FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CR-14-378]
HONORABLE JOHN HOMER WRIGHT, JUDGE
Law Firm, by: Michael Kiel Kaiser and William O.
"Bill" James, Jr., for appellant.
Rutledge, Att'y Gen., by: Brad Newman, Ass't
Att'y Gen., for appellee.
W. GRUBER, CHIEF JUDGE
Swanigan was convicted by a Garland County Circuit Court jury
of one count of first-degree murder and two counts of
first-degree battery for entering an apartment in Hot Springs
and firing multiple gunshots killing Mayela Mata and injuring
her twenty-month-old daughter and a friend, Antouin Bond. On
recommendation of the jury, the circuit court sentenced
Swanigan to an aggregate term of 720 months'
imprisonment. He raises six points for reversal. We reject
them and affirm his convictions.
Mata and her fiancé, Terrence Scott, lived with their
daughter, ES, in a townhouse apartment at 200 Springwood in
Hot Springs. At around 5:00 p.m. on April 30, 2014, several
people, including Terrence's friend Antouin Bond, were at
the apartment when two masked men came to the door, and one
rushed inside, opened fire, killed Mayela, and injured ES and
Scott testified that Mayela and ES were in the living room
and that he, Antouin, and Terrence's brother Joseph were
preparing to smoke marijuana in the kitchen when Terrence saw
a "tall, skinny, black male with some really
distinguished eyes" come in holding two guns with
extended clips. A bandana covered the man's face except
for his "big ole bug eyes." The man said either
"get down" or "lay down," and he
immediately began shooting. According to Terrence, a second
man was with the shooter, but Terrence did not know whether
that man had a gun. Terrence saw Mayela fall and saw part of
her brain on the floor. After the shooter left, Terrence
learned that Antouin and ES had both been shot. Terrence also
testified that he had known Swanigan for twenty years and
often saw him at Oaklawn Racetrack. Terrence said that
Swanigan would "always be in Polo, you know, fresh
starched clothes, Polo boots, Jordans."
described the shooter as a tall, slim man with dark skin. He
said the shooter was holding two guns, and one of them had a
long clip. He was not sure about the other gun. He said he
believed the shooter spoke a few words before he began
shooting. Antouin testified that he had been in school with
Swanigan for only one year but had known him for about twenty
years. Terrence's brother Joseph testified that the
shooter had two guns, was very slim, and was wearing a hat
and a bandana. He said that he had big eyes, "real bug
Jones testified that she and her husband lived in the
apartment building right next to Terrence's building,
about ten to fifteen feet away from Terrence's apartment.
She said that at the time of the incident, she was upstairs
in her bedroom and heard what sounded like fireworks outside.
She looked out her blinds to check on her son, who was
outside playing, and saw a white car with a blue top directly
below her window. She said she saw a skinny, dark arm holding
a black gun out of the passenger side window. According to
Natasha, the car appeared to have a busted oil pan and it
started to stall on its way out of the apartment complex. She
heard screaming and went to Terrence's apartment where
Terrence handed ES to her. She said that ES had a gunshot
wound that went through her back and out her front near her
left lung and heart and there was blood coming out of her
mouth. Natasha's husband called 911.
investigator Russ Rhodes with the Arkansas State Police
testified that he arrived on the scene at 5:37 p.m. He said
that he saw what appeared to be automotive fluid in the
driveway of the parking lot. He also described the items
collected at the scene, which included a .40-caliber spent
shell casing to the right of the front door, three
nine-by-eighteen Makarov shell casings inside the front door,
and several .40-caliber TulAmmo shell casings inside the
front door and on the couch.
Floyd from the State Crime Laboratory examined the ammunition
found at the scene. She testified that the three expended
TulAmmo .40-caliber cartridge cases had all been fired from
the same gun. She also said there were three spent
9-millimeter Makarov caliber Hornady cartridge cases, all
fired from the same gun.
