Conte v. State , 463 S.W.3d 686 ( 2015 )

Cite as 2015 Ark. 220
SUPREME COURT OF ARKANSAS
No. CR-13-721
RICHARD RALPH CONTE Opinion Delivered May 21, 2015
APPELLANT
APPEAL FROM THE FAULKNER
V. COUNTY CIRCUIT COURT
[NO. CR-11-1028]
STATE OF ARKANSAS HONORABLE CHARLES E.
APPELLEE CLAWSON, JR., JUDGE
AFFIRMED.
KAREN R. BAKER, Associate Justice
On January 22, 2013, appellant, Richard Ralph Conte, was convicted by a Faulkner
County Circuit Court jury of two counts of capital murder and two counts of firearm
enhancements. The State waived the death penalty and the circuit court sentenced Conte to
two terms of life imprisonment without the possibility of parole for the capital murders, and
fifteen years each on the firearm enhancements. The sentences were to run consecutively.
On January 24, 2013, Conte timely filed his notice of appeal. On January 30, 2014,
Conte subsequently filed his brief with this court, the State timely responded, and Conte
timely replied. On September 18, 2014, we remanded this matter to settle the record and
ordered rebriefing. Conte v. State, 2014 Ark. 381 (per curiam). On October 30, 2014, Conte
filed his substituted brief, and this matter is now properly before the court.
Conte now appeals from his 2013 convictions and sentences and raises five points on
appeal: (1) the circuit court erred in denying Conte’s motion to dismiss when it found that
Cite as 2015 Ark. 220
the State had a satisfactory reason for the nine-year delay in bringing charges; (2) the circuit
court erred in not granting Conte’s motion for directed verdict; (3) the circuit court erred in
granting the State’s motion in limine as this violated Conte’s right to a “complete defense”
under both federal and state constitutional guarantees of due process, confrontation, and
compulsory process; (4) the circuit court erred by allowing inadmissible 404(b) evidence
regarding Conte kidnapping Lark Swartz; (5) the circuit court erred when it overruled
numerous relevancy objections
Facts
In the early morning hours of May 19, 2002, Carter Elliott and Timothy Robertson
were found dead in Elliott’s home in Faulkner County, Arkansas. The victims were each
killed with one gunshot to the back of the head. Although Conte was developed as a suspect
early in the investigation, he was not charged with the murders until 2011. The State’s theory
of the case was that Conte was obsessed with, and sought control over, his estranged wife,
Lark Swartz. Swartz had previously been married to Elliott. Prior to Elliott’s murder, Swartz
told Conte that she planned to end their short marriage and was leaving Conte. According
to the State’s theory of the case, Conte killed Elliott and Robertson in an effort to eliminate
competition for Conte and convince Swartz not to continue pursuing a divorce.
Approximately one month after the murders, in Nevada, after Swartz had continued with
plans to divorce Conte, Conte kidnapped Swartz and was planning to kill Swartz and himself
but ultimately surrendered to authorities.
At trial, Swartz testified that she was married to Carter Elliott from 1974 to 1992 and
2
Cite as 2015 Ark. 220
resided in Conway. The couple had two children together, Trey Elliott and Ashley Waldron.
After their divorce, Swartz testified that she moved to Katy, Texas, and ultimately to Salt Lake
City, Utah, where her sister, Gay Clark, and her brother-in-law, Kevin Clark, resided. While
living in Salt Lake City, Swartz met Conte, an emergency-room physician. She further
testified that Conte and her brother-in-law, Dr. Clark, went to medical school together and
had known each other for at least ten years. Conte resided in Carson City, Nevada. Swartz
testified that she began dating Conte seriously in January 2001. Swartz testified that the two
became engaged in April or May 2001, married on October 19, 2001, in a civil ceremony in
St. George’s, Granada, and then married in a church ceremony on December 1, 2001 in
Bequia, in the Grenadines Islands. After the two were married, the couple continued to
maintain their long-distance relationship, now marriage, in their respective cities. Swartz kept
her condominium in Salt Lake City because her daughter, Ashley, resided there at times and
was engaged to be married soon.
Swartz testified that during her relationship with Conte she had conversations with
Conte about their pasts, including her relationship with Elliott, and her relationship with her
daughter, Ashley, and Ashley’s upcoming wedding. Over Conte’s objection, Swartz testified
that Conte told her he was recruited out of high school to work as a hired killer, or
mercenary, for the Vinnell Corporation, an undercover-operations group for the United
States Military. She further testified that he had a logo on his business card that stated “Have
gun, will travel.” Over Conte’s objection, she testified regarding a letter he had written to
her in which he claimed he was in Cambodia on a special-operations mission. She further
3
Cite as 2015 Ark. 220
testified that Conte brought dog tags to her that he received for passing his training for
parachuting. Swartz testified that while they were dating she went with Conte to his cabin
in Duck Creek, Utah. She testified that Conte explained to her that his Duck Creek
residence was a military safe house for his friends in special operations; there were many
firearms, surveillance cameras, tape-recorders and phone-tapping devices. However, Conte
resided and worked in Carson City. Swartz indicated that Conte used the alias “Paladine,”1
and called his home in Carson City “Paladine Arms.” Swartz testified that she had not been
to Conte’s home in Carson City until after the two were married. She testified that his home
in Carson City was just like the Duck Creek cabin. She testified that there were all kinds of
knives and guns, mercenary magazines all over the floor; war movies; guns over the door post
and in every jacket and every pocket of every jacket. Swartz also testified that in the Carson
City home “the - - it looked like a meat hook hanging in the - - bedroom and then the - -
[there were] these large silver rings that were embedded into his Paul Bunyan style-bedpost.”
She testified that both homes were filthy and messy and covered with guns and military
paraphernalia. Swartz testified that after seeing these things, their “relationship began to
deteriorate.”
Swartz testified that around Valentine’s Day, 2002, Swartz told Conte that she “was
very unhappy and [she] was going to get a divorce.” She testified that when she told Conte
she wanted a divorce, Conte was crying, begged her not to leave him, and said that he would
1
We note that Conte’s dog tags in the record, Exhibit No. 30, spell “Paladine,”
“Paladin.”
4
Cite as 2015 Ark. 220
be humiliated and he was very upset. Swartz further testified that she and Conte continued
to communicate after their separation and Conte had access to her combination lock on the
door of her condominium in Salt Lake City. She testified that while they were separated,
Conte sent flowers, gifts, jewelry, and cards to her home and work place. She testified that
she found notes from him in books she was reading, on her refrigerator, in her lingerie
drawer, totaling over one hundred items. Swartz also testified that during this time, there was
an engagement party for Ashley on April 13, 2002, in Conway. Swartz testified that Elliott
attended the party and that Conte was aware of this. Swartz testified that on April 17,
2002, Conte called her, and she could hear gunfire and machine guns in the background. She
testified that Conte told her that he was in Afghanistan, pinned under an ATV or SUV, was
going to be killed at any moment, and wanted to tell Swartz he loved her and that – “this
might be the last time we ever talk to each other.” Swartz testified that on or around May
2, 2002, Conte came to Salt Lake City to show Swartz where he had been shot while in
Afghanistan.
On May 8, 2002, Swartz filed for divorce. Swartz testified that during their separation
and after she had filed for divorce, she and Conte had knowledge of each other’s schedules.
She testified that Conte was not supposed to be working the weekend of May 17–19, 2002.
Swartz testified that on or about May 19, 2002, she learned of Elliott’s and Robertson’s deaths
and traveled to Conway. During this time, she had communications with Conte and he was
aware of the murders. Swartz testified that once she returned to Salt Lake City, “[Conte] told
me that a bullet that is left next to the victim’s head was the signature of the killer and for
5
Cite as 2015 Ark. 220
[me] to be quiet about it.”
