on precise issue also a matter left to a by Rule 403 is kidnapping was of Swartz’s that evidence discretion, ap and an circuit court’s sound that it probative than prejudicial more court will not reverse the circuit pellate Ark. been admitted under should not have showing manifest ruling court’s absent 404(b). R. Evid. State, 284, Croy v. 2011 Ark. 383 abuse.” should not be object must at the S.W.3d 367. The evidence A defendant and he must then renew opportunity, first excluded under Rule 403 unless the defen raised; is objection each time the issue pro can show that the evidence lacks dant otherwise, argument waived his he has in view of the risk of unfair bative value appeal. Vaughn issue on v. regarding that admissibility of Id. The test of prejudice. (1999). 220, State, 992 S.W.2d 785 338 objection relevancy is evidence over appeal, a defen preserve To an issue proof affords whether the fact offered into object opportunity. must at the first dant inference of the fact to a basis for rational State, 391, 2011 Ark. 384 S.W.3d Holt v. State, 499, v. 260 Ark. proved. Grigsby be object who to the party 498. A does (1976). 275, 507, “Evi 542 S.W.2d 280 oppor evidence at the first introduction of if it may independently be relevant dence argument appeal. such on tunity waives motive, intent, opportunity, prepara shows not make a Consequently, Id. Conte did tion, identity, plan, knowledge, or absence Untimely testimony regard to the objection State, v. 2010 Ark. of mistake. Smith now kidnapping and ing Swartz’s 75, Additionally, any 443. evi S.W.3d appeal. on precluded raising the issue act, explain dence that is relevant Furthermore, merely cu evidence that is motive, illustrate the accused’s show a or of other evidence repetitious mulative or mind, independently rele may state of be cannot be objection without admitted State, admissible. Brunson v. vant and v. prejudicial. claimed to be Gonzalez 313, (2006); 368 Ark. 245 S.W.3d State, 1, (1991); 306 Ark. 811 S.W.2d State, v. 340 Ark. 8 S.W.3d 547 Gaines State, v. 290 Ark. 721 S.W.2d Dumond (2000).” Lard if the fact 258. It is sufficient

S.W.3d Erred When It V. The Circuit Court relevant in connection with may become Relevancy Numerous Overruled facts, if it forms a link in the chain other Objections necessary support party’s of evidence Finally, Grigsby, supra. contention. See point appeal, For his fifth and final which evidence is that the circuit court erred relevant Conte asserts

705 A Phone establishing guilt or innocence C. Call Swartz Conte aids in Represented Where He That He accused, only slight Was though even of the in a in Firefight Afghanistan can be drawn from evidence. inference

Conte asserts that Swartz’s testimony, objection, regarding over his That He A. Statements Was Conte’s phone call Conte made where she could “Mercenary” and Traveled Abroad in the gunfire background hear and Conte Foreign to Kill Officials in Afghanistan pinned told her was asserts the circuit calling under an and was to tell her SUV testimony in allowing court erred Swartz’s time, her possibly he loved last had made re regarding statements Conte erroneously responds admitted. The State killer, being testimony a contract garding ruling was not erroneous because statements that he went regarding Conte’s testimony was relevant to Conte’s mis “Paladine,” by testimony the alias Swartz, back,” regain sion to and “win her special been on claimed to have and was connected to the murders because Cambodia, the introduc missions to part plan regain it was all of his Swartz.' re dog tags. tion of The State Conte’s Further, responds the State that the same that, sponds although Conte admitted to testimony during was admitted Clark’s tes “fantasy,” Barrett that his stories timony, objection. without Evidence that proba was more testimony and evidence merely repetitious cumulative of oth the evidence prejudicial tive than because objection er evidence admitted without jury allowed the to understand Conte’s prejudicial. Wedgeworth cannot be Here, State, 63, 5, at 2012 plan motive and to control Swartz. WL 503886 State, 242, (citing Eliott v. 342 Ark. plan was relevant to the evidence Conte’s (2000)). court will S.W.3d This our standard and mental state. Based on evidentiary by the not reverse an decision review, say we cannot the circuit court prejudice. trial court in the absence of erred. Marks v. Here, evi S.W.3d

