State v. Swain

• Decision Date: 01 March 2005
• Docket Number: No. 04-KA-1001.,04-KA-1001.
• Citation: 900 So.2d 82
• Parties: STATE of Louisiana v. Alfred SWAIN.
• Court: Court of Appeal of Louisiana — District of US

900 So.2d 82

STATE of Louisiana v. Alfred SWAIN.

No. 04-KA-1001.

Court of Appeal of Louisiana, Fifth Circuit.

March 1, 2005.

Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Shannon H. Huber, Cameron Mary, James Adair, Assistant District Attorneys, Gretna, LA, for State.

Bruce G. Whittaker, New Orleans, LA, for Defendant/Appellant.

Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA, and WALTER J. ROTHSCHILD.

WALTER J. ROTHSCHILD, Judge.

On August 29, 2002, the Jefferson Parish Grand Jury issued an indictment charging defendant, Alfred Swain, with second degree murder, LSA-R.S. 14:30.1. Defendant was arraigned on August 30, 2002, and pled not guilty.

Defendant filed several pretrial motions, including motions to suppress the evidence and the confession. The trial court heard and denied both of those motions on August 21, 2003.

Defendant was tried by a twelve-member jury on November 4 and 5, 2003. The jury returned a verdict of guilty as charged. Defendant filed a Motion for New Trial and a Motion for Judgment of Acquittal Not Withstanding the Verdict. The trial court denied both motions on December 1, 2003. Defendant waived statutory delays, and the court sentenced defendant that day to a mandatory term of life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence.

Defendant filed a timely Motion for Appeal on December 1, 2003. The court granted the motion on the same day.

FACTS

Lutricia Lindsey testified that the murder victim, Toni Joseph Swain, was her daughter. Toni was married to defendant, Alfred Swain. She was thirty-one years old when she died on June 29, 2002. Ms. Lindsey testified that Toni and her other three daughters gave her a surprise birthday party at her (Ms. Lindsey's) home that day. Toni was shot and killed outside the home of Ms. Lindsey's neighbor, Leroy Brown. Ms. Lindsey did not witness the shooting, as she was inside her house when it occurred.

Felicia Walker, Toni's sister, testified that her mother, Ms. Lindsey, lives at 2056 Lincolnshire Drive in Marrero. After her mother's party ended, Ms. Walker sat in a chair in front of the house. Toni was talking to Leroy Brown in front of his house next door. Ms. Walker testified that she heard a "pop, pop" sound. There was a pause, and then another "pop, pop." Ms. Walker saw smoke, and smelled something burning. She grabbed her daughter and lay on the ground. When the popping sound stopped, she turned toward Brown's house and saw defendant calmly walking to his truck, which was parked in the middle of the street. Toni was lying in Brown's driveway. Ms. Walker ran inside her mother's house and told her, "Alfred just shot Toni, call 911."

Leroy Brown testified that, at the time of the murder, he lived at 2052 Lincolnshire Drive. On June 29, 2002, he was standing outside his house talking to Toni, whom he had known from the time she was ten or eleven years old. Twenty to thirty minutes into their conversation, defendant arrived in a burgundy colored Chevrolet truck. Toni said to defendant, "[W]hat do you want? Leave me alone." Defendant got out of the truck and walked toward Toni. Defendant said, "Bitch, didn't I tell you I was going to get you." Defendant "came up with" a gun and fired a shot into Toni's side. Defendant then said, "[N]ow I'm going to kill you." Defendant then stood over her and fired additional shots at her. After defendant shot Toni, he got back into his truck and left the scene. The couple's five year old daughter witnessed the shooting.

Dr. Susan Garcia, an expert in forensic pathology, testified that she performed an autopsy on the victim's body. She testified that the victim sustained three recognizable gunshot wounds to the body, and one graze wound to the neck. One bullet entered the right front part of the body beneath the right breast. The bullet traveled through the body, exiting the right side of the back. That bullet did not injure any vital structures, and was not a lethal wound.

A second bullet entered the victim's right chest injuring a lung. Dr. Garcia recovered the bullet from the left back side of the body. The doctor testified that the injury could have been lethal, depending on how much blood the victim lost, and whether or not medical care was administered.

A third bullet entered the victim's left cheek. A projectile was recovered from that area. The bullet injured, but did not penetrate, the brain. That wound could have been lethal, in that the projectile could have caused a concussion or contusion to the brain. Dr. Garcia identified State's Exhibits 44 and 45 as the projectiles recovered during the autopsy.

