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Kimberly Long

Other Riverside County, California exonerations
https://www.law.umich.edu/special/exoneration/PublishingImages/Kimberly_Long1.jpeg
At 2:09 a.m. on October 6, 2003, a hysterical 27-year-old Kimberly Long called 911 in Corona, California, saying her boyfriend, 31-year-old Oswaldo “Ozzy” Conde was badly injured and needed emergency medical attention. Police and paramedics arrived at the home several minutes later. They found Conde slumped over on a couch with a massive head wound. Blood was spattered on every wall of the room.

Long, a licensed vocational nurse, had reported in her 911 call that she thought Conde was still breathing. But paramedics quickly determined that he was dead—his skin was ashen, he was cold to the touch, and early signs of body decomposition were present. Just over a month later, on November 10, 2003, Long was arrested and charged with murdering Conde.

The prosecution’s theory of what happened bordered on the impossible: In front of several friends after a day of bar-hopping and heavy drinking, Long and Conde had quarreled in their driveway around 11 p.m. Furious and intoxicated, Long climbed onto the back of a motorcycle driven by a friend, Jeffrey Dills, and left. Police said that Dills claimed he dropped Long back at the house around 1:20 or 1:25 a.m. and that during the next 40 minutes, Long clubbed Conde to death, cleaned herself in the couple’s hot tub, changed her clothes, disposed of the murder weapon and bloody clothes (neither of which was ever found despite police canvassing the area), and removed random items from the house to make it appear to be a robbery, such as a shotgun, a change bowl, and speakers to a stereo.

Long denied harming Conde and said Dills dropped her off about at 2:00 a.m. When she turned on a light and saw the blood, she called 911—twice.

Long went to trial in February 2005 in Riverside County Superior Court. A mistrial was declared when the jury was unable to reach a unanimous verdict. Jurors later reported their vote was 9 to 3 to acquit Long.

In December 2005, Long went to trial a second time. Neither the prosecution nor the defenses asked the pathologist who conducted the autopsy to estimate the time of Conde’s death. The pathologist testified that Conde died of blunt force trauma and that he had been struck on the right side of the head from three to eight times. The injuries could have been inflicted by just about any healthy person, he said.

Death occurred within 10 to 15 minutes after Conde was struck, the pathologist told the jury.

Paramedic John Wilson testified that he examined Conde and found no sign of life. He said Conde’s skin was cold, his pupils did not react to light and the blood was coagulated. “The blood had started to dry upon the floor,” he said. “It means that the death did not just happen within a matter of minutes.”

Firefighter Scott Dall, who also responded to the scene, testified that he noticed “lividity” in Conde’s arms and legs. Asked by the prosecutor to explain lividity, Dall said, “That would be the pooling of the blood going to the lower portions of the body, as it’s not being circulated throughout the body anymore. It tends to settle in the lower extremities or lower portions of the body.”

Dall said lividity was present in the arms and “upper extremities.” He said that meant the muscles “haven’t had viable oxygen or energy supply. As the muscles tend to cool and deteriorate, they tend to stiffen up.”

A forensic technician testified that blood was spattered 360 degrees around Conde’s body and was present on all four walls of the room.

Police testified that a sliding glass door to the back yard was open. Broken glass and some coins were strewn on the kitchen floor. A shotgun and shotgun shells were missing from a closet, as was a bowl of change from a kitchen cabinet, and speakers from a stereo in the living room. No murder weapon was found and there was no evidence that the sinks or showers had been recently used--every spigot and drain in the house was dry.

The prosecution’s primary focus was on Dills’s testimony that he dropped Long off around 1:30 a.m., as well as testimony from a neighbor who corroborated that timeline. The prosecution presented other testimony that attempted to portray Long as a woman who drank to excess and then got angry and violent.

Phillip Virga, who lived across the street from Long and Conde, testified that at 11:50 p.m., he heard a motorcycle revving inside the garage at Conde’s home. He said he heard a female voice he did not recognize. Virga said he yelled out a window, “It’s after midnight. Give us a break and let us get some sleep.” He said he went back to sleep, but was reawakened at 1:30 a.m. when he heard a loud motorcycle and then a car alarm. Ten minutes later, he said, police arrived.

However, Linda Alexander, another neighbor, testified she heard a motorcycle driving away and the car alarm around 2:00 a.m. Five minutes later, she heard Long outside screaming. Police arrived shortly thereafter.

Other neighbors heard various activity at the couple’s residence throughout the night--motorcycles, traffic, and people talking or arguing—between 11:50 p.m. and 2:00 a.m.

Because Dills died in a motorcycle accident before Long’s trial, the prosecution presented his testimony from a preliminary hearing during which Dills said he dropped off Long at the house at about 1:30 a.m. The testimony was problematic because although he was cross-examined, there were some things, including his level of intoxication, that were not probed. In addition, Dills, during an aside, told the judge at the hearing that he was under pressure and in such situations, he had trouble remembering things accurately.