Corwin Battle, a special agent with the Arkansas State
Police, testified that he recovered the surveillance video of
the apartment parking lot for the time of the incident. He
testified that the video depicted a Cadillac driving up to
the apartment complex, two males getting out, one going
inside Terrence's apartment, and the other stopping at
the door. The video shows both men running to the car,
jumping in, and leaving. The video was introduced into
evidence and played for the jury. The video shows that there
is no fluid in the parking space before the Cadillac drives
up. After the Cadillac leaves the parking space, there is
what appears to be a trail of fluid and the car can be seen
as it stalls, tending to confirm Natasha's testimony
about the Cadillac.
Phil Fisher of the Garland County Sheriff's Department
testified that he had been dispatched to 115 Oak Hill in Hot
Springs on an unrelated matter around 12:30 or 1:00 p.m. on
April 30, 2014. At that time, he noticed a white Cadillac
with a blue landau top parked in front of the home. He went
back to the Oak Hill address around 4:00 or 4:30 p.m. and
again saw the white Cadillac in the driveway. Two black males
dressed in Polo-type shirts and jeans were working on the
Cadillac. He testified that shortly after he heard the
dispatch about the shooting and that the suspect vehicle was
a white Cadillac with a blue landau top, he again went to the
Oak Hill address where he saw the Cadillac with the passenger
door open. He said that the hood of the vehicle was warm.
Russell Severns, an investigator with the Garland County
Sheriff's Department, was sent to 115 Oak Hill after the
shooting to investigate. As he was photographing the
Cadillac, he noticed vehicle fluid leading to the car and
followed the trail of fluid on foot to the intersection of
Oak Hill and Airport Road. He got in his car and followed the
trail, which he said was not difficult to see. He said that
the fluid trail did not follow the most direct route, but
took a back way leading to the apartment complex at 200
Springwood. The fluid trail went past a Sonic Drive-In at the
corner of Airport Road and Danna Drive.
Severns retrieved the video footage from the security cameras
at the Sonic, which showed a white Cadillac with a blue top
driving the wrong direction through the Sonic parking lot at
4:55 p.m. on April 30, 2014. Lieutenant Severns also
interviewed a Sonic employee, Jordan Garner, who saw the
Cadillac driving the wrong way through the parking lot at a
high rate of speed between 4:30 and 5:00 p.m. that day. She
thought it was odd and looked to see who was driving the car.
Jordan testified at trial that she looked directly at the
driver, whose eyes stood out to her. She said that there was
another person in the car, but she did not look directly at
him. The day after the shooting, she identified Swanigan as
the driver from a photo lineup.
Joel Ware of the Garland County Sheriff's Department
testified that he also observed liquid in the roadway at 115
Oak Hill and took a video of the fluid trail from there to
the apartment complex on Springwood. The video was played for
Morgan testified that her child's father, who was a
friend of Swanigan's, was in jail at the time of the
incident. He had previously parked his white Cadillac with a
blue soft top in her yard. She testified that Swanigan came
to her workplace before 3:00 p.m. on April 30 and asked to
borrow the Cadillac because he did not want to use his own
car. She said that Swanigan and another man she did not know,
whom she later identified in a photo lineup as Benjamin
Pitts, arrived at her house on Oak Hill shortly after 3:00
p.m. She said that she gave Swanigan the key to the Cadillac
and warned him that the car leaked power-steering fluid and
had problems starting.
Humphries, a latent print, shoe, and tire examiner from the
State Crime Laboratory, testified that he discovered three
footwear impressions in Ciara Morgan's Cadillac, two
partial ones on the passenger side and one complete print on
the driver's floorboard. He testified that out of a
shoe-print database containing over 32, 000 shoes, the only
match for the driver's side impression was a Ralph Lauren
Polo sport boot. His report concluded that the "source
of the [driver's side] impression could have been made by
a Polo Sport Boot (by Ralph Lauren)."