Sergeant Ralph Parker of the Jefferson Parish Sheriff's Office testified that at 11:45 p.m. on June 29, 2002, he was standing in front of the Detective Bureau. Defendant arrived in a maroon colored truck. Defendant introduced himself to Parker, and calmly informed the officer he wished to turn himself in for the Lincolnshire murder. Parker testified that he already knew about the murder. Parker handcuffed defendant and advised him of his Miranda¹ rights. He then sent for homicide detectives.

Parker testified that there were two female passengers in the truck. Two other officers who were outside asked the women to get out of the vehicle. The officers saw a gun inside the truck. Parker told them not to seize the weapon at that point.

Lieutenant Gray Thurman,² a homicide detective, testified that he and Detective Meunier arrived at 2052 Lincolnshire Drive within an hour of the shooting. Thurman learned the victim had been taken to a hospital. He assigned Detective Donald Meunier as the case officer, and the two detectives processed the crime scene. In the driveway of the residence, they located four shell casings, two bullet fragments, a pair of eyeglasses, and a large blood stain. Afterwards, they went to the Detective Bureau to interview witnesses. Defendant arrived there and surrendered. They testified that he escorted defendant, handcuffed, from the front of the building to an interview room.

Thurman advised defendant of his Miranda rights, using a sheriff's office rights form. Defendant signed the form, indicating he understood his rights, and wished to waive them. Thurman testified that he and Meunier interviewed defendant. The interview was recorded on audiotape, and a transcript of the tape was admitted in evidence.

Defendant told the detectives that he had recently filed for a divorce from Toni. He had learned she was seeing another man. Defendant was aware that the victim had obtained a restraining order that prohibited him from going near her. Defendant felt it had prevented him from seeing his six-year-old daughter, Asia, who was living with Toni.

Defendant admitted to having shot and killed Toni, but said he did not know why he had done it. Defendant said he fired four shots; two into the victim's upper body, one to the neck, and another to the head. Toni was still moving after the first two shots, but she stopped moving when the third shot struck her in the neck. After the shooting, he went to his mother's house. Defendant told the officers that the gun he used to shoot Toni was .9mm handgun, and that it was on the floorboard of his truck. He had removed the clip.

Detective Thurman testified that defendant's manner during the interview was matter-of-fact, deliberate, and articulate, as if he were describing an event in which he had not participated. Defendant expressed remorse for his daughter, who had witnessed the shooting, but he did not express remorse for killing the victim.

Detective Meunier testified that when he and Thurman took defendant into the Detective Bureau, he instructed other officers to secure the truck until it could be moved. When the interview was completed, Meunier applied for and obtained a search warrant for defendant's truck. The warrant was executed on July 1, 2002. Officers seized a Taurus .9mm semi-automatic handgun (State's Exhibit 42) with nine.9mm rounds (State's Exhibit 58) and five.38 caliber rounds (State's Exhibit 59). Timothy Scanlan of the Sheriff's Office Crime Lab, was accepted by the court as an expert in firearms examination. He testified that he test-fired State's Exhibit 42, the handgun. He determined that four bullet casings recovered from the scene were fired from that weapon. He also found that State's Exhibits 44 and 45, the two bullets recovered from the body, were fired from that gun. Scanlan testified that there were two specimens that were so damaged as to make a comparison impossible.

Defendant's mother, Catherine Sterling, testified for the defense. She stated that defendant went to her house after the shooting. He told her he had had an "incident" with his wife. She testified that defendant contemplated killing himself, but that he eventually decided to turn himself in to police.

Defendant testified on his own behalf. He stated that he and the victim had been married for eight years. There had been problems in their marriage. In August, 2000, he discovered a used condom in a wastebasket in their home. He confronted the victim about it, and learned that she had been having an affair with another man. The couple separated. They reconciled briefly in late 2001, and then separated again. They reconciled again in early 2002. Toni continued to be unfaithful.

Defendant testified that, on the day of the shooting, he worked until 3:00 p.m. at his job in furniture repair at Compass Furniture. On his way home, he stopped at another furniture store and bought two appliances. He arrived at his apartment at around 4:00. He and the victim were separated at that time, and he packed some boxes to prepare for his move to a new residence.

Defendant testified that he thought about his family, and decided to drive to where his wife and children were living. He saw they were not at home, so he went to Ms. Lindsey's...