TAMPA — A former Tampa Bay Storm linebacker accused of driving drunk and killing a bicyclist is standing trial again this week, thanks to a bloody picture that an appeals court said jurors shouldn't have seen.
According to prosecutors, Darion Conner, 41, was seen swerving erratically on Linebaugh Avenue on Sept. 4, 2004, before his sport utility vehicle hit Carrollwood resident Jonathan Michael Conklin about 1:50 a.m. Conklin, 32, flew 212 feet through the air and died at the scene.
Conner's blood-alcohol level after the crash was 0.27, more than three times the level at which the state presumes impairment.
In 2005, a jury found Conner guilty of DUI-manslaughter, and a judge sentenced him to the maximum, 15 years in prison. The conviction was his fifth for driving under the influence, his attorney said at the time.
But last year, the 2nd District Court of Appeal tossed the conviction and ordered a new trial. Conner, who had spent three years in prison, was released. The appeals decision hinged on one of the many accident scene photos a prosecutor showed jurors. In it, Conklin's body was sprawled face-down in a pool of blood. The prosecutor said it was necessary evidence to show that the impact between Conner's SUV and Conklin's bike occurred in the bicycle lane, not the traffic lane as the defense contended.
Conner's attorney said the photo captured the final resting place for the body, not the point of impact. His defense argued during trial and on appeal that showing it to jurors only inflamed their emotions.
The appeals court ruled that the state did not establish the relevancy of the photo.
On Wednesday, as attorneys picked a new jury and made new opening statements, the disputed photo of Conklin's body sat buried in a box of evidence. Assistant State Attorney Matthew Smith, who did not handle the first trial, said he had marked it with a "Do Not Show" sign to make sure it would not reappear this time.
Also missing from the courtroom was Conklin's mother, who at Conner's sentencing had repeatedly called him a "disgrace." Smith said she was notified about the retrial.
Otherwise, the proceedings had a familiar ring. Prosecutors talked about how Conner was incoherent after the crash, how he smelled of alcohol and slurred his speech. They promised to again show the 20-minute videotape of Conner struggling through tests aimed at determining if he was intoxicated.
Defense attorney Brooke Elvington suggested the investigation was flawed, with speed miscalculations, an inexperienced investigator and evidence that wasn't gathered. She talked about how dark it was on that road and how Conklin had been drinking, too, raising the question of whether he had swerved into Conner's path. None of the three eyewitnesses saw the actual impact, she said.
Colleen Jenkins can be reached at email@example.com or (813) 226-3337.