State v. Swain
| Decision Date | 23 June 1978 |
| Docket Number | No. 47524.,47524. |
| Citation | 269 NW 2d 707 |
| Parties | STATE of Minnesota, Respondent, v. Richard Mark SWAIN, Appellant. |
| Court | Minnesota Supreme Court |
C. Paul Jones, Public Defender, Robert Oliphant, Asst. Public Defender, Minneapolis, for appellant.
Warren Spannaus, Atty. Gen., St. Paul, Gary Flakne, County Atty., Vernon E. Bergstrom, David W. Larson and Lee Barry, Asst, Minneapolis, for respondent.
Heard before YETKA, SCOTT and WAHL, JJ., and considered and decided by the court en banc.
Defendant was found guilty of first degree murder by a jury in Hennepin County District Court and is appealing from the judgment entered on the jury verdict. We affirm the conviction of murder but reduce the degree from first to second.1
Defendant, Richard Swain, lived in Golden Valley, Minnesota, with his mother, Betty Swain. Defendant was arrested on April 22, 1976, and charged by complaint with murder in the second degree in the death of Betty Swain. He was indicted by a Hennepin County Grand Jury on a charge of murder in the first degree on April 27, 1976. Minn.St. 609.185 provides, in part:
On Sunday, April 18, 1976, Betty Swain had Easter dinner at the home of a friend. She left home at about 11 a. m. that morning. She picked up a friend, Helen Norris, and the two did some errands. Ms. Swain and Ms. Norris arrived at the home of Dora Coleman at 4 or 4:30 p. m. The people at the Coleman home drank some alcoholic beverages, ate supper, and played bridge. Ms. Swain and Ms. Norris left at 9 or 9:15 p. m. Ms. Swain left the Norris residence at about 9:45 p. m. and was never heard from again. Ms. Swain had been driving a green Chevrolet station wagon and had been wearing her glasses that evening. She wore a gray or black blouse with a white pattern and charcoal gray slacks with a blue thread pattern.
When Ms. Swain did not appear at her job the next morning, one of her coworkers, Richard Hans, called Ms. Norris and asked if she knew Ms. Swain's whereabouts. Ms. Norris went to the Swain residence, walked around the house, and knocked on several doors, but no one answered. While on the grounds, she found a pair of glasses which she identified as those worn by Ms. Swain the previous night.
Later that day Ms. Norris returned to the Swain home and went inside with Richard Hans. They did not find anything unusual, but were unable to find the clothing that Ms. Swain had been wearing the previous evening. The two called the defendant at his place of work; the defendant stated he assumed his mother was at work. The Golden Valley Police were then called by Mr. Hans and Ms. Norris.
The police went to the defendant's home at least three times on April 19, 1976. At that time he filed a missing-persons report and stated that he did not know the make or color of his mother's car. Defendant stated that he had stayed up watching television until about 1 a. m. when he went to bed.
On Thursday, April 22, 1976, the body of Betty Swain was found in Hopkins, Minnesota, about 5.4 miles from the Swain home. The body was found in a locked green station wagon. The doctor who performed the autopsy testified that death occurred between 9:45 p. m. and midnight on April 18, 1976. He testified that Ms. Swain died as a result of brain injuries from seven blows to the back of her head. The first two blows were parallel to each other, while the next five were perpendicular to the first two and were probably delivered after the first two. Pieces of polyethylene were discovered in the head wound indicating that the weapon was covered with plastic. The clothes on Ms. Swain's body were different from those she had worn the day she was last seen.
Sometime during the day on April 22, 1976, a benzidine test was performed on the glasses found by Ms. Norris.2 They tested positive for blood. Based upon that test and the circumstances of Ms. Swain's death, the police applied for and were issued a warrant to search the Swain residence for, among other things:
"Any blood stained items to include clothing."
Pursuant to the warrant a 3-day search of the defendant's house was conducted. A benzidine test was used to detect the presence of blood in various places in and around the house. After a positive test on a driveway stain and on several other spots in the garage, defendant was arrested. Some stains on the knees of the blue jeans which defendant was wearing also gave a positive benzidine test.
