Dyer v. State

• Citation: 36 S.W.3d 724
• Decision Date: 25 January 2001
• Docket Number: 00-500
• Parties: GLENDA BURYL DYER, APPELLANT; VS. STATE OF ARKANSAS, APPELLEE;00-500 25 January 2001 SUPREME COURT OF ARKANSAS APPEAL FROM THE PIKE COUNTY CIRCUIT COURT, NO. CR 99-31; HON. CHARLES A. YEARGAN, JUDGE; AFFIRMED. DONALD L. CORBIN, Associate Justice On the evening of
• Court: Supreme Court of Arkansas

GLENDA BURYL DYER, APPELLANT VS STATE OF ARKANSAS, APPELLEE

No. CR 00-500

25 January 2001

SUPREME COURT OF ARKANSAS

APPEAL FROM THE PIKE COUNTY CIRCUIT COURT, NO. CR 99-31; HON. CHARLES A. YEARGAN, JUDGE; AFFIRMED.

DONALD L. CORBIN, Associate Justice

On the evening of December 4, 1998, William "Bill" Dyer was found dead on his driveway in Horatio, Arkansas. He had been shot through the neck with a high-powered rifle. The investigation of the crime led police to suspect that Dyer was shot with his own 30/30 rifle by Steven Swim, a man who worked with Dyer's wife, Appellant Glenda Buryl Dyer. Police also suspected that Appellant had solicited Swim to kill her husband. Before police could make an arrest, however, Swim committed suicide by a single shotgun blast to his chest. Police subsequently arrested Appellant for the murder. Appellant was convicted in the Pike County Circuit Court of first-degree murder and sentenced to life imprisonment. On appeal, Appellant argues that the trial court erred by (1) admitting statements made by a coconspirator, under Ark. R. Evid. 801(d)(2)(v); (2) denying her motion for continuance to obtain anindependent mental evaluation; and (3) admitting testimony from six witnesses concerning prior threats made by Appellant. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. 1-2(a)(2). We find no error and affirm.

I. Statements of Coconspirator

For her first point for reversal, Appellant argues that the trial court erred in admitting testimony from Steven Swim's wife, Silvia Swim, and her son, David Swim, concerning statements that Steven made to them. Collectively, Steven told them that a blonde woman in her forties would bring them some money, $10,000 to $15,000, as payment for Swim's role as a hit man. The trial court allowed the statements under Rule 801(d)(2)(v), as being statements by a coconspirator made in the course of and in furtherance of the conspiracy. Appellant challenges the trial court's findings that (1) Appellant and Swim were involved in a conspiracy to kill Bill Dyer, and (2) the statements were made by Swim in furtherance of the conspiracy.

Rule 801(d)(2)(v) provides that a statement is not hearsay if it is offered against a party and it is a statement by a coconspirator of a party made during the course and in furtherance of the conspiracy. Before such statements can be admitted, the State must make a prima facie showing that a conspiracy existed between the declarant and the defendant.¹ See Spears v. State, 321 Ark. 504, 905 S.W.2d 828 (1995); Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992); Smithey v. State, 269 Ark. 538, 602 S.W.2d 676 (1980). The statements themselves may be considered along with other independent evidence in determining the existence of a conspiracy. Haire v. State, 340 Ark. 11, 8 S.W.3d 468 (2000) (citing Bourjaily, 483 U.S. 171). The sufficiency of the evidence of a conspiracy is a preliminary matter decided by the trial court. Spears, 321 Ark. 504, 905 S.W.2d 828. As with any other evidentiary matter, we will not reverse the trial court's ruling absent an abuse of discretion. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000).

In the present case, the trial court found that the State had made a prima facie showing that a conspiracy to kill Bill Dyer existed between Appellant and Steven Swim. The State presented evidence that Appellant and Swim worked together at the Regional Care Facility (RCF) in DeQueen. Appellant was Swim's supervisor. About one month prior to the murder, Debbie Hibbs, a coworker who was also Swim's girlfriend, overheard Appellant say to Swim that she wished she knew someone that could kill her husband; Swim replied that he might know somebody that could help her, and then just kind of laughed. Appellant made numerous other threats and statements regarding her desire to be rid of her husband. For instance, Appellant had previously made inquiries about killing her husband with poison, so that his death could not be traced to her. She also made the statement that the only way she could get out of her marriage was if her husband were dead.

