19 N.E.3d 396
Ind. Ct. App.2014Background
- Swallow was convicted of murder in Wayne County, Indiana, with a sixty-year sentence.
- Dean, Swallow’s attorney, began employment with the Wayne County Prosecutor, creating a potential conflict of interest.
- Swallow moved for a special prosecutor; the trial court denied the motion.
- Swallow’s recorded statement claiming he was a drug dealer was admitted over objection and later elicited at trial.
- Forensic evidence showed Powell was shot from a close range with a 9mm handgun; Swallow admitted shooting Powell, claiming it was accidental,
- Swallow testified the gun fired unintentionally when retrieved from a couch area; the jury weighed inconsistent accounts and forensic testimony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a special prosecutor was required | Swallow argues Dean’s prosecutor role created an actual conflict. | State contends no confidential information was shared; office-wide disqualification unnecessary. | No abuse; no actual conflict justifying a special prosecutor. |
| Whether admitting Swallow's statement 'drug dealer' was proper | Statement was relevant to motive and not to prove character under 404(b). | Statement improperly prejudicial under 404(b) and 403. | Admission upheld; limiting instruction given; not an abuse of discretion. |
| Whether the evidence supports the murder conviction | Swallow’s sole witness to the death; forensic and timeline evidence supports guilt. | Inconsistencies in Swallow’s story undermine guilt. | Sufficient evidence supports conviction beyond a reasonable doubt. |
| Whether sixty-year sentence is inappropriate | Advisory murder range allowed sixty-year term under statute. | Sentence may be inappropriate considering nature and character. | Sentence not inappropriate under Appellate Rule 7(B); affirmed. |
Key Cases Cited
- Camm v. State, 957 N.E.2d 205 (Ind. Ct. App. 2011) (abuse standard for special-prosecutor denial)
- State v. Tippecanoe County Court, 432 N.E.2d 1377 (Ind. 1982) (test for disqualifying conflicts of interest)
- Embry v. State, 923 N.E.2d 1 (Ind. Ct. App. 2010) (Rule 403/404(b) balancing with limiting instruction)
- Williams v. State, 631 N.E.2d 485 (Ind. 1994) (special prosecutor not required where no disclosure of confidential info)
- Rhoton v. State, 938 N.E.2d 1240 (Ind. Ct. App. 2010) (death sentence appropriateness under circumstances)
- Johnson v. State, 986 N.E.2d 852 (Ind. Ct. App. 2013) (advisory murder range guidance for sentencing)
- McHenry v. State, 820 N.E.2d 124 (Ind. 2005) (jury weighs evidence and credibility; standard for sufficiency)
- Sears Roebuck & Co. v. Manuilov, 742 N.E.2d 457 (Ind. 2001) (Appellate review standard for abuse of discretion)