|S2B. Resi- The Cleanliness Conte’s | dence was relevant to ^demonstrate City, Nevada and dence Carson mind, plan, state of and motive. Creek, Cabin Duck Utah hold that the circuit court did We allowing the testi Next, abuse its discretion cir Conte asserts that the mony under Rule 403. by allowing testimony cuit court erred re at garding the lack of cleanliness Alleged to Have Been D. Emails

homes. Conte claims that Authored From probative was not and was offered Email Account Swartz’s A review of the record prejudice Conte. testimony demonstrates that the at issue circuit next asserts that the during description occurred Swartz’s by allowing evidence court erred with ques Conte’s homes connection friends, family mem sent emails to their regarding tions the deterioration of bers, slept that Swartz had and co-workers Thus, relationship. man, the evidence was rele him and fled to with a then murdered state, plan vant mental responds Mexico. The State review, of mind and motive. Based on our standard emails showed Conte’s state further re- were relevant. The State we do not find error. (1997) 464, 38, (holding be- 940 S.W.2d was harmless 'any error sponds that through trial court to first testimony require came we that cause the same witnesses, evidence, Ashley Gathright, although and whether such two other consider that the evi- agree We objection. relevant, preju- danger without creates a of unfair plan, prove to was relevant dice, dence whether and then to determine mind. Evidence motive and state substantially prejudice unfair danger of of oth- repetitious or merely cumulative value); also probative its see outweighs objection without er evidence admitted State, 271 Ark. 609 S.W.2d 898 Beed v. supra. Wedgeworth, prejudicial. cannot be (1980). may exclud- Relevant evidence be evidentiary not reverse This court will substantially probative value is ed if its in the absence of trial court by decision by danger preju- of unfair outweighed Marks, We hold that supra. prejudice. R. Evid. 403. Evidence is ad- dice. Ark. not abuse its discre- court did the circuit light if it tends to shed missible tion. issue, if it is testimony, corroborate to necessary element of proving a essential Firearms, of Numerous E. Introduction case, is useful to enable witness a Book Ammunition and Magazines, jury effectively, or enable the testify more History of Torture and “The Called v. testimony. Weger understand to better Executions” State, 869 S.W.2d that the circuit also asserts Here, an element of the offenses essential when, objection, it erred over court intent; to secure a conviction charged a book titled “The evidence of admitted murder, prove the State had to capital Executions” that History of Torture and appellant caused the victims’ deaths in 2002. from his home was seized pur- premeditated and deliberated relevancy was no that there contends books, “Quiet The-State offered two pose. and it introduced to offering the book Killers, Es- Weapons in War and Silenced The jury prejudice and Conte. inflame the and History and “The of Torture pionage” testimony at trial responds State Executions,” knowledge to show Conte’s had been the victims demonstrated More- ability to commit the crimes. thus, this evidence was executed and rele over, the record reveals that thé titles trial, the State contended During vant. portions but no the books were introduced collectively show that that “these items and no jury the books were read to the tools, ability possessed [Conte] of the witness testified as to the content The to commit the murders. knowledge” were relevant books. Because the books |¡¡^Erickson testi record demonstrates case, of the prove an element ^State's an “element of these fied that there was circuit court did not abuse we hold that the being two individuals in—under control admitting this evidence its discretion ... individual at the time of of another point. affirm the circuit court on this their death.” of life im- This case involves a sentence rejects This court the admis therefore, it is parole; without prisonment inflammatory where sion of Supreme review under Arkansas subject to preju claims of relevance are tenuous and 4-3(i). Ark. required As under Court Rule court expects the trial great, dice is- 3(i), the record has been Sup. Ct. R. carefully probative pho value of weigh 4— motions, and objections, examined for all nature. tographs against prejudicial their that were party made either requests 637- Camargo See Conte, preju- bring and no The fact that Hiland chose to the adversely to decided case, his predecessors when decided has been found. error dicial it, against support cannot reversal of this Affirmed. That can case. situation be ascribed to being aggressive Hiland’s more than the Noyl joins Alvis Houston Special Justice preceded men who him in office. The opinion. in this . problem argument