Medical evidence showed that Bill Dyer had been killed by a high-powered rifle shot to the neck. Investigation of the scene revealed that the fatal shot was likely fired from inside an old farmhouse situated on the Dyers' property. Police found a bullet hole in the screen of the farmhouse window and an expended shell casing nearby. Less than two months prior to his murder, Dyer discovered that one of his rifles, a 30/30 caliber Winchester hunting rifle, was missing. David Swim testified that Steven Swim was not a hunter and did not own a gun. About one month prior to Dyer's murder, however, Steven Swim somehow obtained possession of Dyer's missing rifle. Jason Hibbs testified that sometime in late October or early November 1998, he discovered a 30/30 hunting rifle in Swim's tool box. Jason took the gun hunting and also fired it in his father's backyard. Shell casings recovered from that location were given to police. The police, in turn, sent them to the state crime laboratory to be compared against the shell casing found at the crime scene and some casings found in the victim's gun cabinet. Ballistics testing revealed that all of those shell casings were fired from the same gun.

The month before the murder, right around the time that he obtained possession of Dyer's 30/30 rifle, Steven Swim told his wife, Silvia, not to worry about money, because there is a woman in her forties that will "bring you some money," about $15,000. When Silvia asked why, Swim told her that whatever happened, she would hear about it on the radio. Similarly, Swim told his stepson, David, that a blonde lady in her forties would bring them a bag of money, $10,000 to $15,000. When David asked why, Swim told him it was for "being a hit man." Prior to his suicide, Swim told his wife that the woman in her forties was Appellant.

On the date of the murder, Appellant was working at the RCF with Swim. Late in the afternoon, Appellant left work for the purpose of retrieving Christmas decorations from her house to bring back to the RCF. Around 3:15 or 3:20 p.m., Appellant was seen at DeQueen High School, talking to her husband, who was a teacher there. Two students observed Appellant in her white Ford pickup truck near the school parking lot. Inside the truck, slumping down in the passenger's seat, was a man who appeared to be trying to hide his identity. The man had facial hair and was wearing a black leather jacket. Other evidence showed that Swim had facial hair and wore a black leather jacket.

Between 4:10 and 4:15 that same afternoon, a witness saw Appellant driving her white Ford pickup truck toward her house in Horatio. Around the same time, Appellant's neighbor observed a white Ford truck of the same make and model as Appellant's driving in the direction of her residence. The neighbor heard a gunshot a short time later, and then saw the white Ford truck drive away from the residence.

During this same time, coworkers noticed that both Appellant and Swim were absent from the RCF. Additionally, Swim's wife telephoned the RCF looking for Swim around 4:00 p.m., but he was not there. Both Appellant and Swim returned to the RCF later that afternoon. Dyer's body was discovered by his daughter, Kelli, around 6:00 p.m. Kelli then called Appellant at work and told her that something was wrong with her dad. Kelli did not tell Appellant that Dyer was dead; however, upon receiving the call, Appellant became hysterical and began screaming "He's dead, he's dead."

On February 1, 1999, around the time that the police investigation began to focus on him, Steven Swim attempted suicide by drug overdose. One month later, on March 3, 1999, Swim was scheduled to take a polygraph examination regarding Dyer's murder; he never showed. The next day, Swim's body was discovered in a concrete culvert near his home. Swim left a note to his wife, saying that he could not take the pressure anymore. According to the medical examiner, the official cause of his death was suicide by a single shotgun blast to the chest.

After his suicide, Kelli Dyer began to suspect that Appellant had put Swim up to committing the murder. As a result, she began to prod Appellant about her role in the murder. One day, in front of her two sisters and her aunt, Kelli asked Appellant "How did you get Steven to kill our dad?" Appellant did not deny playing a part in her husband's murder. Instead, she rather calmly responded that she did not do anything that her daughters did not want done before.

After Swim's suicide, his wife, Silvia, went to the police and told them about the statements that Swim had made to her and David regarding the money that Appellant would bring to them. At the direction of the police, Silvia had conversations with Appellant, on the telephone and in person, about the money. During one of those conversations, Silvia informed Appellant that her son, David, knows everything about the murder. According to Silvia, Appellant became very upset and said "David knows?" Appellant then assured Silvia that she would give her money, but that she could not get the insurance money until her name was cleared. Appellant told Silvia in no uncertain terms: "If I go down, there is no money." Other evidence showed that Bill Dyer was insured for over $200,000, and that Appellant was the primary beneficiary of the policies. Additionally, at the time of trial, Appellant was receiving Dyer's retirement pay, which was approximately $1,680 per month.

In light of the foregoing evidence, we conclude that the trial court did not err in finding that there was prima facie evidence of a conspiracy between Appellant and Swim to kill Bill Dyer. We conclude further that the statements made by Swim to his wife and son were made during the course and in furtherance of the conspiracy. In the first place, the statements were made during the...