Swan v. Commonwealth
| Citation | 384 S.W.3d 77 |
| Decision Date | 20 December 2012 |
| Docket Number | Nos. 2011–SC–000085–MR, 2011–SC–000086–MR.,s. 2011–SC–000085–MR, 2011–SC–000086–MR. |
| Parties | Marcus D. SWAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee. and D'Andre Owens, Appellant, v. Commonwealth of Kentucky, Appellee. |
| Court | United States State Supreme Court (Kentucky) |
OPINION TEXT STARTS HERE
Theodore S. Shouse, Louisville, KY, Counsel for Appellant, Marcus D. Swan.
Daniel T. Goyette, Louisville Metro Public Defender, Cicely Jaracz Lambert, Assistant Appellate Defender, Office of the Louisville Metro Public Defender, Louisville, KY, Counsel for Appellant, D'Andre Owens.
Jack Conway, Attorney General, James Daryl Havey, Office of the Attorney General, Frankfort, KY, Counsel for Appellees.
The Appellants Marcus D. Swan and D'Andre Owens were tried and convicted of multiple crimes related to a violent home invasion they carried out in 2008 in which they stole money and threatened to kill the home's inhabitants, two of whom they ultimately shot and one of whom they threatened to rape and sodomize. They raise numerous issues on appeal, some in common and others independently. The Court hereby affirms Swan's judgment of conviction and sentence in its entirety, and affirms in part and reverses in part Owens's judgment, though his overall sentence is unaffected.
Brandon Lumpkins owned a two-bedroom house in Louisville. He lived there with his girlfriend, two-year-old daughter, his mother, and his six-year-old brother. According to Lumpkins, he had a reputation as a drug dealer because he had money from a lawsuit that had allowed him to buy the house, a truck, and guns. As a result, he received robbery threats. He kept six guns in the house, all loaded and in his bedroom.
On May 8, 2008, Lumpkins's sister and two friends were visiting. The sister sat for a while on the front porch with her boyfriend, who left after midnight. While outside, she saw a white car pull up with its lights off but thought nothing of it. When she came back into the house, she left the front door unlocked. Lumpkins's mother had gone to bed in the back bedroom; the others were all in the front room of the house.
A short time later, two men armed with guns entered the house. They were wearing latex gloves and had duct tape. The smaller one was Marcus Swan; the other man was D'Andre Owens. They ordered everyone into the living room. The men began yelling for money, drugs, and guns, and one fired a shot into the ceiling. One of the witnesses testified that Owens was giving the orders, but that Swan, who had a bandana over his face, said things like
Swan and Owens told Lumpkins that they knew about him, presumably referring to his reputation. Lumpkins testified that one of the men pulled out a small bag of marijuana and asked where his stash of the drug was. Lumpkins said that he had none, and Owens struck him in the head several times with a gun; Lumpkins blocked at least one of the blows with his hand, which started to bleed. Owens said that he would kill everyone in the house if Lumpkins did not give up his money. Lumpkins replied that he had no money in the house, though he had a $100 bill in his pocket, which he claimed to have turned over to the robbers. Despite this claim, no such bill was recovered from the scene or from Swan or Owens.
Lumpkins's sister called 911 on a cellular phone and unsuccessfully tried to whisper the location of the house. Having just washed her hair, she had a towel on her head, which she used to hide what she was doing. One of the friends laid over her to help muffle the sound. One of the men fired his gun into the fireplace next to the friend, temporarily deafening him. The men then moved the friend away from Lumpkins's sister.
Swan and Owens were angry that they obtained so little of value from their robbery. Owens shot Lumpkins in the left thigh. Swan shot one of Lumpkins's friends in the thigh also. Swan later shot Lumpkins in the right ankle. After this second shot, Lumpkins's sister turned over several hundred dollars she had tucked in her clothes. In the meantime, Lumpkins's girlfriend had been awakened by the shouting. She stepped out into the hallway, saw Owens with a gun, and, unnoticed, stepped back in the bedroom and hid with her daughter. Swan later came in the room and found her; Owens came in and dragged her back to the living room by her hair. He yelled profanities at her and told her that he was going to rape her. He then bent her over the arm of a sofa and pulled her panties up over the waist of her pants. Owens unzipped his pants and declared that he was going to make Lumpkins's sister perform oral sex on him. Apparently, he never carried through with this threat.
