My name is Sean O’Brien. In 2004, at 16 years old, I was wrongfully convicted and sentenced as an adult to Life Without the Possibility of Parole.
I was arrested on charges of First Degree Felony-Murder in El Dorado County, California. Besides the alleged ‘confessions’ of two young men who were guilty of the crime and a handful of their friends, the police had nothing to base their suspicion on. To this day they have even less. There is no factual evidence to substantiate any of their claims. There is not one shred of physical evidence tying me to the crime.
Yet the prosecutor filed charges directly against me into adult court; this is no longer legal under Proposition 57. At my trial the prosecution completely changed their theory of the crime on the second day, rendering my prepared defense irrelevant. During my trial I was inadequately defended by a lawyer who has since written a 19-page declaration outlining his inability to defend me. I was wrongfully convicted of a crime I did not participate in nor had any knowledge of.
The police, investigators, and prosecuting attorneys have acted with complete disregard for the truth. So far, they have systematically manipulated the legal system to ignore every claim we raise in my defense. They have been allowed to do this by judge after judge who has done the same, despite the substantial amount of evidence proving my factual innocence.
In 2015, things finally began to change. The Ninth Circuit Court of Appeals granted me an Evidentiary Hearing on my claim of ineffective assistance of counsel. In January 2017 my Evidentiary Hearing was held in Federal District Court in Sacramento, CA. We proved everything the Ninth Circuit based their ruling on and now as of September 2018, we are still waiting for the Magistrate’s ruling.
Below I will give a summary outline of the allegations against me, what allowed them to be made, and my innocence.
Leading up to the Accusations
The murder of Kyle Smelser occurred on February 26, 2003. Afterward, one of the victim’s neighbors told police they had seen a green truck and a white car on the day of the murder. A man by the name of Royce Clayton, who knew Kyle Smelser’s roommates and also knew me from working at the Big-O Tires across the parking lot from my mom’s Auto Repair Shop, randomly told police, “Sean O’Brien’s mom drives a green Suburban-type vehicle.” (It should be noted that my mom’s green Chevy Tahoe was at her business the entire day on February 26, 2003 and the green truck and white car lead was never investigated further) Based on Clayton’s statements the police began telling people that they were looking for Sean O’Brien. In the small town of Placerville, this spread like wildfire.
The police quickly learned that I had been sent to boarding school in Oregon for my marijuana use. I was sent to the Bridge Academy in Oregon on February 28, 2003; coincidentally two days after the murder of which I was completely unaware. The following day, March 1, the police came to Oregon and interviewed me without reading me my rights, obtaining parental consent (I was 16), or providing me any legal protections. After I freely spoke with police answering all their questions, they left.
Back in Placerville no one besides the police and my mom knew where I was, making it appear as if I had disappeared just days after the murder. People were still hearing rumors that the police wanted to talk to me. This allowed two older boys who did not know me to begin accusing me of the burglary that led to the murder of Smelser.
In 2003 William Wellman was 20 years old and Tyler Dickson was 17. Both confessed to participation in the burglary while attempting to place all the blame for their crimes on me. Dickson even asked the detectives if he could go back to work after confessing- neither of them realized that California’s Felony-Murder Rule made them automatically guilty of the murder.
Wellman, who was potentially looking at the Death Penalty, took a plea deal that reduced his charges to 2nd Degree Murder with a Sentence of 15 years to life as long as he testified against me. He has since been paroled. Dickson went to trial and was found guilty of 1st Degree Murder and sentenced to 26 years to life.
Alleged Crime and Trial
The details of Wellman and Dickson’s stories of how the crime occurred vary greatly between the two and changed between their initial statements to police and their testimony at trial. Initially they both told police the murder occurred between 11 am and 1 pm. Then in an unrecorded interview with Wellman 10 days after the disclosure of my alibi for the hours of 11 am to 1 pm to the prosecutor, Wellman changed the times to between 9 am and 11 am. The prosecutor did not inform my lawyer of this change for 33 days, which was the second day of trial. My lawyer had only investigates my alibi for the original time frame of 11 am to 1 pm. The new time frame of 9 am to 11 am rendered my alibi for the later hours irrelevant. Even though my alibi for the original time frame was now irrelevant due to the last minute time change, my trial lawyer failed to make an objection of any kind.