with this is that Dr. Hart, J., concurs. prejudice claim of was the Conte’s witness, single Pringle, death of a alibi Wood, J., participating. not account of Dr. whereabouts whose Conte’s Hart, Justice, Linker Josephine proving fell far short of that Dr. Conte concurring. Moreover, not at the crime scene. Prin- Dr. lo- gle’s regarding statements because, separately although I write this through cation could have been introduced affirmed, must be I am concerned case other witnesses. may that Dr. not have received a view, trial. I am most troubled two fair in my prejudice lay the fact delay bringing the case to points: years that over the nine between the com- Dr. prohibiting trial and the circuit court’s filing mission of the murders and the Conte, presenting “Zinged defense. charges against the- Dr. the state- However, argued, points as these do potential suspects simply ments of other case. compel this court to reverse this disappeared police from the files. This “missing” taped evidence includes the First, asserted that the death of by alleged made bookmaker statement witness, Pringle, prej- alibi constituted his Merrill, El- Raymond who broke Carter delay that warranted the dismissal udicial murder; jaw liott’s before the Joe Garri- He that in Scott of the information. noted son, high-stakes allegedly engaged who v. 566 S.W.2d with Elliott and to whom Elliott gambling (1978), prejudicial this court held that de- Cook, $50,000; Danny a man who owed lay bringing charges can violate a defen- having Elliott about an af- had confronted process, due and the right dant’s wife; West, an em- fair with his and Dan charges should be dismissed unless the Elliott’s who was terminated a ployee of “satisfactory State comes forward with alleged- before the murders and had week delay. He asserts that reason” for the |37he if ly threatened to kill Elliott here, |3(icourt“essentially signed the circuit Also, the man Dumaglosky, Jackie fired. (the officer) investigating off on Barrett West’s, could not reported who had threat prose- to three different shopping case have and was believed to moved be located notes that no additional cutors.” Conte potential spoliation of state. The out prior bringing found argued exculpatory evidence—if —could charges. He contends that Hiland’s deci- argument. compelling have made a more bring charges sion to was related to case, because particularly so this This is prosecutor. points campaign his evidence, testimony of two no save daughter, Ashley to the fact that Elliot’s snitches, anywhere put Dr. Conte jailhouse Waldron, campaign in a appeared televised at the time of the near the crime scene Hiland, although commercial for murders. circuit court dismissed it as not relevant bias, signifi- me point that causes contends that it violated funda- The second appel- Dr. was how mental fairness. cant concern nature that oc- the circuit court’s another crime of similar challenged late counsel ar- appellant after the had been Prior to curred Zinger defense. denial being he was tried rested for the crime trial, preclude a motion to the State filed for, being perpe- implication inferring that others had Dr. Conte from crime committed subsequent trator of the They sought to the murders. committed Zingers progeny, both. closest Birts Cook, Danny testimony about exclude 4471108, State, 348, Ark. 2012 2012 WL Merrill, Garrison, and Dan Raymond Joe healthy specu- dose of likewise involved on prevailed The State its motion West. In perpetrator. lation about an unknown argues Dr. the appeal, On Birts, the wished to introduce defendant prevented being in limine motion by contributed an un- forensic evidence How- present complete defense. able other than the defendant person known ever, argument by this as- he undercuts apartment in the victim’s that was found Zinger standard that the serting and vehicle. was “too narrow.” circuit court relied on Zinger it is true that seems While State, 70, v. 313 Ark. 852 S.W.2d Zinger evidentiary points link that di- require 320, held that the stan- supreme the court rectly guilt party, to the of a third State admissibility tending of evidence dard for Harrison, 198, v. 2012 Ark. 404 S.W.3d in the crime persons to incriminate other 830, that a direct link was this court held charged as follows: being by party’s testimony. established a third may introduce evidence A defendant Likewise, State, in Harmon v. tending to show that someone other 391, 891, testimony that a third 441 S.W.3d the crime than the defendant committed possession was in of Harmon’s car person charged, but such evidence is inadmissi- the time of the murder established that at directly to the points guilt ble unless it direct link. Evidence which party. of the third does Zinger impedi I submit that is not the no more than create an inference or prevailing appeal, ment to Dr. guilt conjecture as to another’s is inad- purports rather it is a case that to be missible. State, v. 366 Zinger’s progeny, Armstrong 75-76, at Zinger, 313 Ark. at 852 S.W.2d (2006). 