Thornton testified that appellant had lived with her for
about two weeks at the time of the shooting. She said that he
had used one of her dresser drawers to store his belongings,
where a box of TulAmmo .45-caliber bullets was discovered in
a search of her home. Amanda also said that Swanigan drove a
Nissan Versa when he lived with her and that he wore Polo
boots. On April 27, 2014, Amanda, Swanigan, and two others
went to a shooting range. Swanigan shot an Uzi, a
.40-caliber, a .45-caliber, and a 9-millimeter. She said that
on April 29, Swanigan and Benjamin Pitts, whom she had not
met until that day, took her to her court appearance and
later picked her up. She said the last time she had seen
Swanigan was on April 30, the morning of the shooting. He had
come to the house, packed a suitcase, and told her that he
would see her "in a couple of days." She also said
that she gave police officers the phone numbers for two of
Swanigan's cell phones: an Android touch-screen phone and
a flip phone.
Sanstra testified that she had known Swanigan for about
sixteen or seventeen years. She said that she had loaned him
a Nissan Versa in April 2014, and he had never returned it.
The car belonged to Lauri Malott with whom Lena was living at
Ware testified that he tracked Swanigan's cell phone to
an Economy Inn in Conway where officers discovered the Nissan
Versa. A search of the hotel room led to the discovery of a
backpack containing cell phones, credit cards, a driver's
license, and other items belonging to Swanigan. They also
found the keys to the Versa and a .45-caliber semiautomatic
handgun loaded with TulAmmo .45-caliber bullets. In a Walmart
bag, officers found Federal Premium 9-millimeter ammunition
along with a purchase receipt containing a time and date
stamp of 8:03 p.m. on April 26, 2014, from the Walmart on
Albert Pike in Hot Springs. The receipt also listed the
register location, which was the sporting-goods counter. The
Walmart receipt led officers to the discovery of a Walmart
security video taken at the time provided on the receipt at
the register, which was played for the jury. The video shows
two black males purchasing the ammunition listed on the
receipt, which included a box of TulAmmo .45-caliber shells,
a box of TulAmmo .40-caliber shells, and a box of Federal
9-millimeter shells. A receipt from Trader Bill's,
located across the street from the Albert Pike Walmart, was
found in the Versa. The receipt reflected that Winchester
9-millimeter ammunition and targets were purchased at 8:26
p.m. on April 26, 2014.
Terry Threadgill participated in the investigation at the
Economy Inn. He testified that he parked his car in the
Waffle House parking lot adjacent to the motel parking lot.
He saw Swanigan come out of the motel room, start down the
stairs, and take off running. Lieutenant Threadgill said that
he chased him but was not able to apprehend him.
Rhodes searched the contents of a cell phone discovered in
the Conway motel room. The history on the phone showed an
article from a Hot Springs paper about the shooting, a link
to the official website of the Hot Springs Police Department,
and a search of "police scanner" at 5:32 p.m. on
April 30, 2014, a half hour after the shooting occurred.
Investigator Rhodes also obtained photographs from Walmart of
the persons who purchased the ammunition listed on the
receipt found in the Conway motel: Swanigan and Benjamin
Points on Appeal
Sufficiency of the Evidence
first point on appeal, Swanigan argues that the circuit court
erred in refusing to grant his directed-verdict motion. A
motion for a directed verdict is a challenge to the
sufficiency of the evidence. George v. State, 356
Ark. 345, 151 S.W.3d 770 (2004). The test for determining the
sufficiency of the evidence is whether the verdict is
supported by substantial evidence, direct or circumstantial.
Id. at 350-51, 151 S.W.3d at 773. Substantial
evidence is evidence forceful enough to compel a conclusion
one way or the other beyond suspicion or conjecture.
Id. at 351, 151 S.W.3d at 773. When reviewing a
challenge to the sufficiency of the evidence, the evidence is
viewed in the light most favorable to the verdict, and only
evidence supporting the verdict will be considered.
Jackson v. State, 363 Ark. 311, 315, 214 S.W.3d 232,
235 (2005). We do not weigh the evidence presented at trial,
as that is a matter for the fact-finder. Harmon v.