Joe Bugarski, whom police had investigated and discarded as a possible suspect, testified that he and Long lived together for several years and had a son together. He said their relationship had deteriorated and that in March 2003, Long told him to move out. He recounted an incident in 2000 when he and Long argued and fought. He said she tackled him off a bicycle, and he slapped her several times. She grabbed a butter knife in the kitchen and he wrestled it away from her. He admitted he said, “Don’t ever do that again or I will kill you.” Bugarski was arrested for domestic violence at that time.

Bugarski also admitted that after he moved out, he stalked Long and Conde, he threatened to “kick [Conde’s] ass,” and told Long’s mother that he wanted to kill Conde.

The defense argued that Long had no reason to kill Conde, and that Conde’s former girlfriend, Shiana Lovejoy, with whom Conde had a child, had once threatened to slash Long and Conde’s throats. The defense claimed that Lovejoy was angry because after Conde moved in with Long, he stopped providing financial support.

Two weeks before Conde’s death, Lovejoy wrote a letter to Long claiming that Lovejoy was still romantically involved with Conde. Lovejoy called Long a “whore.” Lovejoy denied harming Conde, but admitted that she repeatedly called and left harassing voice messages. Long and Conde had called police and changed their phone number. Lovejoy came to the home in the days before the murder attempting to get some money from him. No one answered the door, even though the lights were on and the television could be heard. Lovejoy then used a black marker to write “asshole & deadbeat” on Conde’s white truck parked in front of the house. She also poured glue in the key slot of the truck. Lovejoy admitted that after Conde’s death, she received nearly $700 a month in Social Security payments on behalf of their son.

Long testified that she, Conde, Dills, and other friends went on a group motorcycle ride on the day of the crime. They started with a late morning breakfast at a restaurant, where she said she drank beer and had a shot of Jägermeister.

The group visited several taverns at which, Long admitted, she drank about 12 beers and 10 shots of hard liquor. At the last bar, Long said Conde became angry and accused her of being flirtatious with other men. She said she became angry as well, and that it erupted into a shouting and shoving incident in their driveway when they came home. She accused him of not “paying his share and being a loser and not having a job.” That’s when she left with Dills and went to his home. There she drank more liquor, spent time in a jacuzzi, and eventually told Dills she wanted to go home. She said she was dropped off around 2:00 a.m. and walked in to find Conde on the couch. The case essentially boiled down to the critical difference between what Dills said at the preliminary hearing—that he dropped off Long and remembered seeing 1:36 a.m. on his bedside alarm clock when he got home—and Long’s testimony that Dills dropped her off at 2 a.m.

During closing argument, Assistant District Attorney Jerry Fineman told the jury that Long came home drunk around 1:20 a.m., killed Conde, got rid of the murder weapon, then cleaned herself up before calling 911 at 2:09 a.m. On December 27, 2005, the jury convicted Long of second-degree murder.

The defense moved for a new trial. Riverside County Superior Court Judge Patrick Magers “reluctantly” denied the motion. Judge Magers said, “To make a perfectly clear record in this matter, if this was a court trial, if the Court would have heard the evidence in this case, I would have found the defendant not guilty. I would have found that the evidence was insufficient to prove beyond a reasonable doubt.”

Judge Magers said it was “troubling” that Dills’s preliminary hearing testimony played such a prominent role in the prosecution’s case even though the cross-examination of Dills was “as in most preliminary hearings, not extensive.” The judge also noted that Dills’s “level of intoxication was not fully addressed in the examination.”

Long was sentenced to 15 years to life in prison. She was allowed to remain free on bond while she appealed the conviction. In November 2008, the Fourth District California Court of Appeal upheld the conviction. On March 23, 2009, after the California Supreme Court refused further review, Long went to prison.

In 2010, Long reached out to the California Innocence Project (CIP) at California Western School of Law, which began reinvestigating the case. A federal petition for a writ of habeas corpus was filed, claiming that her conviction was not supported by the evidence. The petition was denied, although the federal judge noted that it was “unfortunate that [Long’s] conviction largely hinged on [Dills’s] preliminary hearing testimony.”

Long appealed and the Ninth Circuit U.S. Court of Appeals upheld the dismissal, ruling that it was constrained to decide whether the California appellate decision was unreasonable. The court held that it was not. The court noted, however, that “[w]ere we the jury, we might have entertained reasonable doubt.” One of the appeals judges went even further, saying, “I have grave doubts about whether the State has convicted the right person in this case.”

In 2012, CIP lawyer Alissa Bjerkhoel obtained DNA testing on a cigarette butt found in an incense tray on the table in the living room and speaker wires. The cigarette butt had not been in the home earlier in the day and the prosecution contended that Long had ripped the stereo from the speakers and hidden the stereo to make the scene look like a robbery had occurred. Male DNA that was not Conde’s was found on the cigarette butt. Long’s DNA was not found on the speaker wires, although a mixture of other individuals’ DNA was discovered. She also consulted with and obtained opinions from experts on time of death who concluded Conde’s death occurred at a time for which Long had an alibi.

