Swafford v. State, 68009

CourtUnited States State Supreme Court of Florida
Citation533 So.2d 270,13 Fla. L. Weekly 595
Docket NumberNo. 68009,68009
Parties13 Fla. L. Weekly 595 Roy Clifton SWAFFORD, Appellant, v. STATE of Florida, Appellee.
Decision Date29 September 1988

Page 270

533 So.2d 270
13 Fla. L. Weekly 595
Roy Clifton SWAFFORD, Appellant,
STATE of Florida, Appellee.
No. 68009.
Supreme Court of Florida.
Sept. 29, 1988.
Rehearing Denied Dec. 2, 1988.

Page 271

James B. Gibson, Public Defender and Daniel J. Schaffer, Asst. Public Defender, Seventh Judicial Circuit, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen. and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for appellee.


Roy Swafford appeals his convictions of first-degree murder and sexual battery and his death sentence. This Court has jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm the convictions and sentence.

The evidence showed that on the morning of Sunday, February 14, 1982, the victim was at work at the FINA gas station

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and store on the corner of U.S. Highway No. 1 and Granada Avenue in Ormond Beach, Florida. Two witnesses saw her there at 5:40 and 6:17 a.m. A third witness, who said he arrived at the station at around 6:20, found no attendant on duty although the store was open and the lights were on. At 6:27 a.m., the police were called, and an officer arrived at the station a few minutes later.

On February 15, 1982, the victim's body was found in a wooded area by a dirt road, about six miles from the FINA Station. She had been shot nine times, with two shots directly to the head. The cause of death was loss of blood from a shot to the chest. Based on trauma, lacerations, and seminal fluid in the victim's body, the medical examiner concluded that she had been sexually battered. Holes in the victim's clothing corresponding to the bullet wounds to her torso indicated that she was fully clothed when shot. The number of bullet wounds and the type of weapon used indicated that the killer had to stop and reload the gun at least once. Several bullets and fragments were recovered from the body.

Swafford and four companions drove from Nashville, Tennessee, to Daytona Beach, Florida, departing Nashville at about midnight on Friday, February 12 and arriving in Daytona Beach at about noon the next day. After setting up camp in a state park, Swafford and some others went out for the evening, arriving back at the campground at about midnight. Then, according to the testimony at trial, Swafford took the car and went out again, not to return until early Sunday morning.

State's witness Patricia Atwell, a dancer at a bar called the Shingle Shack, testified that Swafford was there with his friends on Saturday night, that they left at around midnight, and that Swafford returned alone at about 1:00 a.m. Sunday. When Atwell finished working at 3:00 a.m., she left the Shingle Shack with Swafford. They spent the rest of the night together at the home of Swafford's friend. At about 6:00 a.m., he returned her to the Shingle Shack and left, driving north on U.S. 1, a course that would have taken him by the FINA station. In the light traffic conditions of early Sunday morning, the FINA station was about four minutes away from the Shingle Shack. According to Swafford's travelling companions, he returned to the campsite around daybreak. The court took judicial notice of the fact that sunrise took place on the date in question at 7:04 a.m.

On Sunday Swafford and his friends attended an auto race in Daytona Beach. That evening they went back to the Shingle Shack, where one of the party got into a dispute with some other people over money he had paid in the expectation of receiving some drugs. Swafford displayed a gun and got the money back. The police were called, and Swafford deposited the gun in a trash can in one of the restrooms. The police seized the gun, and ballistics tests performed later conclusively established that Swafford's gun was the gun used to kill the victim. The evidence also showed that Swafford had had the gun for some time. Although the gun was not tested until more than a year after the murder, after authorities received a tip concerning Swafford's possible involvement, evidence established the chain of police custody and the identification of the gun.

The state also presented evidence that Swafford made statements from which an inference of his guilt of the crimes charged could be drawn. Ernest Johnson told of an incident that took place about two months after this murder. After meeting Swafford at an auto race track, Johnson accompanied him to his brother's house. When leaving the brother's house, Swafford suggested to Johnson that they "go get some women" or made a statement to that effect. Johnson testified as follows concerning what happened then:

Q. Okay. What happened then? What was said by the Defendant?

A. He just asked me if I wanted to go get some girl and I said yeah.

Q. And then what took place?

A. We got in--he asked me if I wanted to take my truck and I said no, so we went in his car.

Page 273

All right. We went and got a six-pack of beer and started riding. And he said, do you want to get a girl, and I said yeah, where do you want to get one, or something like that. He said, I'll get one.