Next, over Conte’s objection, Swartz testified that when she arrived home from work
on June 20, 2002, Conte was at her home, armed with a gun, with a scope and silencer on
it, and a stun gun. She testified that Conte tied her down, threatened to kill her and himself,
and forced her to drink something. Swartz testified that when she woke up she was
handcuffed in the back of Conte’s truck. She further testified that while she was in and out
of consciousness, Conte was very distraught about their break-up and was threatening to kill
her and himself. Swartz testified that she eventually did wake up and was handcuffed to the
rings on his “Paul Bunyan” bed in Carson City. Swartz testified that she did not send her
family emails but that Conte wrote messages to her family and friends from her email address
indicating that she had met a man over the Internet, had sex with him, killed him, and that
she was now in hiding. Swartz further testified that Conte had pictures of her with Elliott and
her family, along with pictures of another ex-boyfriend, even though she had never brought
those pictures to Conte’s home. Swartz was eventually released after her family discovered
that Conte had kidnapped her and called the police.
Kevin Clark, Swartz’s brother-in-law, testified that he and Conte met in medical
school and that he had known Conte for over twenty years. According to Clark, Conte said
he was a contract killer for the Vinnell Corporation for the United States government and had
told Clark many stories of his operations and had shown him medals and awards he had
earned. Clark testified that on April 17, 2002, while Conte and Swartz were separated, Conte
called Clark and relayed that he had been in Afghanistan, trapped under an SUV that he had
6
Cite as 2015 Ark. 220
and been hit by several bullets. Conte also told Clark that he was flying back to Utah and
would meet Clark at his office in a few hours to have the bullets removed. Clark met Conte,
took him to the hospital for x-rays, then returned to his office and removed eight or nine
bullets. Clark testified that the bullet wounds were not consistent with gunshot wounds but
“looked like they had been inserted with small incisions.”
With regard to Swartz’s kidnapping, Clark testified that he received a call from Ashley,
on or around June 21, 2002, reporting that Conte had her mother, and asking Clark to call
Conte. Clark testified that he called Conte and Conte reported that “he had Lark, she was
ok, tied to a chair.” Clark testified that he told Conte that the police were coming, not to
fight them, to untie Swartz and go sit on his porch in his underwear. Clark testified that was
the last time he talked to Conte. Clark also testified that he received a call from Conte on the
Sunday after the murders from Conte’s land-line phone at his Duck Creek residence, and
Conte had told him he had car trouble.
Ashley testified that on June 21, 2002, she could not reach her mother, Swartz, and
contacted Conte looking for her mother. Ashley testified that when she contacted Conte, he
informed her that “your mom picked up a man in Park City and she slept with him and she
killed him and I’ve given her money and I’ve taken her down to the border in Mexico and
you’re never going to see her again.” Ashley testified that she spoke on the phone with her
mother who was “out of it.” Ashley also testified that she received emails from Swartz during
the time of the kidnapping that she turned over to authorities.
Trey Elliott also testified concerning Swartz’s kidnapping. Trey testified that after his
7
Cite as 2015 Ark. 220
father’s murder on June 21, 2002, Conte kidnapped his mom. Trey testified that he received
a call from his mother, she sounded drugged, and she said, “Conte’s got me.” Trey testified
that he then spoke with Conte on the phone, Conte was very upset and said he had made a
huge mistake and was going to kill himself. Trey testified that he tried to get Conte to calm
down and begged Conte not to kill his mother.
Richard Gathright testified that he is Swartz’s brother and was aware that in the spring
of 2002 Swartz and Conte had separated and that Swartz was in the process of divorcing
Conte. Gathright testified that his sister, Gay Clark, and his brother-in-law, Dr. Kevin Clark,
were at his home in Pompano Beach, Florida, when he learned of the murders of Elliott and
Robertson; Clark then called Conte three or four times, but could not reach him. Gathright
further testified that Conte returned Clark’s call approximately forty-five minutes later from
Conte’s Duck Creek, Utah, land-line phone. Gathright also testified about the kidnapping.
Gathright testified that he flew to Utah, and upon Swartz’s release went with Swartz to the
Utah Sheriff’s Department to collect some of her personal belongings. Gathright further
testified that he received emails from Swartz during the time she was kidnapped that did not
appear to be from Swartz.
Sergeant Rick Brown, with the Nevada Department of Public Safety, was an
investigator with the Douglas County Sheriff’s Office in Douglas County, Nevada. Brown
testified that he responded to Ashley’s and Trey’s calls regarding Swartz’s 2002 kidnapping.
After Conte was in custody, Brown, along with Arkansas law enforcement, searched Conte’s
residence. Brown testified that the officers searched Conte’s Carson City home and his silver
8
Cite as 2015 Ark. 220
Dodge pickup truck. Brown testified to seizing a large stockpile of weapons, and a book
titled, “Quiet Killers, Silenced Weapons in War and Espionage” about how to execute people
quietly. Brown testified that officers located a brown piece of cardboard that stated “Edmond
Carter Elliott, Conway, Arkansas” with Elliott’s phone number and address written on it.
Brown further testified that officers located a manilla colored piece of paper with “Detco,”
which was Elliott’s business’ name, written on it and a telephone number written beneath it.
Brown further testified that officers located documents dated May 11, 2002, with general
background information on Conway and Faulkner County, which included: documents with
online search results for police frequencies, radio frequencies, and fire frequencies; documents
with results from the Federal Communications Commission that were downloaded showing
the call signs and radio frequencies and the issue and expiration dates for the Conway
Emergency Services; county law enforcement and fire frequencies; and Mapquest results for
maps of Conway and Faulkner County, Arkansas. Brown also testified that officers located
a printed Internet article dated May 27, 2002 on the double murder of Elliott and Robertson.
Brown testified that officers also searched Conte’s truck and located a piece of paper
with “Conway’s Hojo Inn, Room 204,” “Channel 4, Channel 7 of Little Rock,” and “Log
Cabin Paper” written on it. Brown also testified that officers found printouts of several emails
wherein Conte explains to Swartz that he will do anything to keep them together and she is
the center of his life. Brown testified that officers also located Glaser Blue Tip Safety Slugs and
white towels.
Charles McLemore, a retired officer with the Arkansas State Police, testified that in
9
Cite as 2015 Ark. 220
2002 he was a criminal investigator for the State Police. He further testified that he traveled
to Douglas County, Nevada, and participated in the search of Conte’s residence in Carson
City in June 2002. McLemore testified that, during the search, officers seized a large number
of firearms, including a 9mm firearm, 9mm Glaser Blue Tip Safety Slugs, and a clip of
ammunition that held 15 bullets. The clip contained 14 bullets. McLemore further testified
that with 15 bullets in a clip, one bullet could be held in the chamber, for a total of 16 bullets.
McLemore testified that officers located a .45mm firearm and .45mm Blue Tip Glaser Safety
Slugs. McLemore testified that officers also located a sound suppressor for firearms and a book
titled “The History of Torture and Executions.”
Jim Barrett, a lieutenant with the Conway Police Department, testified that on May
19, 2002, he was a Sergeant in the Detective Division at the Conway Police Department and
responded to the death investigation at the Elliott home. Barrett testified that officers located
an unfired .45 mm Glaser Blue Tip Safety Slug in a baseball cap at the scene. Barrett testified
that in his twenty-three years in law enforcement he had never seen this type of ammunition
used in the commission of a crime. He also testified that the Glaser Blue Tip Safety Slugs were
expensive and sold in gun shops, not retail and hunting stores. Barrett further testified that
he was also involved with the search of Conte’s home in Carson City in June 2002. Barrett
testified that he took a sample of bugs and soil from Conte’s Dodge Silver truck to send to
a geologist and an epidemiologist to determine if the sample had come from a specific region
of the country. No results were obtained that were helpful to the investigation.
Steve Hargis, a firearms and tool examiner at the Arkansas State Crime Laboratory, also
10
Cite as 2015 Ark. 220
testified. Hargis testified that, of the barrels and firearms tested, none demonstrated that they
had been used to fire the shots that killed Elliott and Robertson. Hargis further testified that
Blue Tip Glaser Safety Slugs are rare and expensive.
Dr. Stephen A. Erickson, Deputy Chief Medical Examiner at the Arkansas State Crime
Laboratory, testified that he performed the autopsies on Elliott and Robertson. Erickson
testified that both men died from gunshot wounds to the back of each of their heads.