Based on this change in time and the testimony of Wellman, the prosecutor argued that Wellman and Dickson came to my house on the morning of February 26, 2003. Alleging they had stayed there for 10 to 30 minutes before going to the Big Horn Gun Shop. According to the store clerk, three young men arrived after the gun shop opened at 10 am and were the first customers in the door. Wellman, the only adult, purchased a box of shotgun shells. From there they went to Smelser’s house, taking between 5 to 10 minutes to commit the crime.
According to Wellman, upon arriving at the victim’s house they saw a truck parked in the driveway. There is no explanation of why this didn’t cause them to leave immediately. Wellman claims that I went to the front door and knocked but no one answered, He then says I returned to the truck to retrieve the shotgun. Wellman claims that he and Dickson followed me into the house at which point Smelser came out of a back room. Wellman states that he and Dickson ran outside and heard a single shot being fired. He claims I came outside and they both followed me back inside to take marijuana and money from one of the bedrooms before leaving. Wellman states that after the crime I threw the victim’s gun into a pond before they returned to my house, staying 30-40 minutes.
Neither Wellman or Dickson could tell the detectives where my house was or how they drove from my house to the crime scene and back, something they should have been able to do if they had ever been to my house and their testimony had been true. The detectives then drove four different routes from my house to the crime scene and back taking 36, 39, 41, and 47 minutes.
To dispute my defense the prosecutor presented the majority of my alibi evidence including numerous phone calls and phone records for calls to and from my house at 10:11, 10:30, 11:25, 11:28, 11:31, 11:32, 11:44, and 11:47 am. Each individual testifying to these phone calls said they had spoken with me during the call. The prosecutor also produced witnesses who testified they were at my house from 11:45 to 12:00 pm on into the afternoon. The prosecutor proved I was home until at least 10:30 am. Then the prosecutor proved I was home after 11:30 am (the original time frame of 11:00 am-1 pm) The prosecutor credited my testimony for a phone call I made at 10:45 am. Then he argued to the jury that there was a time gap in my alibi of 45 minutes from 10:45 to 11:30 am and that the crime could have taken place in as little as 36 minutes.
The prosecutor presented no physical evidence of any kind; his entire case against me was built on the testimony of Wellman and Dickson and three of their friends who I also knew.
- Chantel Michaud was close to Dickson. She falsely testified that I had told her I planned to go steal some money, marijuana, and dirt bikes, she also testified to the 10:30 am phone call establishing that I was home at 10:30 am. (I cannot be at home and at the Gun Shop)
- J.D. Petty falsely testified that he loaned me a shotgun to go skeet shooting the morning of the murder. He testified that he dropped the shotgun off at my house on his way to school and attempted to corroborate this story with a 7:55 am phone call to my house. Petty’s High School Administrator testified that Petty was present in school at 7:55 am the morning of the murder. (The California 3rd District off Appeals recognized this conflicting as Petty cannot be two places at once, however the court did nothing to resolve the conflict.) Petty also testified that he picked the shotgun up from my house after school; however his work schedule and conflicting testimony from those who were at my house that day impeached his testimony and proved it was a lie.
- Cliff Sargeant falsely testified that I told him I committed the murder. Then he admitted what he was testifying to was not spoken to him by me, but rather rumors he had heard.
Ultimately I was found guilty of First-Degree Felony Murder during the commission of a burglary and possession of a firearm. At 16 years old I was wrongfully convicted and sentenced to Life Without the Possibility of Parole. I am still waiting for my rightful freedom.
For more than 15 years I have been fighting to prove my innocence. My initial appeal was denied by the California 3rd District Court of Appeals, stating that the evidence against me was “overwhelming”. This supposedly overwhelming evidence consisted of the testimony of two co-defendants who accused me of their crime. A boy by the name of JD Petty claimed to have loaned me a shotgun the morning of the crime at 7:55 Am but his school records prove he was in school at that time and his work records proved he was at work when he claimed he came to pick up the gun. A girl by the name of Chantell Michaud established I was home at 10:30 am. This is 30 minutes after the prosecution’s evidence places Wellman and Dickson at Big Horn Gun Shop purchasing ammunition. And Cliff Sargeant, who admitted his testimony about my alleged involvement was not told to him by me, but was rumors he had heard. There is absolutely no physical evidence of any kind against me and the testimony holds no credibility.
