Conley v. State

• Decision Date: 19 April 2001
• Docket Number: No. 1999-KA-00521-SCT.,1999-KA-00521-SCT.
• Citation: 790 So.2d 773
• Parties: Glen L. CONLEY, Jr. a/k/a Glen Conley, II v. STATE of Mississippi.
• Court: Mississippi Supreme Court

790 So.2d 773

Glen L. CONLEY, Jr. a/k/a Glen Conley, II v. STATE of Mississippi.

No. 1999-KA-00521-SCT.

Supreme Court of Mississippi.

April 19, 2001.

Rehearing Denied July 19, 2001.

Gary L. Honea, Magnolia, Attorney for Appellant.

Office of the Attorney General by Deirdre McCrory, Attorneys for Appellee.

Before PITTMAN, C.J., MILLS and WALLER, JJ.

MILLS, Justice, for the Court:

s 1. Glen L. Conley, Jr., was convicted of capital murder in the Circuit Court of Pike County in May of 1994. He was sentenced to life imprisonment without the possibility of parole. Aggrieved, Conley appeals to this Court.

FACTS

s 2. Whitney Berry was born out of wedlock to Teronda Berry¹ on October 28, 1990. Glen Conley maintains that he is Whitney's father though he has denied paternity in the past. From 1990 to 1994, the relationship between Conley and Teronda and Whitney was intermittent at best. During this time Conley did not purchase diapers, milk, or clothing for Whitney, nor did he pay child support.

s 3. In early April, 1994, Conley was fired from his job with Baton Rouge Home Health. Shortly thereafter, he inquired with the State Farm Insurance office in Hammond, Louisiana, about an insurance policy on Teronda and Whitney. Conley told agent Toni Pea that he wanted information on life insurance policies because the Louisiana Department of Human Services was requiring that he purchase insurance on one of his children. This statement was later proven to be false.

s 4. On April 20, 1994, Conley attempted to purchase a life insurance policy on Whitney and Teronda. State Farm agent Joyce Jones told Conley that Whitney and Teronda would have to be present in order to complete the applications for life insurance. Conley left the State Farm office, visited Teronda, whom he had not seen in over a year, and persuaded her to go to State Farm with him to sign the necessary paperwork for the insurance. Conley purchased a $100,000 life insurance policy with an accidental death provision on three-year-old Whitney and named himself as the owner and beneficiary of the policy. In addition, Conley purchased the same type of life insurance policy on Teronda and named himself as the successor beneficiary after Whitney. Under the terms of the policies, if Teronda and Whitney were to die contemporaneously in an accident, Conley would receive $400,000 in life insurance proceeds.

s 5. Once the applications were signed, Conley asked Jones when the policy would go into effect. Jones told him that if he paid one month's premium the policy would be good for thirty days while the underwriting department checked out the policy. Conley then paid the first month's premium in cash s 6. On Saturday, May 21, 1994, Conley arrived at Teronda's home unannounced and invited Teronda and the children on a picnic. Teronda took her two sons, her nephew, and Whitney on the trip with Conley. Conley's cousin, Johnny Lewis, also went along. All eight traveled in a subcompact car with the children sitting on the laps of the adults. Teronda assumed they were going to Zemurray Park in Hammond, Louisiana. However, after they passed the final Hammond exit, Conley stated that they were going to Percy Quin State Park in Pike County, Mississippi. Conley then stopped at a convenience store in Mississippi and bought some beer, which he and Lewis began to drink.

s 7. After arriving at the park, Conley suggested that the group rent paddle boats. Teronda, who could not swim, did not want to go, but Conley convinced her that it would be fun. Park personnel placed child-sized life jackets on the children and adult-sized jackets on the adults. Conley, Teronda, Whitney, and Ken got into one boat, and the rest of the group got into another boat. During this outing, Conley traveled outside the roped-off paddle boat area. Teronda complained to Conley that they were going too far from the shore, but Conley refused to turn around.

s 8. After Conley paddled almost 3,000 feet from the shore, he stopped the boat. Conley then pushed Teronda, knocking Ken, who was in Teronda's lap, into the water. As Teronda attempted to pull Ken back into the boat, she noticed that Whitney was missing from the boat. Teronda then saw Whitney floating on her back with her head above the water with her life jacket on about twenty or thirty feet from the boat. At this time, Whitney was saying "Daddy, please help me. Daddy, please help me." Conley dove into the water to get Whitney. Teronda saw Conley take Whitney into his arms, go underwater, and pull Whitney down with him. After a few minutes, Conley surfaced with Whitney's life jacket in his hands. Conley claimed that he could not find Whitney but found the life jacket on the floor of the lake.