Erickson testified that the bullets used were very powerful and “created a tremendous amount
of damage.” Erickson further testified that, upon reviewing the x-rays, he suspected he was
going to find Glaser Blue Tip bullet, and he did. He further testified that in his 19 years of
practice, he has seen thousands of gunshot wounds but had only seen this type of bullet one
time, during his fellowship, and the damage done was “forever impressed” on his mind.
Erickson also testified that the wounds in this case were atypical because there was no
evidence of powder or smoke from the gun. He accounted for this atypical finding by the
towels found at the scene that were used to filter the gas and smoke. Erickson testified that
the bodies did not have defensive wounds or injuries suggesting a struggle.
Finally, the State presented testimony from two inmates. Rusty Glover testified that
at the time of trial, he was in the Faulkner County jail pending felony domestic-battery
charges and revocation of a suspended sentence. Other than the pending charges, Glover
testified that he had eleven prior felony convictions. Glover further testified that he went
to high school with Elliott’s children but had not seen them since high school. Glover
testified that he met Conte in the medical pod in 2012 and played cards and visited with
11
Cite as 2015 Ark. 220
Conte frequently. The two were housed together in the medical unit for a month and a half.
Glover testified that when he realized who Conte was and what he had been charged with,
he asked Conte, “Did you do it? And [Conte] said ‘Hell, yeah, but they have no evidence.’”
Glover testified that Conte also stated that the authorities had no weapon and “they’re about
to run out of time. They’re going to have to let me go.” Glover further testified that Conte
explained that authorities “had questioned him about a vehicle, about an anthropologist
checking his vehicle for Arkansas bugs to see if they could put the vehicle [in Arkansas], and
he said they checked the wrong vehicle. . . . [Conte] said they had the truck, the grill for .
. . you know a specialist.” Glover testified that he was not familiar with the word
“anthropologist” before Conte told him about the anthropologist checking his truck for
bugs. Glover further testified that Conte told him there were two victims, Elliott and
Elliott’s bodyguard. Glover testified that he was not aware of Robertson’s death until Conte
told him there were two victims. Glover also testified that Charles Reeves, another prisoner,
also heard Conte’s confession.
Next, Charles Reeves testified that he had two prior felony convictions and at the
time of trial had additional charges pending against him. Reeves testified that he was in the
medical pod of the Faulkner County jail with Conte and Glover. Reeves testified that he
had little interaction with Conte but did overhear Conte and Glover discussing Conte’s case.
Reeves testified that he heard Conte state that “they didn’t have anything on him” and there
was a discussion about a vehicle that was searched being the wrong vehicle. Reeves further
testified that he heard Glover ask, “Well, did you do it?” and Conte responded, “Yeah, I did
12
Cite as 2015 Ark. 220
it, but they ain’t got no proof.” After this conversation, Reeves testified that Glover asked
Reeves if he had overheard the conversation, and Reeves confirmed that he had. Reeves
further testified he did not know any of the people involved in Conte’s case. Reeves further
testified that he did not contact the authorities, but the prosecutor’s office contacted him.
Reeves also testified that he was not offered any leniency or a deal for his testimony.
On August 26, 2011, Conte was charged with and convicted of the murders of Elliott
and Robertson.
Points on Appeal
I. Sufficiency of the Evidence
Although Conte’s sufficiency argument is his second argument on appeal, we address
it first due to double-jeopardy concerns. Standridge v. State, 357 Ark. 105, 161 S.W.3d 815
(2004). We treat a motion for a directed verdict as a challenge to the sufficiency of the
evidence. Whitt v. State, 365 Ark. 580, 232 S.W.3d 459 (2006). In reviewing a challenge
to the sufficiency of the evidence, this court assesses the evidence in the light most favorable
to the State and considers only the evidence that supports the verdict. Tillman v. State, 364
Ark. 143, 217 S.W.3d 773 (2005). This court will affirm a judgment of conviction if
substantial evidence exists to support it. Id. Substantial evidence is evidence which is of
sufficient force and character that it will, with reasonable certainty, compel a conclusion one
way or the other, without resorting to speculation or conjecture. Id. Evidence is substantial
when it is forceful enough to compel a conclusion one way or the other, beyond suspicion
and conjecture. Id. We need consider only that testimony which supports the verdict of
13
Cite as 2015 Ark. 220
guilty. Id. Further, circumstantial evidence may provide a basis to support a conviction, but
it must be consistent with the defendant’s guilt and inconsistent with any other reasonable
conclusion. Id. Whether the evidence excludes every other reasonable hypothesis is left to
the jury to decide. Id. Finally, the credibility of witnesses is an issue for the jury and not the
court. Id. The trier of fact is free to believe all or part of any witness’s testimony and may
resolve questions of conflicting testimony and inconsistent evidence. Id.
With these standards in mind, we turn to Conte’s first point on appeal. Conte’s
primary challenge to the sufficiency of the evidence supporting his capital-murder
convictions focuses on the two inmates, Glover and Reeves, who each testified that Conte
confessed to the crimes. At trial, Conte made the following motion for directed verdict:
DEFENSE COUNSEL: The motion for directed verdict is made as to both
counts of capital murder pursuant to Rule 33.1 of the
Arkansas Rules of Criminal Procedure, along with the
Due Process Clause of United States Constitution
through Amendment 14 and the Due Process Clause of
the Arkansas Constitution.
The motion for directed verdict is based upon the State’s
insufficient proof that Dr. Conte caused the death of
another person as to the capital murder charges in the
count involving Mr. Elliott and the count involving Mr.
Robertson and, also, as to the lesser included offense of
first degree murder or any other lesser offense involving
the issue of causation. I think the Arkansas cases indicate
that we have to talk about what element is lacking and
that’s – what this motion addresses.
If we put the testimony of Mr. Glover and Mr. Reeves
aside – and I urge the Court to do so because they are
two very credibility-impaired individuals given their
14
Cite as 2015 Ark. 220
lengthy criminal history and their incentive to fabricate
to try to better their position with the prosecutor’s office.
I don’t contest their testimony that they haven’t been
offered anything by the prosecutor, but nevertheless,
those gentlemen know how to try to manipulate the
system. So I ask the court to just disregard their
testimony for the purposes of the motion. Past that, there
is no evidence that connects Dr. Conte to these two
homicides.
As I said in opening, there’s not any eye witness, not any
forensics, not any ballistics that connect him to the
homicide. Nobody puts him in Arkansas at the time. All
the state’s case occurs in Utah and all the state’s evidence,
aside from the crime scene and the crime lab dealing
with Dr. Conte, occurs in Utah and in Nevada, most of
which deals with the homicide.
I know they will make the circumstantial case argument
based on Dr. Conte’s conduct subsequent to the
homicides, but for our record I move for a directed
verdict on the element of causation on both counts of
capital murder and both lesser included counts of murder
one and any other included count.2
The State argues that Conte moved for a directed verdict on the issue of the
credibility of Glover and Reeves and is now bound on appeal to the scope and nature of his
directed-verdict motion. The State further argues that the issue of credibility of witnesses
is an issue for the jury, not this court. Finally, the State argues that Conte’s convictions are
supported by substantial evidence.
Here, Conte’s challenge to the sufficiency of the evidence supporting his convictions
focuses on the credibility of Glover and Reeves. As Conte acknowledges, the credibility of
2
Conte also renewed his motion for directed verdict at the close of the evidence.
15
Cite as 2015 Ark. 220
witnesses is an issue for the jury, and this court will not second-guess the credibility
determinations made by the fact-finder. Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002).
The jury is free to believe all or part of any witness’s testimony, to resolve questions of
conflicting testimony and inconsistent evidence, and to believe the State’s version of the facts
rather than the defendant’s. Id. Conte contends, however, that this court should nonetheless
disregard the testimony of both Glover and Reeves in determining whether substantial
evidence supports his convictions because they were “clearly unbelievable.” He argues that
they were jailhouse “snitches” with extensive criminal histories and that they testified against
Conte in hope of receiving a reduction in their sentences.
