Johnny Dutrayl McSwain v. State of Indiana (mem. dec.)
46A03-1510-CR-1812
| Ind. Ct. App. | Oct 20, 2016Background
- On August 15, 2014, McSwain, with co-defendants Tyrone Stalling and Larry Crume, confronted Barry Williams and Daniel Mallett after a dispute about drug activity; McSwain knocked Williams unconscious and Crume shot Williams dead while firing at Mallett.
- The day after the killing McSwain allegedly admitted nodding to Crume to kill Williams and solicited Deanbra Martin to kill Mallett to prevent cooperation with police.
- Over the following weeks McSwain and others discussed plans (e.g., alibi at Walmart, a low-profile car, handicap plates); McSwain gave Martin a .45-caliber gun.
- Martin became a confidential informant after his arrest; police monitored the plot and later arrested McSwain and Crume at the Walmart.
- McSwain was tried alongside Crume, convicted of Murder, Attempted Murder, and Conspiracy to Commit Murder, and sentenced consecutively to 55, 35, and 30 years (aggregate 120 years).
- On appeal McSwain challenged (1) failure to sever the conspiracy charge, (2) sufficiency of evidence for the conspiracy conviction, and (3) inappropriateness of the 120-year sentence.
Issues
| Issue | State's Argument | McSwain's Argument | Held |
|---|---|---|---|
| Whether conspiracy charge should have been severed | Joinder proper because offenses were connected parts of a single scheme and severance was unnecessary given limited counts and noncomplex evidence | Severance required; conspiracy was distinct and prejudicial | Affirmed: joinder proper; trial court did not abuse discretion (offenses connected; only three charges; evidence distinct enough) |
| Sufficiency of evidence for conspiracy conviction | Martin’s testimony and McSwain’s provision of a gun constituted agreement, intent, and an overt act | Conviction rests on a single informant (felon) whose credibility is suspect | Affirmed: sufficient evidence—agreement + overt act (gun) supported conviction; credibility for jury to assess |
| Appropriateness of aggregate 120-year sentence under Ind. App. R. 7(B) | Sentence justified by separate harms: murder, attempted murder, and month‑long deliberate conspiracy to kill a witness; criminal history supports severity | Sentence excessive given circumstances and character; incident was not a prolonged crime spree | Affirmed: sentence not inappropriate considering nature (deliberate planning, multiple victims) and offender’s criminal history |
Key Cases Cited
- Pierce v. State, 29 N.E.3d 1258 (Ind. 2015) (trial court has broad leeway on severance when offenses are connected)
- Smoote v. State, 708 N.E.2d 1 (Ind. 1999) (joinder proper where murder was tied to assurance against implication for another crime)
- Harbert v. State, 51 N.E.3d 267 (Ind. Ct. App. 2016) (standard for reviewing sufficiency—no reweighing or credibility determinations)
- Cardwell v. State, 895 N.E.2d 1219 (Ind. 2008) (purpose and scope of Rule 7(B) review)
- Serrino v. State, 798 N.E.2d 852 (Ind. 2003) (consecutive sentences vindicate separate harms and acts)
- Kennedy v. State, 934 N.E.2d 779 (Ind. Ct. App. 2010) (defendant bears burden to show sentence is inappropriate)