State v. Swallow

• Decision Date: 22 April 1987
• Docket Number: No. 15285,15285
• Citation: 405 N.W.2d 29
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Edwin Charles SWALLOW, a/k/a Woodrow John Swallow, Jr., Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 29

405 N.W.2d 29

STATE of South Dakota, Plaintiff and Appellee, v. Edwin Charles SWALLOW, a/k/a Woodrow John Swallow, Jr. Defendant and Appellant.

No. 15285

Supreme Court of South Dakota.

Argued Jan. 13, 1987.

Decided April 22, 1987.

Craig M. Eichstadt, Asst. Atty. Gen., Mark V. Meierhenry, on brief, Atty. Gen., Pierre, for plaintiff and appellee.

Robert Van Norman, Rapid City, for defendant and appellant.

MORGAN, Justice.

Defendant Edwin Charles Swallow (Swallow) appeals from January 30, 1986, convictions of first-degree murder and the subsequent sentences imposed. We affirm on all issues.

Around midnight on April 8, 1982, Conrad Wilson (Conrad) and his daughter Cynthia Wilson (Cynthia) were shot and killed at their Rapid City, South Dakota, home. Walter Weddell (Weddell), pleaded guilty to first-degree manslaughter in connection with the death of Conrad and was sentenced to sixty-five years in prison. Swallow was brought to trial on January 6, 1986. The jury convicted him of two counts of first-degree murder on January 30, 1986, and he was sentenced to life in prison without parole for the murder of Cynthia and life in prison for the murder of Conrad. These sentences are to be served consecutively, beginning after the expiration of the forty-five-year sentence Swallow was currently serving in Texas.

On the night of April 8, 1982, residents in the 800 block of Fourth Street in Rapid City telephoned the police to report a violent episode which had just occurred in their neighborhood. One neighbor reported a car driving rapidly from the scene; another heard gun shots; a third saw someone moving around the house; and, a fourth saw a taller person walking to the street and heard that person remark: "I think I got 'em." Upon arrival, officers found Conrad, barely alive, on the front porch and Cynthia, dead of a single shotgun blast, just inside the front door. The rear door of the house had been forced open and there was physical evidence that the shotgun blast came from inside the house. Conrad had been an illicit drug dealer for approximately five years, but Cynthia was not involved in these activities.

During the course of the gunfight, a companion of Weddell and Swallow, Michelle Richards (Richards), was shot and wounded in the arm. Richards was taken to the house of Linda Brewer (Brewer) who testified at the preliminary hearing that Richards, Swallow and Weddell came to her house around 12:30 a.m. on April 9, 1982. According to Brewer, Richards and Weddell talked about a shootout and wanted to return to the scene of the crime for Richards' gun, a .22 caliber revolver. A .22 caliber revolver was recovered by police at the scene of the crime. Brewer was unavailable for testimony at trial and her prior sworn testimony was presented to the jury. Val Freeman (Freeman), a guest at Brewer's house, also testified that Swallow, Richards, and Weddell were present at Brewer's house. She also testified that Weddell said that he had "got 'em." Freeman further reported that Swallow appeared to be more nervous than the other two and that he was carrying a shotgun.

Weddell and Richards were both present at trial but refused to testify on the grounds that their testimony might tend to incriminate them. Earlier sworn statements given by both Weddell and Richards were received in evidence. Weddell claimed he went to Conrad's house to straighten out an earlier drug deal. He stated that Swallow was in the car when he left and when he returned. Weddell's version of the killings was that he was standing on the porch speaking with Conrad about the drug deal and that Conrad began firing when Richards approached the porch. Richards was struck by Conrad's initial shot, after which Weddell began returning fire. Weddell stated that he returned fire while assisting Richards back to the car.

Richards, in her sworn statement, claimed that Weddell asked her to drive him to Conrad's house so that he could pick up some money that Conrad owed him. Richards claimed she had no knowledge of the past drug sale. Richards stated that Weddell approached the house and began arguing with Conrad, whereupon she approached the house in an attempt to get Weddell to leave. Richards stated that Conrad then pulled a gun and fired, striking her in the arm. After being shot, Richards remembers little other than her feelings of faintness and nausea. She claimed that Swallow was at the car when she left, but could not say if he was at the car when she returned. Richards also denied seeing any other weapons other than Conrad's.