On appeal, we will disregard testimony that the jury has found to be credible only if
it is so inherently improbable, physically impossible, or so clearly unbelievable that reasonable
minds could not differ about it. Williams v. State, 351 Ark. 215, 91 S.W.3d 54 (2002). The
weighing of evidence lies within the province of the jury, and this court is bound by its
determination regarding the credibility of witnesses. Id. The jury is free to believe all or part
of a witness’s testimony, and inconsistent testimony does not render proof insufficient as a
matter of law. Id.
Here, Conte urges this court to disregard Glover’s and Reeves’s testimony as
“inherently unreliable.” However, both Glover and Reeves testified that they had not been
promised anything in return for their testimony. In addition, Glover provided details about
the crimes that were not widely known and that were consistent with other evidence
presented at trial, such as the testing of the soil and insects from Conte’s truck, and that Conte
16
Cite as 2015 Ark. 220
had stated the authorities had tested the wrong truck. Reeves also corroborated Glover’s
testimony. Thus, their testimony was not clearly unbelievable, and it was for the jury to
determine their credibility.
When viewed in the light most favorable to the State, the evidence established the
crimes and Conte’s connection to them and is sufficient evidence for the jury to convict
Conte. Thus, we hold that substantial evidence supports Conte’s convictions and sentences,
and the circuit court did not err in denying Conte’s motion for directed verdict.
II. Motion to Dismiss: Nine-Year Delay
For his next point on appeal, Conte asserts that the circuit court erred when it denied
his motion to dismiss based on prosecutorial delay. Because charges were not filed against
Conte for the 2002 murders until August 26, 2011, Conte moved to dismiss the charges prior
to trial. In his motion, Conte argued that a key alibi witness, William Pringle, had died in
2008 and that the prosecutorial delay in filing charges gave the State a “distinct advantage”
in this case in violation of the Due Process Clauses of the Arkansas and United States
Constitutions. Conte asserted that Pringle, a neighbor at his Duck Creek residence, was
interviewed in July 2002 and that Pringle told Investigator Brown that Conte could not have
been involved in the murders because he had seen Conte driving his truck three or four times
on May 19, 2001, the day before the murders. Conte asserted that because he was prejudiced
by the nine-year delay in filing charges, the State had the burden to show a satisfactory reason
for the delay. Conte noted that two prior prosecutors had declined to file charges against him
and asserted that no new evidence was discovered after the case had been reviewed by these
17
Cite as 2015 Ark. 220
prior prosecutors.
The State responded that the case had been under investigation since 2002 and that,
the Conway Police Department had presented the case file to the prosecuting attorney’s office
on several occasions and, while the prior prosecutors had refused to file charges, the current
prosecutor filed the charges after reviewing the case file. At the hearing on Conte’s motion
to dismiss, Barrett testified that he was the primary investigator on the case and that it had
remained an active and open investigation since the day of the murders. Barrett testified that
there had been continuous strategy meetings to determine whether different angles or leads
needed to be pursued. Barrett denied that he had intentionally caused a delay to procure the
unavailable witness and claimed that he had not learned of Pringle’s death until he was flying
back to Arkansas with Conte following Conte’s arrest on the murder charges.
After the hearing on the motion to dismiss, the circuit court took the matter under
advisement and then entered a letter order on April 27, 2012, denying the motion. The order
provides:
The circuit court’s April 27, 2012 order denying Conte’s motion to dismiss.
Following the hearing on [Conte’s] . . . motion to dismiss which was held this past
Tuesday I have had the opportunity to review the exhibits which were introduced
and the motions and briefs which were provided by the parties. Based upon this
review you may accept this letter as the Court’s ruling with regard to the defendant’s
motion to dismiss on the charges currently pending.
Mr. Lassiter contends that the delay in filing charges against the defendant has resulted
in a prejudice to his ability to defend himself. Specifically that a potential alibi witness,
one Mr. Pringle, passed away in 2008. The State on the other hand contends that the
delay was not the result of any effort by the state to obtain an advantage but simply
caused by circumstances which they could not control. Specifically, Detective Barrett
testified that this matter has been an ongoing investigation since the events occurred
in May, 2002 and that from time to time he would obtain additional information and
18
Cite as 2015 Ark. 220
approach the Office of the Prosecuting Attorney without charges being filed.
Eventually this matter was presented to this prosecutor's office in August, 2011 and
the charges were filed. The testimony clearly indicates that Detective Barrett was
unaware that Mr. Pringle had passed away.
Therefore, under the language of Scott v. State, 263 Ark. 669 (1978) at page 674,
“Since Scott was able to show prejudice to his defense unless the state can
come forward with a satisfactory reason for the delay the charges should be
dismissed.”
It is the Court’s conclusion that the state has presented a satisfactory reason for the
delay.
Conte asserts that he was prejudiced by Pringle’s intervening death and the State’s
failure to show a satisfactory reason for the delay. Conte contends that law enforcement
“shopped” the case to three different elected prosecutors, and the circuit court condoned this
“shopping” as a “satisfactory reason for the delay.” Conte also contends that the State
conceded in its pleadings to the circuit court that “no new credible evidence” was ever
developed and the State had the same case the day the felony information was filed, August
26, 2011, as it did on June 26, 2002, the day law enforcement interviewed Conte at the
Douglas County, Nevada Sheriff’s Office regarding the homicides. Further, Conte asserts that
Elliott’s daughter, Ashley, actively campaigned for the current prosecutor so that charges
would be brought against Conte. Finally, Conte contends that the circumstances surrounding
the charges being filed against him were fundamentally unfair under our constitution and his
motion to dismiss should have been granted.
The State responds that Conte has changed his argument on appeal. The State
contends that, on appeal, Conte does not even mention the death of his alibi witness,
19
Cite as 2015 Ark. 220
Pringle, but instead now argues that he was prejudiced by the delay because two prior
prosecutors felt there needed to be more evidence, law enforcement shopped the case, and
Ashley appeared in campaign ads for the current prosecutor. Thus, the State asserts that the
issue is not preserved for review. We agree that Conte may not change his argument on
appeal and is bound by the arguments made below. Therefore, we will not address
allegations concerning Ashley’s campaign ads for the current prosecutor because that
argument was not made to the circuit court. See Buford v. State, 368 Ark. 87, 243 S.W.3d 300
(2006).
Conte argues on appeal that the circuit court erred in denying his motion to dismiss
based on the delay. Conte argues that he suffered severe prejudice and that the State did not
present a satisfactory reason for the delay in filing charges. Conte relies on the State’s
admission that “no new credible evidence” had been discovered during the nine-year delay
and asserts that the court “essentially signed off on Barrett shopping the same case to three
different elected prosecutors.”
Turning to the merits of Conte’s remaining argument, in United States v. Lovasco, 431
U.S. 783 (1977), the Supreme Court held that a delay due to an ongoing investigation of the
case does not deprive the defendant of due process, even if the defense was prejudiced by the
lapse of time. Id. at 795-96. As the Court noted, “[t]he determination of when the evidence
available to the prosecution is sufficient to obtain a conviction is seldom clear cut, and
reasonable persons often will reach conflicting conclusions.” Id. at 793. The Court held:
Proof of prejudice is generally a necessary but not sufficient element of the due
process claim, and that the due process inquiry must consider the reasons for the delay
20
Cite as 2015 Ark. 220
as well as the prejudice to the accused. . . . It requires no extended argument to
establish that prosecutors do not deviate from fundamental conceptions of justice
when they defer seeking indictments until they have probable cause to believe an
accused is guilty; indeed it is unprofessional conduct for a prosecutor to recommend
an indictment on less than probable cause. It should be equally obvious that
prosecutors are under no duty to file charges as soon as probable cause exists but
before they are satisfied they will be able to establish the suspect’s guilt beyond a
reasonable doubt.
With regard to investigative delay, the Court held:
In our view, investigative delay is fundamentally unlike delay undertaken by the
Government solely “to gain tactical advantage over the accused,” United States v.
