Swan v. Commonwealth, 384 S.W.3d 77

Background

Swan and Owens were convicted after a violent 2008 home invasion in Louisville involving robbery, gun threats, and multiple injuries to victims.
Evidence showed eight firearms were seized, with two used in the crimes found in a back bedroom; Lumpkins owned the guns found elsewhere in the house and later abandoned them to the ATF, which destroyed them.
The jury found Swan guilty on multiple counts of first-degree robbery, burglary, assault, wanton endangerment, and tampering with evidence; Owens was convicted on similar counts plus attempted first-degree sodomy, all by complicity and with consecutive maximum sentences.
appellants argued issues including admissibility of the guns, destruction of other guns, Swan’s right to hybrid representation, witness-separation rules, and various sentencing concerns.
On appeal, the court affirmed Swan’s convictions and Owens’s convictions in part and reversed Owens on certain counts, remanding for judgment correction; overall sentence remained 70 years for both.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility and handling of guns as evidence	Swan and Owens claim guns should have been excluded under discovery orders and tested; order did not cover the handguns; missives argued loss and testing denial.	Guns were improperly admitted due to discovery exclusion and loss; testing was necessary for defense.	Issue waived and not preserved; no reversible error.
Destruction of other guns and due process	Destruction violated due process and deprived testing that could exonerate them.	Destruction was not exculpatory; good-faith handling; no prejudice.	No reversible error; no exculpatory value proven; missing-evidence instruction available but not required.
Right to pro se or hybrid representation; Faretta hearing	Failure to hold a Faretta hearing violated Swan’s constitutional rights.	Swan abandoned his request; changing judges created confusion but did not prejudice.	Swan abandoned his request; no Faretta hearing required; rights not violated.
Witness separation in penalty phase	Latonia Lumpkins testimony in penalty phase violated KRE 615 separation.	Rule 615 can be applied flexibly in penalty phase; no prejudice.	Discretionary allowance; no reversible error.
Lesser-included offense instruction for Owens; directed verdict on Lumpkins	Owens deserved instruction on second-degree assault; directed verdict on first-degree wanton endangerment of Latonia Lumpkins should have been granted.	Evidence could support either degree; no error in refusing some instructions or denying directed verdict in Lumpkins case.	Owens entitled to second-degree assault instruction; reverse on Latonia Lumpkins count; retrial possible for that count; no effect on overall sentence.

Key Cases Cited

Faretta v. California, 422 U.S. 806 (U.S. 1975) (constitutional right to self-representation; Faretta hearing required)
McKaskle v. Wiggins, 465 U.S. 168 (U.S. 1984) (hybrid counsel discretion)
Hill v. Commonwealth, 125 S.W.3d 221 (Ky. 2004) (Faretta framework and timing)
Depp v. Commonwealth, 278 S.W.3d 615 (Ky. 2009) (Faretta procedures and waivers in Kentucky)
Grady v. Commonwealth, 325 S.W.3d 333 (Ky. 2010) (Faretta-related duties; hybrid representation)
Brown v. Wainwright, 665 F.2d 607 (5th Cir. 1982) (waiver of pro se request; abandonment )
Parker v. Commonwealth, 241 S.W.3d 805 (Ky. 2007) (lesser-included offense instructing when evidence supports)
Tamme v. Commonwealth, 759 S.W.2d 51 (Ky. 1988) (due process and missing evidence framework)
Trombetta v. California, 467 U.S. 409 (sic 419) (U.S. 1984) (exculpatory value of destroyed evidence)
Arizona v. Youngblood, 488 U.S. 51 (U.S. 1988) (good faith standard for missing/destroyed evidence)
Estep v. Commonwealth, 64 S.W.3d 805 (Ky. 2002) (missing-evidence instructions)
Pendleton v. Commonwealth, 83 S.W.3d 522 (Ky. 2002) (competency determinations; judge's discretion)
Allen v. Commonwealth, 276 S.W.3d 768 (Ky. 2008) (statutory sentencing cap and instructions)