Swann v. State, 2000-KA-01238-SCT.

• Decision Date: 07 February 2002
• Docket Number: No. 2000-KA-01238-SCT.,2000-KA-01238-SCT.
• Parties: Ronnie Lee SWANN v. STATE of Mississippi.
• Court: Mississippi Supreme Court

806 So.2d 1111

Ronnie Lee SWANN v. STATE of Mississippi.

No. 2000-KA-01238-SCT.

Supreme Court of Mississippi.

February 7, 2002.

John David Weddle, Tupelo, for Appellant.

Office of the Attorney General by Billy L. Gore, for Appellee.

Before SMITH, P.J., COBB and DIAZ, JJ.

DIAZ, Justice, for the Court.

¶ 1. This is a criminal appeal from a conviction of capital murder in the Circuit Court of Itawamba County, Mississippi, Judge Thomas J. Gardner, III, presiding. At the conclusion of a six-day bifurcated trial by jury conducted March 15-20, 1999, Ronnie Lee Swann was convicted of capital murder and sentenced by the jury to serve a term of life imprisonment without the benefit of probation or parole.

¶ 2. John Edward Seal, a fifty year old resident of Tupelo, disappeared in Lee County on February 7, 1986, while on his way home from the Veteran's Administration Hospital in Memphis. In January of 1998, following a tip from an anonymous citizen informant, Seal's clothing and skeletal remains were recovered from an abandoned well in southwest Itawamba County, north of Nettleton. Nearly twelve (12) years after Seal's mysterious disappearance, Swann, a thirty-four-year-old Pontotoc resident, was charged with killing Seal while engaged in the commission of the crime of armed robbery.

¶ 3. Swann was indicted on April 2, 1998, accordingly:

Ronnie Lee Swann ... on the 8th Day of February, ... 1986, ... did wilfully, unlawfully and feloniously and with deliberate design kill and murder John Edward Seal, a human being, while he, the said Ronnie Lee Swann, was engaged in the commission of the crime of Armed Robbery, said Capital Murder being in violation of Section 97-3-19(2)(e), Mississippi Code 1972 Annotated, as amended....

¶ 4. Six issues are now before this Court:

1. Whether the trial court erred in denying Swann's pretrial motion for a change of venue;

2. Whether the trial court erred in denying jury instruction D-11, an instruction focusing upon the prior inconsistent statements given by an eyewitness;

3. Whether the verdict of the jury was against the overwhelming weight of the evidence 4. Whether the trial court erred in denying the defendant's motion to quash the indictment;

5. Whether the trial court erred in overruling the defendant's motion to disclose the identity of the confidential source who provided law enforcement authorities information concerning the disappearance of Seal and the location of his skeletal remains; and

6. Whether the trial court, during the sentencing phase of the bifurcated trial, erred in giving a jury instruction authorizing the jury to impose a sentence of life imprisonment without parole.

FACTS

¶ 5. During the early morning hours of February 8, 1986, Seal was killed near an abandoned well in rural Itawamba County. A tip from an anonymous source led investigators from the Tupelo Police Department and the Itawamba County Sheriffs Department to the well in Itawamba County where members of the dive team from the Tupelo Fire Department were able to recover eighty-five to ninety percent of Seal's skeletal remains along with much of Seal's clothing. The property where Seal's body was recovered was referred to as "the old Swann property down on Culver Road."

¶ 6. According to the testimony of Seal's father, before Seal's disappearance around midnight on February 7, 1986, Seal was on his way back home from Memphis after a visit to the Veteran's Administration Hospital. According to Mark Haygood, who was at the time employed by the Lee County Sheriffs Office, Seal's car was stuck in a median near the Belden exit on Highway 78. Johnny Finney, a detective with the Tupelo City Police at the time, testified that he followed many leads regarding the disappearance of Seal. These leads included dragging through bodies of water and also an investigation into Seal's ex-wife and insurance policies naming her as the beneficiary. Finney testified that none of the leads he followed had any connection to Swann.

¶ 7. The confidential informant first contacted Sheriff Joe Bryant of Union County. The informant only offered to provide the information regarding Seal's disappearance if the sheriff promised to protect his identity. The informant accompanied Sheriff Bryant to the location where he believed that Swann and Holly Jo Poe were present when the body of Seal was thrown into the well. Sheriff Bryant testified that he was satisfied that the confidential informant was not involved in the crime based upon the conversation that he had with the informant.