Marion, 404 U.S. at 324, . . . precisely because investigative delay is not so one-sided.
Rather than deviating from elementary standards of “fair play and decency,” a
prosecutor abides by them if he refuses to seek indictments until he is completely
satisfied that he should prosecute and will be able promptly to establish guilt beyond
a reasonable doubt. Penalizing prosecutors who defer action for these reasons would
subordinate the goal of “orderly expedition” to that of “mere speed,” Smith v. United
States, 360 U.S. 1, 10 . . . (1959). This the Due Process Clause does not require. We
therefore hold that to prosecute a defendant following investigative delay does not
deprive him of due process, even if his defense might have been somewhat prejudiced
by the lapse of time.
Here, Conte asserts that he suffered severe prejudice and that the prosecution used the
delay to gain a tactical advantage. The record demonstrates that Lieutenant Barrett testified
that he approached two different prosecutors with the evidence against Conte in an attempt
to bring charges against him, and he stated that the case was under continual investigation
until the current prosecutor chose to file charges. Barrett stated that they continuously held
strategy meetings to come up with different investigative angles. He also testified that he did
not intentionally delay the case to procure the unavailability of a witness. Barrett stated that
he first learned that Pringle had died when he was transporting Conte back to Arkansas
following Conte’s arrest. In addition to the testimony, the circuit court reviewed Conte’s
21
Cite as 2015 Ark. 220
statement, as well as a summary of Sergeant Brown’s summary of his July 2002 interview
with Pringle, which stated:
On 7-02-02 at 2115 hrs., while Inv. Coverley completed an inventory of seized items,
I conducted a brief interview with Mr. Pringle. Mr. Pringle informed me that he had
been a friend with Dr. Conte for several years and he has sold him six pieces of
property, to include the parcel where his cabin is. Mr. Pringle had heard that Dr.
Conte was a possible suspect in homicides in Arkansas, through the local media. He
informed me that he knew that Dr. Conte could not have been involved because he
had seen him that weekend in May. Mr. Pringle explained that Dr. Conte had his
truck towed from the cabin on or about May 20th of this year. He said that he had
seen Dr. Conte driving his truck three or four times the day before the truck was
towed. Mr. Pringle said that he did not talk with Dr. Conte that weekend, but talked
to him, about that weekend, on June 19th, 2002. Mr. Pringle stated that Dr. Conte
came back up to the cabin during the week of the 19th and stopped by the house.
He said that Dr. Conte told him that he had not stopped by to talk in May, because
he did not have his monthly mortgage payment and he was embarrassed. Mr. Pringle
asked him about his truck and Dr. Conte told him that he thought that local kids had
done something to his clutch while attempting to steal it. He told Mr. Pringle that on
06-19-02 Dr. Conte brought him two newspapers and seemed to be acting a bit
strange. He said that he would not look him in the eye. Dr. Conte told him that he
was leaving the area the next day, but he said he was in a hurry to get up to the cabin
to talk with Lark on the Internet. Mr. Pringle said that on 06-20-02, at approximately
1030 hours, he saw Dr. Conte at the neighborhood garage dumpsters, but Dr. Conte
would not look at him. I asked Mr. Pringle if Dr. Conte had ever talked to him about
the military or doing work for the government and he said that he had not.
Also, we note that during his testimony at trial, Sergeant Brown testified that Pringle
said that Conte could not have been in Conway the weekend of the crimes because Pringle
had seen him in Duck Creek. Specifically, Brown testified that Pringle told him that he saw
Conte driving his truck three or four times that weekend.
In Scott, supra, there was a three-year delay between the crime and the date on which
charges were filed. The State did not respond to Scott’s motion to dismiss, and no reason
was provided for the delay or whether the State had good cause for the delay. We held that,
22
Cite as 2015 Ark. 220
where the accused was prevented from using two alibi witnesses, one whose whereabouts
were not known and the other who had died a year and a half after the crime, the State
should have been required to provide a satisfactory reason for the delay. The case was
remanded with directions that, unless the State demonstrated that the reason for the delay
was other than to gain a tactical advantage against the accused, the charges should be
dismissed.
In Bliss v. State, 282 Ark. 315, 668 S.W.2d 936 (1984), we addressed a five-year delay.
In that case, minor children were removed from the parents’ custody in 1978 based on
allegations of sexual abuse. However, the mother and stepfather were not charged with rape
of the children until 1983. We held that, although the delay was unusually long, it could not
be said that the prosecution was intentionally delayed in order to gain a tactical advantage
over the parents, and we found no prejudicial error.
Additionally, other jurisdictions have recognized that mere speculation about the loss
of favorable evidence is insufficient to support a claim of prejudice. State v. Hales, 152 P.3d
321, 334 (Utah 2007). If a defendant claims prejudice because a previously available witness
is now missing or unavailable, the defendant must provide the expected content of the
witness’s testimony and indicate how that document or witness would have aided the
defense. Id. The defendant must also show causation by establishing that he could not have
obtained the crucial evidence from another source and that the evidence would have been
available if it were not for the government’s delay in filing the charges. Id. Courts are
uniformly in agreement that actual prejudice must be proven to advance a due-process claim
23
Cite as 2015 Ark. 220
for pre-indictment delay. State ex rel. Knotts v. Facemire, 678 S.E.2d 847, 854 (W. Va. 2009).
Applying our law to the present case, based on the record before us, Conte has failed
to demonstrate that he suffered substantial and actual prejudice resulting from the delay. The
alleged prejudice, the loss of Pringle’s testimony, was before the jury. In opening statement
and closing argument, Conte’s counsel, brought out the fact that Pringle placed Conte in
Duck Creek during the weekend in question. Additionally, the expected content of
Pringle’s statement and that the statement would have aided Conte’s defense by providing
Conte with an alibi were before the jury. Further, Conte has not shown that the evidence
could not be obtained from another source as Dr. Clark testified that Conte called him from
Duck Creek the day after the murders, and Barrett testified that Pringle had told him Conte
could not have committed the murders because he was in Duck Creek that weekend and
that Pringle had seen Conte driving his truck “a couple of times” that weekend.
Moreover, the record demonstrates that there was no evidence that the State
intentionally delayed bringing charges to obtain a tactical advantage over Conte. The record
demonstrates that the investigation remained ongoing throughout the years, law enforcement
was unaware of Pringle’s death until Conte’s arrest, that law enforcement made contact with
previous prosecutors, and that a decision was made to resubmit the case to the new
prosecutor, which resulted in the charges being filed. There is no evidence of delay to gain
a tactical advantage. As the court in Lovasco explained, “[T]he decision to file criminal
charges, with the awesome consequences it entails, requires consideration of a wide range
of factors in addition to the strength of the Government’s case, in order to determine
24
Cite as 2015 Ark. 220
whether prosecution would be in the public interest. Prosecutors often need more
information than proof of a suspect’s guilt, therefore, before deciding whether to seek an
indictment.” Here, based on the record before us, the delay in filing charges while
continuing to investigate the crimes, did not create the improper tactical advantage that
violates due process.
In sum, the circuit court did not abuse its discretion on this point, and we affirm the
circuit court.
III. The State’s Motion in Limine
For his third point on appeal, Conte contends that the circuit court erred in granting
the State’s motion in limine to prevent Conte from introducing evidence that third persons
may have committed the murders. At the pretrial hearing on January 15, 2013, the State
asserted that the defense would likely try to show that the murders had been committed by
the husband of a woman with whom Elliott had been allegedly having an affair, someone that
Elliott had done business with, or someone that he had gambled with and been assaulted by.
The State asserted that these matters had been investigated by police and that there was no
evidence to support third-party liability in this case. Thus, the State contended that it was
irrelevant evidence and should be excluded.