So, as we was driving, I said, you know, where are you going to get her at. He said, I'll get her. He said--he said, you won't have to worry about nothing the way I'm going to get her, or he put it in that way. And he said--he said, we'll get one and we'll do anything we want to to her. And he said, you won't have to worry about it because we won't get caught.

So, I said, how are you going to do that. And he said, we'll do anything we want to and I'll shoot her.

So, he said if--you know, he said that he'd get rid of her, he'd waste her, and he said, I'll shoot her in the head.

I said, man, you're crazy. He said, no, I'll shoot her in the head twice and I'll make damn good and sure that she's, you know, she's dead. He said, there won't be no witnesses.

So, I asked him, I said, man, don't--you know, don't that bother you. And he said, it does for a while, you know, you just get used to it.

Johnson then told the jury that he and Swafford went to a department store parking lot late at night, that Swafford selected a victim, told Johnson to drive the car, directed him to a position beside the targeted victim's car, and drew a gun. Johnson at that point refused to participate further and demanded to be taken back to his truck.

The jury found Swafford guilty of first-degree murder and sexual battery and recommended a sentence of death. The trial court then sentenced Swafford to death for the first-degree murder.

The trial court admitted Johnson's testimony, under two separate theories, as similar fact evidence and as an admission of guilt. Swafford now argues that the trial court erred in admitting Johnson's testimony because it presented information about a collateral crime, wrong, or act that was not relevant to a material issue of fact, contrary to Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959), and codified in subsection 90.404(2)(a), Florida Statutes (1985). 1 To support this theory, Swafford relies on Drake v. State, 400 So.2d 1217 (Fla.1981), where this Court found the collateral events introduced by the state insufficiently similar to the facts of the crime charged to support comparison under the "mode of operating theory of proving identity." Id. at 1219. Swafford also relies on Peek v. State, 488 So.2d 52 (Fla.1986), which found that, because a sufficiently unique pattern of criminality to justify a finding of identity based on the collateral crime did not exist, evidence of the collateral crime should have been excluded as irrelevant. Drake and Peek are not controlling in this case.

The state did not present Johnson's testimony to establish that Swafford had committed a separate crime so similar in the manner of its commission to the crime charged that it pointed, with logical relevancy, to Swafford as the perpetrator of the instant homicide because the statement did not refer to a crime that had been committed. Rather, it offered the testimony primarily to inform the jury of a particular statement made by Swafford. In response to Johnson's question whether he would not be "bothered" after abducting, raping, and murdering a victim selected in a parking lot, Swafford said "you just get used to it." Swafford's statement that "you just get used to it," when viewed in the context of his having just said that they could get a girl, do anything they wanted to with her and shoot her twice in the head

Page 274

so there wouldn't be any witnesses, was evidence which tended to prove that he had committed just such a crime in Daytona Beach only two months before. An admission may be admissible if it is relevant, and relevant evidence is defined as evidence tending to prove or disprove a material fact. § 90.401, Fla.Stat. (1985). The trial judge properly permitted the jury to consider this evidence for what it was worth. 2

An admission of a party-opponent is admissible as an exception to the hearsay evidence rule. § 90.803(18), Fla.Stat. (1985). In contrast to other hearsay exceptions, admissions are admissible in evidence not because the circumstances provide special indicators of the statement's reliability, but because the out-of-court statement of the party is inconsistent with his express or implied position in the litigation. 3 McCormick on Evidence § 262 (E. Cleary ed. 1984). The admissibility of admissions of a party has been recognized by numerous Florida decisions. E.g., Hunt v. Seaboard Coast Line R.R., 327 So.2d 193 (Fla.1976); Roberts v. State, 94 Fla. 149, 113 So. 726 (1927); Parrish v. State, 90 Fla. 25, 105 So. 130 (1925); Daniels v. State, 57 Fla. 1, 48 So. 747 (1909); Dinter v. Brewer, 420 So.2d 932 (Fla. 3d DCA 1982); Darty v. State, 161 So.2d 864 (Fla. 2d DCA), cert. denied, 168 So.2d 147 (Fla.1964). 4 Of course, like all evidence, an admission must be relevant; i.e., it must have some logical bearing on an issue of material fact. In the context of a criminal...

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