State v. Conley, No. 37970-8-II (Wash. App. 6/8/2010)
| Decision Date | 08 June 2010 |
| Docket Number | No. 37970-8-II.,37970-8-II. |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. TAYLOR TOM CONLEY, Appellant. |
Appeal from Cowlitz Superior Court. Docket No: 06-1-00457-1. Judgment or order under review. Date filed: 07/08/2008. Judge signing: Honorable James E Warme.
Counsel for Appellant(s), Elaine L Winters, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA, 98101-3635.
Susan F Wilk, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA, 98101-3635.
Counsel for Respondent(s), Megan Whitmire, Benton County Prosecutor, 7122 W Okanogan Pl Bldg A, Kennewick, WA, 99336-2359, David Phelan, Cowlitz County Prosecuting Attorney's Of, 312 Sw 1st Ave, Kelso, WA, 98626-1739.
UNPUBLISHED OPINION
Taylor Tom Conley appeals his jury trial conviction for the aggravated first degree murder of Brian Swehla. Conley argues that the trial court erred when it (1) admitted evidence of a text message, sent from Swehla's cellular telephone after the alleged time of his death, for the limited purpose of controverting the time of death; (2) refused to give the jury his proposed instructions on how to evaluate in-custody witness and eyewitness evidence; and (3) gave an improper premeditation instruction. Conley also argues that the lead detective improperly commented on his (Conley's) exercise of his Fifth Amendment right to silence and that cumulative error denied him a fair trial. In his pro se Statement of Additional Grounds for Review1(SAG), he asserts that the trial court erred in denying his motion for a mistrial after at least one juror saw him in handcuffs in the hallway. We affirm.
On March 28, 2006, several boats moored in Columbia County, Oregon, were burglarized. Several guns were stolen from Taylor Tom Conley's father's boat and other nearby boats, including an old 12 gauge "pellet" shotgun, a .22 caliber automatic rifle, a Winchester semi-automatic 22 caliber firearm, and a Winchester 12 gauge shotgun.
On March 31, 2006, Amy Lynn Hardesty had been fighting with her boyfriend Brian Swehla at their home. Around 1:00 am, Hardesty's friend Wayne "Hillbilly" Hamrick picked her up, after which they stayed up all night and used methamphetamine.
Around 3:00 am, James Carroll Zebley, drove Conley to Conley's mother's house. Conley invited Zebley to participate in a burglary. Declining, Zebley remained behind, but he allowed Conley to take his truck at about 4:45 am. Conley did not return for about six hours.
Sometime between 6:00 and 6:30 am that same morning, Jennifer Perry, Ronald Weller-Childers' girlfriend, was in her bedroom in her home when she heard a gun discharge. It blew a half-dollar sized hole through her bedroom wall and deposited shot in her futon. In the adjoining room, Perry found Weller-Childers and Conley holding a 12 gauge shotgun; she told them to leave, which they did, at around 7:00 am.
Between 8:20 and 9:00 am, Swehla's neighbors Rosemary Madison Daly, and Carmen Eastlick, noticed two men emerging from a wooded area near Swehla's house, carrying backpacks and "rifles." 4A RP (June 5, 2008) at 405. Eastlick saw them run to a Toyota truck2 parked in a nearby church lot, throw some heavy items into the back of the truck, take off most of their clothing, and drive away. Eastlick called the sheriff's offices; the responding deputies noticed nothing wrong at Swehla's house.
At about 10:30 am, Conley returned to his mother's house with Weller-Childers. Zebley saw what he believed were some guns Conley had earlier shown him rolled up in a blanket in the truck bed. Conley told Zebley that he (Zebley) might not want the truck back because he (Conley) had committed some burglaries with it. Conley offered to buy the truck. Zebley declined. Driving Zebley's truck, Conley then drove Zebley and Weller-Childers to Kelso, dropped Zebley in Kelso, and left with the truck, agreeing to return it in an hour and a half. Conley did not return.3 Sometime after Conley dropped off Zebley, Weller-Childers apparently returned to Perry's house, quiet and upset.
Around 2:30 pm, Conley contacted Josh Derum at work and asked whether he wanted to buy some stolen guns, one of which he described as a nickel-plated 12 gauge shotgun. Derum replied that he was not interested. Conley told Derum that "he needed some money to get out of town because he just put a hole in somebody's head." 3 Report of Proceedings (RP) (June 4, 2008) at 373. Derum did not contact law enforcement.