Conte responded that he should be able to introduce evidence showing that there was
a lack of investigation into other potential suspects once Conte kidnapped Swartz. Conte
argued that the investigation was incomplete and that Elliott’s business dealings and the alleged
affair should have been investigated further. Conte argued that the State’s case against him
25
Cite as 2015 Ark. 220
was circumstantial and that to deprive him of the opportunity to present this type of evidence
violated his right to present a complete defense and his constitutional rights of confrontation,
due process, and compulsory process. Conte relied on the court of appeals’ decision in Smith
v. State, 33 Ark. App. 37, 801 S.W.2d 655 (1990), and asserted that he should be able to
present the evidence. The circuit court granted the motion in limine and ruled, “If it’s your
contention that the investigation lacked completeness, I think you can argue that without
getting in gambling and affairs and business deals. I think that’s clear.” In granting the
motion, the circuit court held that Smith was not applicable.3
At the conclusion of trial, Conte made the following proffer: that a man named
Raymond Merrill broke Elliott’s jaw over a gambling debt; prior to Elliott’s death a man
demanded $50,000 from him for payment of a gambling debt; Elliott was having an affair with
Danny Cook’s wife at the time of the crimes, Cook confronted Elliott over the relationship
with Cook’s wife and Cook acted strange after the crimes; Dean West was an employee that
Elliott terminated the week before the murders and West threatened to kill Elliott; and Elliott
and Keller Johnson had a disagreement over some property litigation involving Johnson’s
father’s estate.
Circuit courts have broad discretion in deciding evidentiary issues, and their rulings on
the admissibility of evidence are not reversed on appeal absent an abuse of discretion. Laswell
v. State, 2012 Ark. 201, 404 S.W.3d 818. In Zinger v. State, 313 Ark. 70, 852 S.W.2d 320,
3
We note that Smith predates our decision in Zinger v. State, 313 Ark. 70, 852 S.W.2d
320.
26
Cite as 2015 Ark. 220
we discussed the standard for admissibility of evidence incriminating third persons and held
that
[a] defendant may introduce evidence tending to show that someone other than the
defendant committed the crime charged, but such evidence is inadmissible unless it
points directly to the guilt of the third party. Evidence which does no more than create
an inference or conjecture as to another’s guilt is inadmissible.
....
[The rule does not require that any evidence, however remote, must be admitted to
show a third party’s possible culpability . . . [E]vidence of mere motive or opportunity
to commit the crime in another person, without more, will not suffice to raise a
reasonable doubt about a defendant’s guilt: there must be direct or circumstantial
evidence linking the third person to the actual perpetration of the crime.
Zinger, 313 Ark. at 75, 852 S.W.2d at 323 (quoting State v. Wilson, 367 S.E.2d 589 (N.C.
1988)).
In Walker v. State, 353 Ark. 12, 17, 110 S.W.3d 752, 755 (2003) we explained our
holding in Zinger:
We have held that a defendant may introduce evidence tending to show that someone
other than the defendant committed the crime charged, but such evidence is
inadmissible unless it points directly to the guilt of the third party. Evidence which
does no more than create an inference or conjecture as to another's guilt is
inadmissible. [Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000)]; Zinger v. State,
313 Ark. 70, 852 S.W.2d 320 (1993)(citing State v. Wilson, 322 N.C. 117, 367 S.E.2d
589 (1988)). This rule does not require that any evidence, however remote, must be
admitted to show a third party’s possible culpability; evidence of mere motive or
opportunity to commit the crime in another person, without more, will not suffice to
raise a reasonable doubt about a defendant’s guilt. There must be direct or
circumstantial evidence linking the third person to the actual perpetration of the crime.
In Armstrong v. State, 373 Ark. 347, 284 S.W.3d (2008) (Armstrong II), we reaffirmed
our holding in Zinger and held that our holding was consistent with the United States
27
Cite as 2015 Ark. 220
Supreme Court’s holding in Holmes v. South Carolina, 547 U.S. 319 (2006).
Zinger held that the evidence a defendant wishes to admit to prove third-party guilt
must sufficiently connect the other person to the crime. Armstrong II, 373 Ark. at 353, 284
S.W.3d at 5 (2008); see also Armstrong v. State (Armstrong I) 366 Ark. 105, 233 S.W.3d 627
(2006), on direct appeal, we considered third-party death threats that Armstrong alleged
should have been admitted at his trial and concluded that it did “no more than create a
suspicion or conjecture that the Waller sisters may have played a role in Dashunda
Armstrong’s death.” 366 Ark. at 118, 233 S.W.3d at 637.
Here, Conte did not offer any evidence to connect any of these third parties to the
crime. Other than bare allegations, neither at the pretrial hearing nor at trial, did Conte
proffer evidence to link any third party to the crimes. Further, the circuit court has broad
discretion and, based on the record before us, the circuit court did not abuse its discretion.
We affirm on this point.
IV. 404(b) Evidence: Swartz’s 2002 Kidnapping
For his fourth point on appeal, Conte asserts that the circuit court erred in allowing
evidence regarding his kidnapping of Swartz. The State responds that Conte failed to preserve
this issue for review and it is also without merit.
Prior to trial, Conte filed a motion for production of Ark. R. Evid. 404(b) evidence.
The State responded that it might seek to introduce evidence that Conte had kidnapped
Swartz. Conte made no written or oral motion in limine concerning this evidence before
trial. During opening statements, both the State and Conte mentioned the kidnapping.
28
Cite as 2015 Ark. 220
However, when the State began to question Swartz about the kidnapping during her direct
examination, Conte objected, asserting that “I just wanted to lodge an overall objection to -
-.” The circuit court then ruled that the State was not allowed to go through the incident
step-by-step but was only allowed to ask general questions:
[W]e’re not trying him on kidnapping. Let’s don’t go through that blow-by-blow,
step-by-step. If you want to ask her some - - couple of general questions about what
happened, what the result was, that’s - - .
....
Let’s move through it really quickly. I don’t want to go into, you know, every detail.
....
Let’s - let’s get in and move on.
The record demonstrates that Conte made no further objection or argument regarding
this issue. In addition to Swartz, five witnesses, Ashley, Trey, Clark, Gathright, and Brown
all testified in detail regarding the kidnapping. Yet, Conte made only a general objection and
did not apprise the circuit court of the precise issue he raises on appeal, which is that evidence
of Swartz’s kidnapping was more prejudicial than probative and that it should not have been
admitted under Ark. R. Evid. 404(b).
A defendant must object at the first opportunity, and he must then renew his objection
each time the issue is raised; otherwise, he has waived his argument regarding that issue on
appeal. Vaughn v. State, 338 Ark. 220, 992 S.W.2d 785 (1999). To preserve an issue for
appeal, a defendant must object at the first opportunity. Holt v. State, 2011 Ark. 391, 384
S.W.3d 498. A party who does not object to the introduction of evidence at the first
opportunity waives such argument on appeal. Id. Consequently, Conte did not make a
29
Cite as 2015 Ark. 220
timely objection to the testimony regarding Swartz’s kidnapping and he is now precluded
from raising the issue on appeal. Furthermore, evidence that is merely cumulative or
repetitious of other evidence admitted without objection cannot be claimed to be prejudicial.
Gonzalez v. State, 306 Ark. 1, 811 S.W.2d 760 (1991); Dumond v. State, 290 Ark. 595, 721
S.W.2d 663 (1986)).
V. The Circuit Court Erred When It Overruled Numerous Relevancy Objections
For his fifth and final point on appeal, Conte asserts that the circuit court erred in its
ruling on five evidentiary issues regarding relevancy.
Rule 403 provides that “[a]lthough relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Ark. R. Evid. 403 (2013); Laswell v. State, 2012 Ark.
201, 404 S.W.3d 818. “The balancing mandated by Rule 403 is also a matter left to a circuit
court’s sound discretion, and an appellate court will not reverse the circuit court’s ruling
absent a showing of manifest abuse. Croy v. State, 2011 Ark. 284, 383 S.W.3d 367. The
evidence should not be excluded under Rule 403 unless the defendant can show that the
evidence lacks probative value in view of the risk of unfair prejudice. Id. The test of
admissibility of evidence over an objection to relevancy is whether the fact offered into proof
affords a basis for rational inference of the fact to be proved. Grigsby v. State, 260 Ark. 499,
507, 542 S.W.2d 275, 280 (1976). “Evidence may be independently relevant if it shows
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.