In 2014, CIP filed a habeas petition in Riverside County Superior Court. It was summarily denied and the Fourth District California Court of Appeal upheld the ruling. A habeas petition was filed with the California Supreme Court based in part on the DNA evidence and the failure of Long’s trial defense attorney, deputy public defender Eric Keen, to present medical testimony relating to the time of Conde’s death.

The petition included a declaration from Dr. Harry James Bonnell, who had worked as a Chief Deputy Medical Examiner in San Diego and Chief Deputy Coroner in Hamilton County, Ohio. Bonnell said that, in his opinion, the post-mortem changes in Conde’s body could not have occurred in less than one hour. As a result, Bonnell said, the “time of death is more consistent with 11:00 p.m.” He said that based on phone records showing that an outgoing text message and phone call from Conde’s phone were made at 11:39 and 11:40 p.m. and if Conde was heard swearing in the garage at 12:30 a.m., then Conde died shortly thereafter.

A declaration from Dr. Zhongxue Hua, a forensic pathologist at the Albert Einstein College of Medicine, also was presented with the petition. Hua concluded that Conde died “long before 1:20 a.m.” based upon the evidence of lividity and rigidity. Between them, Bonnell and Hua said they had performed about 10,000 autopsies.

The petition also noted that Keen’s defense file contained a recording of a police interview with Dills during which Dills described what clothing Long was wearing on the night of the crime. That description matched precisely the clothing that Long was wearing when police arrived in response to her 911 call. The petition said that Keen had provided an inadequate legal defense by failing to present that portion of Dills’s interview to contradict the prosecution claim that the absence of blood on Long’s clothing meant she changed clothes after killing Conde.

Moreover, records had been uncovered showing that a week before Conde was killed, he sought a temporary restraining order against Lovejoy, as well as court orders relating to custody and visitation with their son. In the application, Conde wrote that Lovejoy “called and said that my girlfriend [Long] is going to get it and for me to watch my back.” The request for a temporary restraining order had been denied, but a hearing had been set for October 20. On the same day that Conde sought the restraining order, Lovejoy filed a paternity suit against Conde. Lovejoy also filed a competing child custody application.

On June 10, 2016, Judge Magers, following a hearing during which Bonnell and Hua testified, granted the habeas petition. The judge ruled that Keen had provided an inadequate legal defense by failing to consult and present testimony from a time of death expert and also by failing to present evidence supporting Long’s testimony that she did not change clothes.

Long was released on bond pending a retrial after spending more than seven years in prison. The prosecution appealed and in 2018, the Fourth District California Court of Appeal reversed Magers’s ruling and reinstated Long’s conviction.

Long remained free on bond while CIP appealed that ruling to the California Supreme Court. In November 2020, the Supreme Court vacated Long’s conviction. The court noted that Keen testified during the evidentiary hearing that he had consulted an accident reconstruction expert with no medical degree or experience in pathology to try to establish that Long was not physically capable of causing Conde’s injuries.

The court noted that there were two people—Bugarski and Lovejoy—"with a potential motive to kill the victim, and their alibis were not firm. In addition, the front door was unlocked, the kitchen slider was open, and items were missing from the home. It was a bloody crime scene with a 360-degree blood splatter pattern. Yet there was no evidence that the sink or shower had been used to clean up. A search of the home, the car, and the neighborhood, including storm drains, uncovered no weapon, no bloody clothes and no other evidence.”

The court said, “The prosecution’s own evidence showed Long was over two miles away between 11 p.m. and 1:20 a.m. Defense counsel did not present available evidence from which the jury could have concluded that the victim could have died much earlier, when Long was nowhere near the crime scene.”

“It’s with mixed emotions that we celebrate this tremendous win,” said Alissa Bjerkhoel, CIP Litigation Coordinator. “On the one hand, Kim Long has been vindicated once again and by the highest court of our state. On the other hand, it has been nearly a two decade battle to get to this point. I am so proud of our justice system for correcting this wrong and I am even more proud of Kim, the strongest woman I know, who has had to endure this nightmare for far too long.”

The court remanded the case to Riverside County Superior Court for a possible retrial. On April 22, 2021, the prosecution dismissed the charge.

Riverside District Attorney Mike Hestrin said in a news release: “Our office carefully looked at and considered all aspects of the case and determined, in part due to the lengthy passage of time since the murder and the deaths of key witnesses, that we can no longer prove the case beyond a reasonable doubt to a jury.”

“I’m so happy I can now put this case behind me and move on with my life,” Long said in a statement. “It’s been hanging over my head for so long, but now I am just looking to the future.”

– Maurice Possley

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Posting Date: 12/1/2021
Last Updated: 12/1/2021
State:California
County:Riverside
Most Serious Crime:Murder
Additional Convictions:
Reported Crime Date:2003
Convicted:2005
Exonerated:2021
Sentence:15 to life
Race/Ethnicity:White
Sex:Female
Age at the date of reported crime:27
Contributing Factors:Inadequate Legal Defense
Did DNA evidence contribute to the exoneration?:Yes*