During the search, virtually all parts of the house were tested by means of the benzidine test. Nine of the numerous stains which gave positive benzidine test results were ultimately found to be blood type O, the same type as Betty Swain's blood. The blood on the left knee of the defendant's jeans was found to be type O. Three of the stains were found to be type A, the same as defendant's. The other tests were inconclusive. Among the items found to be stained with type O blood were a stain under a recreation room rug,3 debris from the recreation room, and paper towels from the garage. Those containing type A blood were a couch and defendant's tennis shoe. Although it could not all be further identified, positive benzidine tests indicated blood in other areas of the basement, garage, recreation room, and upstairs in the attic entry, bedrooms, and bathrooms.
Just before the search began defendant asked a police officer who had come to secure the house if he was there to make sure defendant did not burn any rags. Defendant said that he was concerned that some hydrochloric acid in the house and a double bladed knife which he owned might be illegal and would be discovered. During the search defendant described to another officer what he called "little pranks" which he and a coworker had thought of. Defendant told the officer that perhaps he (defendant) had hit his mother on the head and dropped her from the roof. Defendant later told the officer that an ax with hair and blood would be found in the garage. He stated that it was catfish blood.4
No murder weapon was found; no identifiable fingerprints were found at the murder scene. The clothing worn by Ms. Swain on April 18, 1976, was never recovered. At trial the state attempted to connect defendant with the crime in an additional way: The state's final witness Robert Helmer, a former boarder with the Swains, testified that in the summer of 1975 he heard defendant come into his room after a fight with Ms. Swain. Defendant was in his bedroom "yelling" and "cussing" and "mad;" Ms. Swain was not present. Defendant was cutting paper with a pocket knife and was reported to have said, "I would like to kill her sometimes, get at her." This was the only threat heard by Helmer.
On October 8, 1976, a pretrial mental competency examination of the defendant was ordered.5 No express finding of competency was made by the trial court, and the issue was not raised again by defense counsel.
At the close of trial, the court denied defendant's motion to allow written instructions in the jury room. The trial court instructed the jury on first and second degree murder, but defendant's request for an instruction on first degree manslaughter and other lesser included offenses was denied. At the state's request, defense counsel was ordered not to comment on the prosecution's failure to call defendant's father as a witness.6
Defendant has raised the following issues:
1. Was the evidence sufficient to support the verdict of first degree murder?
2. Is testimony concerning an argument between a defendant and victim 10 months prior to an alleged first degree murder admissible to show defendant's state of mind?
3. Was the defendant entitled to an instruction on manslaughter in the first degree in an unwitnessed homicide?
4. Is a defendant entitled to have written instructions submitted to a jury at his request?
5. May the trial court prohibit defense counsel from commenting, in closing argument, on the prosecutor's failure to call defendant's father as a witness?
6. Where a search warrant specifically directs seizure of "bloodstained items" may the police conduct chemical tests for unseen blood residues throughout the house?
7. May the police search a house for 2 succeeding days pursuant to a single search warrant issued on one date?
8. Where a pretrial competency examination is ordered may a trial judge proceed to trial where the records reflect neither the fact of the hearing nor the outcome?
9. Was the defendant entitled to a change of venue on the basis of pretrial publicity?
(1) Sufficiency of the evidence.
In determining the sufficiency of the evidence this court must view the evidence in a light most favorable to the jury verdict and decide whether the jury could reasonably have found the defendant guilty of the crime charged. State v. Whelan, 291 Minn. 83, 189 N.W.2d 170 (1971); State v. Thompson, 273 Minn. 1, 139 N.W.2d 490 (1966), certiorari denied, 385 U.S. 817, 87 S.Ct. 39, 17 L.Ed.2d 56 (1966). Where a conviction rests entirely upon circumstantial evidence, all the circumstances proved must be consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except that of his guilt. State v. Pankratz, 238 Minn. 517, 531, 57 N.W.2d 635, 643 (1953). See, 10 Minnesota Practice, Jury Instruction Guides, CRIMJIG 3.05.
Defendant argues that the evidence was insufficient to show that he committed the act of killing his mother and that in any case it is insufficient to show premeditation and intent. He argues that the testimony about defendant's argument with his mother is too remote to be probative of his state of mind on April 18, 1976. He also argues that the circumstantial evidence was inconclusive in connecting defendant...
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