30
Cite as 2015 Ark. 220
Smith v. State, 2010 Ark. 75, 364 S.W.3d 443. Additionally, any evidence that is relevant to
explain the act, show a motive, or illustrate the accused’s state of mind, may be independently
relevant and admissible. Brunson v. State, 368 Ark. 313, 245 S.W.3d 132 (2006); Gaines v.
State, 340 Ark. 99, 8 S.W.3d 547 (2000).” Lard v. State, 2014 Ark. 1, 9, 431 S.W.3d 249,
258. It is sufficient if the fact may become relevant in connection with other facts, or if it
forms a link in the chain of evidence necessary to support a party’s contention. See Grigsby,
supra. Finally, relevant evidence is any evidence which aids in establishing the guilt or
innocence of the accused, even though only a slight inference can be drawn from the
evidence.
A. Conte’s Statements That He Was a “Mercenary” and Traveled Abroad to Kill Foreign
Officials
Conte asserts that the circuit court erred in allowing Swartz’s testimony regarding
statements Conte had made regarding being a contract killer, testimony regarding Conte’s
statements that he went by the alias “Paladine,” testimony that Conte claimed to have been
on special missions to Cambodia, and the introduction of Conte’s dog tags. The State
responds that, although Conte admitted to Barrett that his stories were “fantasy,” the
testimony and evidence was more probative than prejudicial because the evidence allowed the
jury to understand Conte’s motive and plan to control Swartz. Here, the evidence was
relevant to Conte’s plan and mental state. Based on our standard of review, we cannot say
the circuit court erred.
31
Cite as 2015 Ark. 220
B. The Cleanliness of Conte’s Residence in Carson City, Nevada and Cabin in Duck
Creek, Utah
Next, Conte asserts that the circuit court erred by allowing testimony regarding the
lack of cleanliness at his homes. Conte claims that the evidence was not probative and was
offered only to prejudice Conte. A review of the record demonstrates that the testimony at
issue occurred during Swartz’s description of Conte’s homes in connection with questions
regarding the deterioration of their relationship. Thus, the evidence was relevant to Conte’s
mental state, plan and motive. Based on our standard of review, we do not find error.
C. A Phone Call to Swartz from Conte Where He Represented That He Was in a
Firefight in Afghanistan
Conte asserts that Swartz’s testimony, over his objection, regarding a phone call Conte
made where she could hear gunfire in the background and Conte told her he was in
Afghanistan and pinned under an SUV and was calling to tell her he loved her for possibly
the last time, was erroneously admitted. The State responds that the ruling was not
erroneous because the testimony was relevant to Conte’s mission to regain Swartz, and “win
her back,” and was connected to the murders because it was all part of his plan to regain
Swartz. Further, the State responds that the same testimony was admitted during Clark’s
testimony, without objection. Evidence that is merely cumulative or repetitious of other
evidence admitted without objection cannot be prejudicial. Wedgeworth v. State, 2012 Ark.
63, at 5 (citing Eliott v. State, 342 Ark. 237, 242, 27 S.W.3d 432, 436 (2000)). This court will
not reverse an evidentiary decision by the trial court in the absence of prejudice. Marks v.
State, 375 Ark. 265, 269, 289 S.W.3d 923, 926 (2008). Here, the evidence was relevant to
32
Cite as 2015 Ark. 220
demonstrate Conte’s state of mind, plan, and motive. We hold that the circuit court did not
abuse its discretion in allowing the testimony under Rule 403.
D. Emails Alleged to Have Been Authored by Conte From Swartz’s Email Account
Conte next asserts that the circuit court erred by allowing evidence that Conte sent
emails to friends, family members, and co-workers that Swartz had slept with a man, then
murdered him and fled to Mexico. The State responds that the emails showed Conte’s state
of mind and were relevant. The State further responds that any error was harmless because
the same testimony came in through two other witnesses, Ashley and Gathright, without
objection. We agree that the evidence was relevant to prove Conte’s plan, motive and state
of mind. Evidence that is merely cumulative or repetitious of other evidence admitted
without objection cannot be prejudicial. Wedgeworth, supra. This court will not reverse an
evidentiary decision by the trial court in the absence of prejudice. Marks, supra. We hold
that the circuit court did not abuse its discretion.
E. Introduction of Numerous Firearms, Magazines, Ammunition and a Book Called
“The History of Torture and Executions”
Conte also asserts that the circuit court erred when, over his objection, it admitted
evidence of a book titled “The History of Torture and Executions” that was seized from his
home in 2002. Conte contends that there was no relevancy to offering the book and it was
introduced to inflame the jury and prejudice Conte. The State responds that the testimony
at trial demonstrated that the victims had been executed and this evidence was thus, relevant.
During trial, the State contended that “these items collectively show that [Conte] possessed
the tools, ability and knowledge” to commit the murders. The record demonstrates that
33
Cite as 2015 Ark. 220
Erickson testified that there was an “element of these two individuals being in—under the
control of another individual . . . at the time of their death.”
This court rejects the admission of inflammatory evidence where claims of relevance
are tenuous and prejudice is great, and expects the trial court to carefully weigh the probative
value of photographs against their prejudicial nature. See Camargo v. State, 327 Ark. 631,
637–38, 940 S.W.2d 464, 467 (1997) (holding that we require the trial court to first consider
whether such evidence, although relevant, creates a danger of unfair prejudice, and then to
determine whether the danger of unfair prejudice substantially outweighs its probative value);
see also Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980). Relevant evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair prejudice.
Ark. R. Evid. 403. Evidence is admissible if it tends to shed light on any issue, to
corroborate testimony, or if it is essential in proving a necessary element of a case, is useful
to enable a witness to testify more effectively, or enable the jury to better understand
testimony. Weger v. State, 315 Ark. 555, 869 S.W.2d 688 (1994). Here, an essential element
of the offenses charged was intent; to secure a conviction for capital murder, the State had
to prove that appellant caused the victims’ deaths with a premeditated and deliberated
purpose. The State offered two books, “Quiet Killers, Silenced Weapons in War and
Espionage” and “The History of Torture and Executions,” to show Conte’s knowledge and
ability to commit the crimes. Moreover, the record reveals that the titles of the books were
introduced but no portions of the books were read to the jury and no witness testified as to
the content of the books. Because the books were relevant to prove an element of the
34
Cite as 2015 Ark. 220
State’s case, we hold that the circuit court did not abuse its discretion in admitting this
evidence and affirm the circuit court on this point.
This case involves a sentence of life imprisonment without parole; therefore, it is
subject to review under Arkansas Supreme Court Rule 4-3(i). As required under Ark. Sup.
Ct. R. 4-3(i), the record has been examined for all objections, motions, and requests made
by either party that were decided adversely to Conte, and no prejudicial error has been
found.
Affirmed.
Special Justice ALVIS NOYL HOUSTON joins in this opinion.
HART, J., concurs.
WOOD, J., not participating.
JOSEPHINE LINKER HART , Justice, concurring. I write separately because,
although this case must be affirmed, I am concerned that Dr. Conte may not have received
a fair trial. I am most troubled by two points: the delay in bringing the case to trial and the
circuit court’s prohibiting Dr. Conte from presenting a “Zinger” defense. However, as
argued, these points do not compel this court to reverse this case.
First, Conte asserted that the death of his alibi witness, Pringle, constituted prejudicial
delay that warranted the dismissal of the information. He noted that in Scott v. State, 263 Ark.
669, 566 S.W.2d 737 (1978), this court held that prejudicial delay in bringing charges can
violate a defendant’s right to due process, and the charges should be dismissed unless the State
comes forward with a “satisfactory reason” for the delay. He asserts that here, the circuit
35
Cite as 2015 Ark. 220
court “essentially signed off on Barrett (the investigating officer) shopping the case to three
different prosecutors.” Conte notes that no additional evidence was found prior to bringing
the charges. He contends that Hiland’s decision to bring the charges was related to his
campaign for prosecutor. Conte points to the fact that Elliot’s daughter, Ashley Waldron,
appeared in a televised campaign commercial for Hiland, and although the circuit court
dismissed it as not relevant to bias, Conte contends that it violated fundamental fairness.
