Conte v. State

• Decision Date: 21 May 2015
• Docket Number: No. CR–13–721,CR–13–721
• Citation: 463 S.W.3d 686,2015 Ark. 220
• Parties: Richard Ralph Conte, Appellant v. State of Arkansas, Appellee
• Court: Arkansas Supreme Court

2015 Ark. 220

463 S.W.3d 686

Richard Ralph Conte, Appellant

v.State of Arkansas, Appellee

No. CR–13–721

Supreme Court of Arkansas.

Opinion Delivered May 21, 2015

Benca & Benca by: Patrick J. Benca, Little Rock, for appellant.

Dustin McDaniel, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.

Opinion

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, 2014 WL 4649590 (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 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 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 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 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 [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...