105, ap Ark. 233 627 On S.W.3d Wilson, 117, v. 322 (quoting State N.C. Armstrong the State cites as authori peal, (1988)). argument This 367 S.E.2d 589 ty upholding ruling. the circuit court’s Zinger was inefficacious because the rule court Armstrong The stated: expressly upheld by Supreme the that the cir- Armstrong also contends Court of the United States Holmes v. erroneously court excluded evidence cuit Carolina, 319, South 547 U.S. 126 S.Ct. of controversies present he wanted to (2006). Essentially, 164 L.Ed.2d 503 Kim and her sisters and between Waller appellate Dr. counsel was conced victim, including tape an audio which ing ruling circuit court’s by the Waller sis- contained statements binding precedent of this lasfollowed threatening ters to kill Dashunda Arm- Supreme court and of the Court of the court strong. He claims that circuit United States. State, erroneously Zinger construed I note that the case before (1993), us did Ark. as 852 S.W.2d present typical Zinger situation which guilt of another’s requiring that evidence identity person of the third is un- presented pointed be where it could |,pother perpetrator’s completely speculative. Zing- directly known and to the guilt. He asserts that names proffered testimony concerning er involved State, guilt. who had See Echols v. of all three Waller sisters wife; records of the vio- threatened his 936 S.W.2d 509 While Arm- in- lent encounters between women strong Zinger permits claims that evi- case; cluding a court records from the dence of another’s connection to the office that showed mutual prosecutor’s crime, he is Zinger mistaken. The court Armstrong harassment between Mrs. exceedingly clear that any evidence Waller; presence and the and Ms. pertaining to the possibility of a third- night Kim at the crime scene the Waller guilt in the party’s charged crime must urges He that the cir- of the murder. point directly guilt to the of the third cuit court trammeled his Fourteenth See, party. e.g., Echols v. supra. right process Amendment and a due pointed Because the evidence by denying opportunity fair trial him the Armstrong does no more than create a jury to have the decide whether suspicion conjecture that the Waller Armstrong’s evidence of Mrs. battles may played sisters have a role in Dash- with the Waller sisters cast reasonable death, unda Armstrong’s circuit prosecution’s theory doubt on the court did not abuse its discretion re- perpetrated he the murders. jecting the evidence. 116-18, Armstrong, 366 Ark. at 233 S.W.3d Armstrong possessed tape While at 636-37. which contained the voices of several view, my In Armstrong wrongly Arm- threatening Waller sisters Mrs. However, decided. v. Armstrong strong Armstrong’s evidence that (2008), 284 S.W.3d the Rule wife and several of the Waller sisters case, retreating far from from the erro another, presented had harassed one holding, compounded neous court 140this evidence no direct or circumstantial by declining the error to correct the mis which connected of the Waller sis- appeal take and held that the direct com ters to his wife’s death. As the State ported Zinger and thus with Holmes out, sisters, points two of the Waller Carolina, South U.S. S.Ct. Yolanda, Karen and whom their sister 1727, 164 I note that L.Ed.2d being Kim identified as the voices on the Holmes held that the exclusion of defense tape sought to be admitted Arm- third-party guilt evidence of denied defen strong, City night were in Forrest dant a fair trial. It is case that favors murder, Armstrong’s Dashunda accord- testimony. type admission of this ing testimony pre- to Karen’s and Kim’s head. Armstrong stands Holmes on its addition, sented to the circuit court. very Armstrong procedure, sanctions the despite presence Kim Waller’s in the us, which was in the case before employed night area of the crime of the scene that Holmes found unconstitutional. This death, con- Armstrong victim’s failed to jurisprudence misstep Zinger our possibility nect her with the presence I am challenged appeal. While guilt, especially her when she testified dis mindful that a circuit court has broad that she was in the area because or exclude cretion on whether to admit call telephone she received a cellular evidence, that discretion does not extend Armstrong pick up. to come a defendant a fair trial. denying admissible, To be this court has held that there must be a sufficient connec-

tion between the that a third

party may crime have committed the possibility

and the another person’s

Case Details

Case Name: Conte v. State

Court Name: Supreme Court of Arkansas

Date Published: May 21, 2015

Citation: 463 S.W.3d 686

Docket Number: CR-13-721

Court Abbreviation: Ark.