After the shooting Swallow fled to Seattle, Washington, where he met Dennis Nelson (Nelson) and Patrick Donahue (Donahue). Swallow later made incriminating statements to both Nelson and Donahue which were used against him at trial.

On February 11, 1982, fifty-one days prior to the murders, an armed robbery occurred at Conrad's house. The robbery was committed by either two or three Indian males. Conrad and Cynthia described the robbers to several people including family members but did not report the incident to the police. The hearsay statements of Conrad and Cynthia, according to the various witnesses, related the robbers as being Indian males, one larger and one smaller. The larger person brandished a shotgun while the smaller one carried a handgun. Conrad and Cynthia told the various witnesses that the robbers had discussed killing them, but decided to lock them in the basement instead.

On appeal, Swallow raises eleven issues which we will discuss in the order in which he presents them. For purposes of this appeal, we granted additional pages for briefing in excess of our statutory limit. While this is a measure rarely taken, we believe it was necessary in this case. We commend the attorneys on their prudent use of the additional space and on the exceptional quality of the briefs.

Swallow's initial complaint of error centers around the admission of evidence concerning the February 11, 1982, robbery. The admission of the prior robbery evidence involves two distinct questions, one dealing with admission of hearsay and one dealing with admission of bad acts evidence. Although there are many exceptions, hearsay is generally inadmissible as evidence. SDCL 19-16-4. The statements of Conrad and Cynthia to Annette Roeder-Hunt (Roeder-Hunt) and some family members were hearsay. The trial court cited two exceptions to the hearsay rule, SDCL 19-16-28 (Rule 803(24)), one of the so-called residual exceptions, and SDCL 19-16-6 (Rule 803(2)), the excited utterance exception, and admitted the statements. Initially, we note that since Cynthia and Conrad were unavailable at the time of the trial, the trial court erroneously relied on SDCL 19-16-28 (Rule 803(24)), which applies to hearsay statements where the declarant is available, rather than SDCL 19-16-35 (Rule 804(b)(6)), which is applicable to hearsay where declarant is unavailable. We deem this erroneous citation to be of little consequence since the text of the rules is nearly identical and we have said that SDCL 19-16-28 requires that a higher level of reliability be established where the declarant is available than were he unavailable. State v. O'Brien, 318 N.W.2d 108 (S.D.1982).

We believe that, to some extent, the trial court erroneously applied the excited utterance exception to the hearsay evidence in this case. Roeder-Hunt came on the scene just minutes after the robbery and the statements of Conrad and Cynthia at that time clearly qualified as excited utterances. We do not believe, however, that statements made to family members on the next day qualified as excited utterances. We decline an exhaustive review of the admissibility of that testimony as excited utterances, however, since we believe the statements were admissible under one of the so-called residual exception. SDCL 19-16-35 (Rule 804(b)(6)).

The Federal Rules of Evidence, which were adopted nearly in their entirety by South Dakota, recognize that there may be evidence that meets admissibility requirements, but may not be governed by one of the specific exceptions embodied in the federal rules. To address this problem, SDCL 19-16-35 (Rule 804(b)(6)) was adopted.

A statement not specifically covered by any of Secs. 19-16-30 to 19-16-34, inclusive, but having equivalent circumstantial guarantees of trustworthiness, is not excluded by Sec. 19-16-4 if the declarant is unavailable as a witness and if the court determines that

(1) the statement is offered as evidence of a material fact;

(2) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and

(3) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

However, a statement may not be admitted under this section unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.

SDCL 19-16-35.

Initially, we believe that equivalent circumstantial guarantees of trustworthiness existed with the hearsay statements of Conrad and Cynthia. The statements primarily consisted of physical identifications of the robbers and their activities while they were present in the house. In State v. Luna, 378 N.W.2d 229 (S.D.1985), we noted some criteria to be considered in determining trustworthiness. Specifically, we noted circumstances such as (1) the nature of the statements, written or oral; (2) the character of the statements; (3) the declarant's relationship to the witness; (4) the declarant's motivation for making the statements; and (5) the circumstances under which the declarants made the statements. The trial judge explicitly considered these factors and admitted...