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Swanigan v. State

Court of Appeals of Arkansas, Division I

May 29, 2019

STEVEN SWANIGAN APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CR-14-378] HONORABLE JOHN HOMER WRIGHT, JUDGE

          James Law Firm, by: Michael Kiel Kaiser and William O. "Bill" James, Jr., for appellant.

          Leslie Rutledge, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.

          RITA W. GRUBER, CHIEF JUDGE

         Steven 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.

         I. Facts

         Mayela 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 Antouin.

         Terrence 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."

         Antouin 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 eyes."

         Natasha 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.

         Criminal 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.

         Jennifer 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.

         Officer 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.

         Deputy 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.

         Lieutenant 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.

         Lieutenant 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.

         Lieutenant 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 the jury.

         Ciara 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.

         Bobby 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)."

         Amanda 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.

         Lena 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 the time.

         Lieutenant 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.

         Lieutenant 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.

         Investigator 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 Pitts.

         II. Points on Appeal

         A. Sufficiency of the Evidence

         For his 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 (2005).

         Swanigan 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.

         While 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.

         Terrence's 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.

         While 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 ...


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