My Habeas Corpus petition finally reached the Ninth Circuit Court of Appeals after no lower court would even consider hearing my case due to the “overwhelming evidence” ruling. In 2015 the Ninth Circuit reversed the lower courts ruling and ordered an Evidentiary Hearing on the basis of Ineffective Assistance of Counsel for evidence my trial lawyer failed to use. The Ninth Circuit’s ruling stated in part, “O’Brien’s state Habeas petition alleged facts that if accepted as true, showed that trial counsel failed to introduce available evidence that would have significantly strengthened O’Brien’s defense. Indeed, if believed, the additional evidence would have rendered it virtually impossible for O’Brien to have committed the murder with which he was charged, given the location of the murder and the state’s theory as to when it took place.” Based on this ruling I thought my rightful freedom was coming soon.
The Evidentiary Hearing was finally held in January 2017. During the Evidentiary Hearing we proved the existence of all the evidence that proves my innocence. My lawyers proved my trial lawyer had failed to use any of this available evidence and my trial lawyer admitted that he did not even know the law on two key issues that severely prejudiced me. They also proved William Wellman committed perjury on the most central issue of trial; how and why he changed the times of when the crime was committed.
William Wellman’s Perjury
For an entire year after the crime, Wellman said the murder occurred in the early afternoon or between 11 am and 1 pm. My trial lawyer only investigated my alibi for this time period. Ten days after my alibi for 11 am to 1 pm was turned over to the prosecution, on January 2, 2004; the prosecutor Joe Alexander, lead detective Tom Hoagland, Wellman’s Public Defender Mark Ralphs, and Wellman had an unrecorded interview during which Wellman changed the time of the crime to between 9 am and 11 am.
This information was not disclosed to my trial lawyer for 33 days. On February 4, 2004, the second day of trial, the prosecutor Joe Alexander disclosed a four-page police report written by Detective Tom Hoagland to my trial lawyer that has become known as the Hoagland Report. It is the only police report to contain the time change. The Hoagland Report also contains highly favorable evidence to my defense that my trial lawyer failed to use in any way. My trial lawyer, James Clark, did not object, ask for a continuance, or change my prepared defense in any way. During the trial Wellman testified that he changed the times because he “had time to think about it and remembered better a year later.” My trial lawyer never challenged this as he should have.
At my Evidentiary Hearing the truth finally came out. Wellman admitted he did not change the times because he remembered better. He testified that he had changed the times during the January 2004 meeting because his public defender told him there was a “discrepancy” with his original times. He admitted that before his lawyer told him there was a “discrepancy” he never thought about the times. This is serious and proves Wellman committed perjury. Had Wellman never changed the times as a result of his Public Defender Mark Ralphs telling him there was a “discrepancy”, my innocence would have been proven at trial.
The evidence we have been trying to get the judicial system to look at for years, the evidence which the Ninth Circuit Court said would make it virtually impossible for me to be involved was also proven at my Evidentiary Hearing.
My alibi that was established by the prosecutor is corroborated by phone calls and phone bills for multiple phone calls made to and from my house and the prosecutor at trial argued the crime was committed in a “45 minute gap” between two of these phone calls. Based on other information in the Hoagland Report, during my Evidentiary Hearing, Wellman testified that he never saw me have or use a phone to make any calls. This proves he was not with me and I was not with him when I made all the phone cal;ls proven by the prosecutor. Also from the Hoagland Report, Wellman testified that he still did not remember the exact route driven to commit the crime, but he did remember driving past In-N-Out Burger and down Forni Road, past the Walmart. This drive route was the 47 minute drive time and the only relevant drive time as it is the only drive time that includes all the landmarks Wellman remembers passing. During the Evidentiary Hearing it was stipulated to that the 47 minute drive time was the route Wellman would have taken. This stipulation makes the shorter drive times irrelevant and the prosecutor’s claim at trial that the crime could have been committed in “as little as 36 minutes” false.
Now if we were only concerned with fitting a 47 minute drive time into a “45 minute gap” in my alibi that would be arguably possible. But remember, Wellman claimed to be at my house for 10-30 minutes before the crime and 20-40 minutes after the crime; during which he testified that I never used the phone once. While the prosecutor proved I was home on the phone at 10:11, 10:30, 11:25, 11:28, 11:31, 11:32, 11:44, and 11:47 am and that several people were at my house from between 11:45-12:00 pm on into the afternoon. The prosecutor also credited my testimony for an additional 10:45 am phone call.
If Wellman claims he was at my house for a combined 30 to 70 minutes it could not be during any of these phone calls since he testified he never saw me on the phone. That means for Wellman’s accusations to be true, the gap in my alibi would have to be big enough to fit the 47 minute drive time and the 30-70 minutes Wellman claimed to be at my house which combines for a total time of 77-117 minutes. There is no arguable way to fit 77-117 minutes into a “45 minute gap“.