The two-year-old daughter walked into the hallway. Owens put his gun to her head and threatened to kill her. He then tapped her head with the gun and told her to get on the couch.
Lumpkins's mother, Latonia Lumpkins, was also awoken by the shouting and gunshots. She hid under the bed when Swan and Owens came in the room and searched through it. She called 911 and was able to give the address of the house.
Owens took Lumpkins's six-year-old brother through the house with a gun to his head. Ms. Lumpkins heard Owens say he would kill the boy if he did not reveal where Lumpkins kept his money. She also heard Owens tell the boy to get him a purse that was on the bed.
Over the course of the robbery and assaults, the Appellants threatened to kill everyone, including the children. Sometimes they made broad threats to just start shooting; other times, they made specific threats, such as to make the children watch as they killed the adults.
Police quickly responded to the 911 call. After arriving at the scene, they began surrounding the house and heard shots from inside. Swan and Owens, seeing the officers and their cars, again threatened to kill everyone in the house. Instead of further violence, they tried to leave through the back door, where they were confronted by one of the officers. The men went back into the house. According to Ms. Lumpkins, at some point, the men came into her room and hid their guns in the closet. Five minutes after trying to go out the back door, Swan exited the house and surrendered himself to the police. Owens stayed and continued to threaten to kill the people in the house. A few minutes later, he too left the house and was taken into custody.
Police found a camera, latex gloves, some money, and other items on Swan when he was arrested. During a search of the house, with the assistance of an ATF agent, police found eight firearms. Two loaded .357–caliber revolvers were found in a closet in the back bedroom under some clothing or blankets. One of these guns was a Smith & Wesson with one spent shell in the cylinder; the other was a High Standard with four spent shells in its cylinder. According to Detective Michael Fields, the guns smelled of gunpowder from having recently been fired. Six other loaded guns were found in the other bedroom. Though these guns turned out to belong to Lumpkins, they were still seized as evidence at the scene at that time.
Swan and Owens were charged with multiple counts of robbery, assault, wanton endangerment, and one count each of burglary and tampering with physical evidence. In addition, Owens was charged with attempted sodomy. At trial, the Commonwealth offered testimony and physical evidence consistent with the facts described above. Swan and Owens did not take the stand and called only one of the investigating officers to testify.
The jury found Swan guilty of four counts of first-degree robbery, one count of first-degree burglary, two counts of first-degree assault, six counts of first-degree wanton endangerment, and one count of tampering with physical evidence, all by a complicity theory. The jury recommended the maximum sentence on each count, all to be served consecutively. Swan was eventually sentenced to the statutory maximum 70 years.
Owens was convicted of the same charges, again all under a complicity theory, with the addition of one count of attempted first-degree sodomy as a principal. The jury again recommended the maximum sentence on each count, all to be served consecutively. Owens was eventually sentenced to the statutory maximum 70 years.
Their appeals followed as a matter of right to this Court. SeeKy. Const. § 110(2)(b). Because Swan and Owens were tried together, their appeals have been joined and have been heard together.
Swan and Owens have two issues in common, both related to the guns found in the house. These issues are addressed together; the other issues they raise are addressed separately below.
Swan and Owens complain about the admission of the guns used in their crime and the destruction of firearms belonging to one of the victims prior to trial.
Swan and Owens claim that the trial court erred in allowing admission of the guns used in the crime because, they claim, they had already been ordered suppressed. They also complain that because the guns were thought lost for a time, they were prevented from examining and testing them, which they claim would have aided in their defense. Ultimately, this Court concludes that this issue was waived and not properly preserved for appellate review, and did not prejudice Swan and Owens.
The police recovered the .357–caliber revolvers used in the crimes soon after arresting Swan and Owens. The guns were logged on a seized-property form and kept in the police property room. Photographs of these and other items were provided to defense counsel in pre-trial discovery.
More than two years after the crimes were committed, and approximately two-and-a-half weeks before trial, Swan's and Owens's lawyers went with the prosecutor and...
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