s 9. Several nearby fishermen saw the commotion at the paddle boat and went over to help. One fisherman searched for Whitney for an hour and a half. All of the witnesses testified that they never saw Conley in the water making any effort to find Whitney. Conley returned to the shore in the boat of Craig Crozier, a fisherman, who testified that Conley told him the missing child was not his but rather the child of a friend.

s 10. The next day Conley contacted State Farm Agent Jones to begin the process of collecting the benefits of Whitney's life insurance policy. On Monday, May 23, 1994, Whitney's body was recovered from the lake. Conley continued to call once a week attempting to determine when the proceeds would be paid.

s 11. Due to the bi-state location of the occurrence and the parties, both Pike County and Tangipahoa Parish authorities cooperated in the investigation. In addition, the authorities cooperated with State Farm agents and employees who were conducting their own investigation. C.V. Glennis, then Sheriff of Pike County, repeatedly tried to contact Conley to take his statement, but Conley never made himself available for this purpose. However, on June 29, 1994, Conley gave a statement to State Farm employee Ruth Granning.

s 12. For the next couple of years, Conley tried to collect the proceeds of the policy. In 1996 State Farm notified Conley's attorney that it was going to interplead the funds into court and hold a trial on the issue of Conley's paternity of Whitney. Conley then offered to settle his claim for less than fifty cents on the dollar.

s 13. In August, 1997, Conley was indicted and charged with the murder of Whitney Berry while engaged in the commission of the crime of kidnapping on Count I and with the kidnapping of Teronda Berry on Count II. At trial, Teronda testified for the State. During cross-examination and then again on re-direct, Teronda admitted that she lied in statements she had given the police and State Farm about Whitney's death. She stated that she had been covering up for Conley because she cared for him and did not want him to get into trouble. At this point the defense counsel insisted that Teronda be read her Miranda rights and appointed an attorney. Teronda then asserted her Fifth Amendment rights in response to all further questions.

s 14. At the close of the trial, the jury returned a verdict of guilty of capital murder. Shortly thereafter the sentencing phase began. The State put on two witnesses and Conley one. The judge then excused the jury in order to discuss Conley's right to testify. Court was recessed for a short time so that Conley could confer with his counsel about this matter. Upon returning to the courtroom, Conley physically attacked the prosecutor, and chaos ensued. During this disturbance, the jury members, who were located in a room near the courtroom, expressed fear for their safety and asked that their room be locked. Ultimately order was restored, and the jury returned to the courtroom. The jury heard additional evidence and retired to consider the sentence. The jury was unable to reach a verdict as to sentence, so the court sentenced Conley to life without parole.

DISCUSSION

I. WHETHER THE CIRCUIT COURT ERRED IN ALLOWING THE STATE TO AMEND THE INDICTMENT BY CHANGING THE DATE OF THE ALLEGED CRIME FROM MAY 23, 1994, TO MAY 21, 1994.

s 15. On June 24, 1998, five days prior to trial, the State moved the circuit court to amend Conley's indictment, changing the date of the alleged crimes from "on or about May 23, 1994" to "on or about May 21, 1994." The circuit court found the amendment of the date to be an amendment as to form only and granted it on June 29, 1998, the day of the commencement of the trial. Conley admits that this issue is a "close call," but argues that he was prejudiced by this change.

s 16. The question of whether an indictment is fatally defective is an issue of law and enjoys a relatively broad standard of review by this Court. Peterson v. State, 671 So.2d 647, 652 (Miss. 1996). A trial court has no authority to grant substantive amendments to indictments. Baine v. State, 604 So.2d 258, 260 (Miss.1992). However, "unless time is an essential element or factor in the crime, an amendment to change the date on which the offense occurred is one of form only." Id. at 261.

s 17. In Griffin v. State, 540 So.2d 17, 21 (Miss.1989), we stated:

The test of whether an accused is prejudiced by the amendment of an indictment or information has been said to be whether or not a defense under the indictment or information as it originally stood would be equally available after the amendment is made and whether or not any evidence [the] accused might have would be equally applicable to the indictment or information in the one form as in the other; if the answer is in the affirmative, the amendment is one of form and not of substance.

s 18. Conley's defense for the amended indictment was exactly the same as for the original indictment; therefore, the amendment did not in any manner affect the theory or defense of his case. Conley's sole defense under both indictments was that the death of Whitney Berry was the result of an accident. The amendment to the indictment was merely a...