¶ 8. Lieutenant Michael Berthay, with the Mississippi Highway Patrol Criminal Investigation Bureau, testified that he met with Poe and Swann to question them about the homicide. Poe initially denied any knowledge of the matter. Poe was given a polygraph test after her initial statement and a second statement, both of which showed deceptive responses. On her third statement, Poe revealed all the details that led to the indictment of Swann. She admitted that she had given several prior inconsistent statements to law enforcement, but stated that her last version was the truth.

¶ 9. Swann, at the time of Seal's disappearance in 1986, was a twenty-three-year-old resident of New Albany in Union County. Swann had lived on "the Old Swann property" until he was nine years of age, and his grandparents had moved away from there in 1982. At the time of Swann's trial in 1999 for Seal's murder, Swann was thirty-five years of age and the father of four children, one of whom was born to Poe, the State's key witness. ¶ 10. According to Poe, Seal was seated inside his automobile when Swann stopped under the pretense of rendering assistance to Seal. Swann, in the presence of Poe, took Seal to Swann's old home place in Itawamba County where, after enticing Seal out of the car, Swann struck Seal twice in the head with a nunchaku (commonly called "nun-chucks") and slit his throat with a knife. After a nonproductive search of Seal's clothing for money, Swann dropped Seal's body into a well.

¶ 11. Poe testified as follows:

And he pushed me back and he grabbed Mr. Seal[ ] around the arms and went to pulling him towards the well. And he got him to the well, and one of Mr. Seal's shoes fell off while Ronnie was dragging him to the well. And he got him to the well, and he throwed him over in it, and he hollered, told me to bring him the shoe. And I wouldn't do it [to] start with. And he told me I'd better or else the same thing would happen to me. (Witness crying.) And so I reached and got the shoe and brought it to Ronnie and he throwed it in the well with Mr. Seal[ ]. (Witness Crying).

¶ 12. According to the testimony of Poe, Swann planned and intended to rob Seal. After taking Seal to "the old Swann property," he "ripped" Seal's throat with the knife and stuffed his body headfirst into the abandoned well. Swann told Poe "to make sure I always kept my mouth shut and not forget that, that I'd better keep my mouth shut."

¶ 13. Several hours after the killing, Swann and Poe drove to Florida. Swann testified he remembered going to Florida with Poe in February of 1986, but could not remember the day or the date. According to Swann, "Holly had some bad check, and she figured she'd go to prison for it, so we decided to go to Florida." Swann testified he had $600 from "my income tax check through William Gates' pawn shop, quick cash thing."

¶ 14. Swann denied that he and Poe stopped at any time to help an individual in a stalled vehicle. He denied ever seeing Seal. Swann stated that he did not rob anyone and did not commit a murder.

¶ 15. At trial, Poe identified the knife used by Swann to cut Seal's throat. Swann's ex-wife, Mary Swann, testified that she purchased the knife for Swann in 1993, several years after the murder of Seal. Swann also testified that the knife found in his home by law enforcement was purchased for him by his ex-wife, seven years after Seal's mysterious disappearance.

¶ 16. Swann renewed a motion to compel disclosure of the confidential informant. He also moved to dismiss the charge on the same ground "based on the lack of the ability to confront and cross-examine what we feel like is essentially the main witness against Mr. Ronnie Swann." Motions by Swann for directed verdict, disclosure, and to dismiss the charges were overruled. At the close of the evidence, Swann's renewed motion for a directed verdict of acquittal was denied. His request for peremptory instruction was also denied. The jury found Swann guilty of capital murder. Swann's motion for JNOV or, in the alternative, a new trial, was also denied.

ANALYSIS

I. DID THE TRIAL JUDGE ABUSE HIS DISCRETION IN DENYING SWANN'S MOTION FOR A CHANGE OF VENUE?

¶ 17. Swann argues that because of the publicity and media coverage, the judge should have granted his request for a change of venue. Swann's motion for a change of venue was supported by affidavits from three citizens who stated that Swann could not receive a fair and impartial trial in Itawamba County. Swann also called Mary Bishop, a convenience store manager in Itawamba County, to testify that she came in contact with many people who had heard about the case. Area newspapers and several videotapes containing news reports regarding the case were introduced into evidence at the trial. Some of the reports indicated that Swann had prior felony charges. Swann successfully created a presumption that it was impossible for a fair trial to be had in the existing venue.

¶ 18. The State attempted to rebut that presumption through a pre-trial hearing conducted on September 1, 1998. Five witnesses, Itawamba County Supervisors from different districts, testified that Swann could receive a fair trial in Itawamba County. After hearing the arguments of both parties and reviewing the news articles and videotapes, the circuit judge took the matter under advisement. The trial began about six months later, on March 15, 1999.

¶ 19. The State can rebut...