Further, there is no “45 minute gap”. During the Evidentiary Hearing, my lawyers proved that Clark, my trial lawyer, knew of two additional phone calls that he failed to investigate and prove at my trial. One call I made to my mom’s Auto Repair shop at 10:47 am and spoke to Ned Winslow. Because this call was before the original 11:00 am-1:00pm time frame my trial lawyer felt it was not relevant. Even after the prosecution changed the times for the crime to two hours earlier, my trial layer never investigated this phone call.
We also proved my trial lawyer failed to use readily available evidence of a phone call at 11:14 am with Michael Carrick that he had told the jury he would prove. At trial, Carrick took the 5th because of other charges he was facing and the prosecutor refused to allow him to testify by not granting immunity- these charges were never brought against Carrick after he took the 5th and did not testify.
In police interviews, Carrick originally told the detectives that I called him around 11:15 or 11:30 am. His cell phone bill shows an incoming call at 11:14 am. I testified at trial that I had called Carrick and that he had called me back at 11:14 am. My trial lawyer did nothing to corroborate my testimony.
At my Evidentiary Hearing the Attorney General tried to challenge my testimony because I testified Carrick called me at 11:14 am when his cell phone bill shows an “incoming call” to Carrick. This was straightened out by looking at the entirety of Carrick’s cell phone bill and my testimony. I testified that I called Carrick first and that he called me back; I was mistaken that he called back at 11:14 am. Carrick’s cell phone bill shows only one incoming call during the relevant time period at 11:14 am and him calling me back at home at 11:44 am. I called Carrick and he called me back. My trial lawyer should have used Carrick’s phone records to correct my testimony at trial, but more importantly, to corroborate my testimony at trial. The prosecutor knew of the existence of these phone calls and abuse his power to keep this evidence out of trial.
The evidence of the phone calls with Carrick also concerns the two issues of the law my trial lawyer did not know. First, when Carrick took the 5th, my trial lawyer thought Carrick could simply take a blanket 5th (meaning Carrick could simply say I do not want to answer any question).When legally Carrick has to submit to what’s called a particularized inquiry to each question and the judge has to agree that for Carrick to answer would be incriminating. Second, even if Carrick absolutely refused to testify, the evidence code allows his previous statements to police to be introduced as Carrick would be an “unavailable witness” due to no fault of my own. Further, his cell phone records are legal business records that were stipulated to. My trial lawyer failed to corroborate my testimony that I called Carrick and he called me back when he had plenty of available evidence to do so.
Looking at the prosecution’s case, their own evidence proves my innocence. Through Chantell Michaud the prosecutor established I was home until at least 10:30 am. This is highly relevant, as Wellman, Dickson, and an unknown 3rd person were the first customers into the Big Horn Gun Shop at 10:00 am on the day of the crime. I was not with them. I was never with them, I was at home on the phone.
The prosecutor proved I made 8 phone calls in one hour and 36 minutes from 10:11 am to 11:47 am before several people arrived at my house between 11:45 am and 12:00 pm. The Hoagland Report and Wellman’s testimony at the Evidentiary Hearing proves he was not with me during any of these phone calls, and thus I was not with him.
Wellman’s testimony about how long he claimed to be at my house (a combined 30-70 minutes), the specific landmarks he claimed to pass on the drive to and from the crime scene, and the detective taking 47 minutes to drive this routes (which was stipulated to at the Evidentiary Hearing) mean the crime would take a total of 77 to 117 minutes (or 1 hour and 17 minutes to 1 hour and 57 minutes) to commit if Wellman’s story is to be believed. However, the prosecutor himself argued there is only a “45 minute gap” in my alibi. My alibi that the prosecutor himself proved at my trial. There is no possible way to fit 1 hour and 17 minutes to 1 hour and 57 minutes into a “45 minute gap“. A “45 minutes gap” that does not even exist.
When you add in the additional phone calls at 10:49 am and 11:14 am, it is absolutely impossible for me to be involved because these two phone calls shrink any “gap” in my alibi to 25 minutes. The prosecutor and police detectives knew of the 11:14 am phone call to Carrick from their original interviews with him long before I ever testified that I had called Carrick and he had called me back.
I am completely innocent of the murder of Kyle Smelser. A great injustice as been done to both of us. His true killer has never been brought to justice. I have lost half my life as a result of being wrongfully convicted for a crime I had no involvement with.
How can you help? Find us on Facebook, Twitter @EmeliaO’Brien12 & Instagram.
Feel free to leave a comment, share and like this page.