State, 340 Ark. 18, 22, 8 S.W.3d 472, 474-75
(2000). Witness credibility is also an issue for the
fact-finder, who is free to believe all or a portion of any
witness's testimony and whose duty it is to resolve
questions of conflicting testimony and inconsistent evidence.
Jackson v. State, 2011 Ark.App. 528, at 6, 385
S.W.3d 394, 397. Finally, circumstantial evidence can support
a conviction; whether it does so is for the jury to decide.
Lowry v. State, 365 Ark. 6, 16, 216 S.W.3d 101, 107
argues that the evidence was insufficient to prove that he
was the shooter, that he was at the crime scene at the time
of the event, or that he was connected to the Cadillac
involved in the shooting. He argues that the State's case
rested entirely on circumstantial evidence, which failed to
create a reasonable inference that he was the shooter or
present inside the Cadillac. Specifically, he argues that he
presented two witnesses who testified that they saw another
man, Valiquese Coger, driving a white Cadillac with a blue
top into the apartment complex around the time of the
shooting. He also claims that no witness identified him at
trial as the shooter, and while he does not dispute the
evidence that he borrowed a Cadillac similar to the one used
by the perpetrators, he argues there was no substantial
evidence that the car he used was the one involved in the
shooting. He argues that the State's evidence did not
exclude every other reasonable conclusion, chiefly that
Swanigan was driving a different Cadillac than the one used
in the shooting.
there was evidence that excluded Swanigan-i.e.,
Swanigan's DNA was not found on a glove located in the
road near the Sonic parking lot, in the Cadillac Ciara Morgan
loaned to Swanigan, or at the crime scene-guilt may be
established without either DNA evidence or eyewitness
testimony, and evidence of guilt is not less because it is
circumstantial. Jackson, 363 Ark. at 316, 214 S.W.3d
at 236. The eyewitnesses to the crime in this case-Terrence,
Antouin, and Joseph-testified that the shooter had his face
covered except for his eyes, which Terrence and Joseph
described as "bug eyes," and said only a few words.
They also described the shooter as black, with dark skin, and
slim. The jurors could see Swanigan in the courtroom, and a
photo lineup containing Swanigan's photo was introduced
into evidence for the jurors to view.
neighbor, Natasha Jones, testified that the shooter drove up
in a white Cadillac with a blue top that appeared to have a
busted oil pan and repeatedly stalled as it was leaving the
apartment complex. This description was confirmed by the
video from the apartment complex. Swanigan does not dispute
that he had borrowed Ciara Morgan's Cadillac around the
time of the incident; he argues that the evidence did not
demonstrate that Ciara's Cadillac was the one involved.
Ciara Morgan testified that the Cadillac she loaned to
Swanigan and Pitts shortly before the shooting was leaking
power-steering fluid and had trouble starting. She also said
that Swanigan told her he needed the Cadillac because he did
not want to use his own car. Evidence showed that Swanigan
had possession of a Nissan Versa at this time. Finally,
evidence was presented to the jury to show that the Cadillac
involved in the shooting left fluid in the parking space at
the apartment complex, and testimony and a video were
introduced to demonstrate that a trail of fluid led from the
apartment complex to Ciara Morgan's house. Although
Swanigan argues that the state crime lab did not precisely
identify the fluid or connect the substance found at Ciara
Morgan's property, on the fluid trail, or at the crime
scene to Ciara's Cadillac, the jury heard testimony from
witnesses who followed the trail of fluid and viewed the
video of the trail from Ciara's home to the crime scene.
Ultimately, this is a factual question for the jury.
Swanigan points to the testimony of two defense witnesses who
testified that they saw Valiquese Coger driving a Cadillac
through the apartment complex at the time of the shooting,
credibility and weight to be given testimony is for the jury.
Further, the State presented contradictory evidence from
Kenny Ford, an investigator on the case. He testified that he
obtained a surveillance video from a motel across town from
the shooting taken on April 30 ...