The fact that Hiland chose to bring the case, when his predecessors decided against it,
cannot support reversal of this case. That situation can be ascribed to Hiland’s being more
aggressive than the men who preceded him in office. The problem with this argument is that
Dr. Conte’s only claim of prejudice was the death of a single alibi witness, Pringle, whose
account of Dr. Conte’s whereabouts fell far short of proving that Dr. Conte was not at the
crime scene. Moreover, Pringle’s statements regarding Dr. Conte’s location could have been
introduced through other witnesses.
In my view, the prejudice lay in the fact that over the nine years between the
commission of the murders and the filing of the charges against Dr. Conte, the statements of
other potential suspects simply disappeared from the police files. This “missing” evidence
includes the taped statement made by alleged bookmaker Raymond Merrill, who broke
Carter Elliott’s jaw before the murder; Joe Garrison, who allegedly engaged in high-stakes
gambling with Elliott and to whom Elliott owed $50,000; Danny Cook, a man who had
confronted Elliott about having an affair with his wife; and Dan West, an employee of Elliott’s
who was terminated a week before the murders and had allegedly threatened to kill Elliott if
36
Cite as 2015 Ark. 220
he were fired. Also, Jackie Dumaglosky, the man who had reported West’s, threat could not
be located and was believed to have moved out of state. The spoliation of potential
exculpatory evidence—if argued—could have made a more compelling argument. This is
particularly so in this case, because no evidence, save the testimony of two jailhouse snitches,
put Dr. Conte anywhere near the crime scene at the time of the murders.
The second point that causes me significant concern was how Dr. Conte’s appellate
counsel challenged the circuit court’s denial of his Zinger defense. Prior to trial, the State filed
a motion to preclude Dr. Conte from inferring that others had committed the murders. They
sought to exclude testimony about Danny Cook, Raymond Merrill, Joe Garrison, and Dan
West. The State prevailed on its motion
On appeal, Dr. Conte argues that the motion in limine prevented him from being able
to present a complete defense. However, he undercuts this argument by asserting that the
Zinger standard that the circuit court relied on was “too narrow.” In Zinger v. State, 313 Ark.
70, 852 S.W.2d 320, the supreme court held that the standard for admissibility of evidence
tending to incriminate other persons in the crime being charged is as follows:
A defendant may introduce evidence tending to show that someone other than
the defendant committed the crime charged, but such evidence is inadmissible unless
it points directly to the guilt of the third party. Evidence which does no more than
create an inference or conjecture as to another's guilt is inadmissible.
Zinger, 313 Ark. at 75-76, 852 S.W.2s at 323 (quoting State v. Wilson, 367 S.E.2d 589 (N.C.
1988)). This argument was inefficacious because the Zinger rule was expressly upheld by the
Supreme Court of the United States in Holmes v. South Carolina, 547 U.S. 319 (2006).
Essentially, Dr. Conte’s appellate counsel was conceding that the circuit court’s ruling
37
Cite as 2015 Ark. 220
followed the binding precedent of this court and of the Supreme Court of the United States.
I note that the case before us did not present a typical Zinger situation in which the
identity of the third person is unknown and completely speculative. Zinger involved proffered
testimony concerning another crime of a similar nature that occurred after the appellant had
been arrested for the crime he was being tried for, the implication being that the perpetrator
of the subsequent crime committed both. Zinger’s closest progeny, Birts v. State, 2012 Ark.
348, likewise involved a healthy dose of speculation about an unknown perpetrator. In Birts,
the defendant wished to introduce forensic evidence contributed by an unknown person other
than the defendant that was found in the victim’s apartment and vehicle.
While it is true that Zinger seems to require an evidentiary link that points directly to
the guilt of a third party, in State v. Harrison, 2012 Ark. 198, 404 S.W.3d 830, this court held
that a direct link was established by a third party’s testimony. Likewise, in Harmon v. State,
2014 Ark. 391, 441 S.W.3d 891, testimony that a third person was in possession of Harmon’s
car at the time of the murder established that direct link.
I submit that Zinger is not the impediment to Dr. Conte prevailing on appeal, rather
it is a case that purports to be Zinger’s progeny, Armstrong v. State, 366 Ark. 105, 233 S.W.3d
627 (2006). On appeal, the State cites Armstrong as authority for upholding the circuit court’s
ruling. The Armstrong court stated:
Armstrong also contends that the circuit court erroneously excluded evidence
he wanted to present of controversies between Kim Waller and her sisters and the
victim, including an audio tape which contained statements by the Waller sisters
threatening to kill Dashunda Armstrong. He claims that the circuit court erroneously
construed Zinger v. State, 313 Ark. 70, 852 S.W.2d 320 (1993), as requiring that
evidence of another's guilt could only be presented where it pointed directly to the
38
Cite as 2015 Ark. 220
other perpetrator's guilt. He asserts that he had the names of all three Waller sisters
who had threatened his wife; records of the violent encounters between the women
including a court case; records from the prosecutor’s office that showed mutual
harassment between Mrs. Armstrong and Ms. Waller; and the presence of Kim Waller
at the crime scene the night of the murder. He urges that the circuit court trammeled
his Fourteenth Amendment right to due process and a fair trial by denying him the
opportunity to have the jury decide whether the evidence of Mrs. Armstrong's battles
with the Waller sisters cast a reasonable doubt on the prosecution's theory that he
perpetrated the murders.
....
While Armstrong possessed a tape which contained the voices of several Waller
sisters threatening Mrs. Armstrong and evidence that Armstrong's wife and several of
the Waller sisters had harassed one another, he presented no direct or circumstantial
evidence which connected any of the Waller sisters to his wife’s death. As the State
points out, two of the Waller sisters, Karen and Yolanda, whom their sister Kim
identified as being the voices on the tape sought to be admitted by Armstrong, were
in Forrest City the night of Dashunda Armstrong’s murder, according to Karen’s and
Kim’s testimony presented to the circuit court. In addition, despite Kim Waller’s
presence in the area of the crime scene the night of the victim’s death, Armstrong
failed to connect her presence with the possibility of her guilt, especially when she
testified that she was only in the area because she received a cellular telephone call
from Armstrong to come pick him up.
To be admissible, this court has held that there must be a sufficient connection
between the evidence that a third party may have committed the crime and the
possibility of another person's guilt. See Echols v. State, 326 Ark. 917, 936 S.W.2d 509
(1996). While Armstrong claims that Zinger permits evidence of another's connection
to the crime, he is mistaken. The Zinger court was exceedingly clear that any evidence
pertaining to the possibility of a third-party’s guilt in the crime charged must point
directly to the guilt of the third party. See, e.g., Echols v. State, supra. Because the
evidence pointed to by Armstrong does no more than create a suspicion or conjecture
that the Waller sisters may have played a role in Dashunda Armstrong’s death, the
circuit court did not abuse its discretion in rejecting the evidence.
Armstrong, 366 Ark. at 116–18, 233 S.W.3d at 636–37.
In my view, Armstrong was wrongly decided. However, in Armstrong v. State, 373 Ark.
347, 284 S.W.3d 1 (2008), the Rule 37 case, far from retreating from the erroneous holding,
39
Cite as 2015 Ark. 220
this court compounded the error by declining to correct the mistake and held that the direct
appeal comported with Zinger and thus with Holmes v. South Carolina, 547 U.S. 319 (2006).
I note that Holmes held that the exclusion of defense evidence of third-party guilt denied
defendant a fair trial. It is a case that favors admission of this type of testimony. Armstrong
stands Holmes on its head. Armstrong sanctions the very procedure, which was employed in
the case before us, that Holmes found unconstitutional. This misstep in our Zinger
jurisprudence was not challenged on appeal. While I am mindful that a circuit court has
broad discretion on whether to admit or exclude evidence, that discretion does not extend
to denying a defendant a fair trial.
Benca & Benca, by: Patrick J. Benca, for appellant.
Dustin McDaniel, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
40