Later that evening, as it was becoming dark, Conley returned to Perry's house, carrying some "stuff" that he was trying "to get rid of," including what appeared to be a musical keyboard or a laptop computer. 6 RP (June 9, 2008) at 804. Perry heard Conley say under his breath that he had shot someone. Sometime that same evening, Perry's friend Kevin "Canine" Brown,4 4A RP (June 5, 2008) at 469, an African-American man, came to her house carrying a shotgun stuffed in a duffle bag, refused to leave, and stayed for three days.
In the meantime, around daybreak that same day, Hardesty and Hamrick drove to Packwood, stopping for breakfast around 8:30 am.5 Hamrick received a text message, apparently sent from Swehla's cellular telephone around 9:12 am that morning, which stated something like, "Where is you?" 2 RP (June 3, 2008) at 139. Hamrick showed this message to Hardesty.
Hardesty returned to Swehla's house around 8:30 or 9:00 pm, discovered him dead on his bedroom floor, and left for her grandmother's house about five to seven minutes away. Hardesty did not mention that Swehla was dead; instead, she told her grandmother, Taletha Buell, that she (Hardesty) was concerned about Swehla, who had a history of being suicidal, and asked Buell to check on him. Buell's daughter (Hardesty's mother) drove Buell to Swehla's house, where they found Swehla dead on his bedroom floor in a pool of blood, next to his gun safe. They immediately called 911.
Cowlitz County deputies and forensic investigators from the Washington State Patrol Crime Lab determined that (1) someone had entered Swehla's house by kicking in the door to the attached garage; (2) Swehla had been beaten with a straight, narrow, "rod-like" object and shot with a .22 caliber gun in or near one of the bedrooms;6 and (3) he had been shot in the head with a shotgun after dragging himself from the other bedroom into the master bedroom. 5 RP (June 6, 2008) at 742. They found (1) two unspent 12 gauge shotgun shells on the kitchen floor; (2) two.22 caliber shell casings, fired by the same gun, in the hallway leading to the bedrooms; and (3) two .22 caliber bullets (fired by the same gun that had fired the two .22 caliber shell casings) in a closet at the end of the hallway. The deputies and investigators did not find any blood or finger prints from Conley or Weller-Childers in the house.7
A "couple of days" later, Conley telephoned Derum again and offered to sell him a pool table and a "Deuce Deuce," which Derum understood to mean a .22 caliber firearm. 3 RP (June 4, 2008) at 374. Again, Derum refused. On April 3, Derum read about Swehla's murder in the paper, immediately contacted the Sheriff's Office, reported his contacts with Conley, and provided a written statement.
On April 7, Conley attempted to sell several items at Darrin Wolf's house. Conley told Robert Courser that he was trying to leave town because deputies had questioned him about a murder. Courser and his friend James Patrick Stehman,8 accompanied Conley to Conley's mother's house to see what Conley was selling. While there, Conley attempted to fix a small .25 or .22 caliber handgun. Conley told Courser that he (Conley) "had some things he had to take care of," mentioned some "loose ends," 4B RP (June 5, 2008) at 591, and told Stehman that he (Conley) wanted to find "Ronnie" before the deputies found him because "[Ronnie]" was "the only thing that linked" Conley to "what had happened."9 5 RP (June 6, 2008) at 770.
Deputies interviewed Hardesty several times. She described her argument with Swehla, her travels with Hamrick on the day of the murder, and the text message from Swehla's phone to Hamrick's phone. But she initially denied having stopped at Swehla's house before sending her grandmother to check on him. After the deputies suggested that they might have seen her on a surveillance tape from Swehla's house,10 she admitted that she had gone into Swehla's house before driving to her grandmother's house. Hardesty gave Hamrick's cellular telephone to the deputies, from which they photographed the text message from Swehla's phone.
The same day that Derum contacted the Sheriff's Office, deputies interviewed Conley. Deputy Sidney Ackler mentioned to Conley that the deputies could take partial latent prints from ammunition and shotgun shells. Conley told the deputies that he was living in his mother's house.
A "couple of days" after April 3, a retired deputy told Ackler that he should talk to Perry, who had "come to his [the retired deputy's] home." 3 RP (June 4, 2008) at 315. After interviewing Perry, deputies interviewed Weller-Childers, who implicated Conley in the murder.
The deputies immediately obtained a search warrant for Conley's mother's house, which they executed on April 8. They discovered some partially burned shotgun shell casings in a sauna furnace in an unattached outbuilding. In Conley's bedroom, they found a "float coat" stolen during the March 28 boat burglaries. 3 RP (June 4, 2008) at 320-21.
On April 10, deputies located the truck that Eastlick had described; it was Zebley's truck. With Zebley's permission, the deputies impounded and searched the truck....
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