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State v. Swan

Supreme Court of South Dakota

March 13, 2019

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
MICHAEL BERT SWAN, Defendant and Appellant.

          ARGUED OCTOBER 3, 2018

          APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT GRANT COUNTY, SOUTH DAKOTA THE HONORABLE ROBERT L. SPEARS Judge

          MARTY J. JACKLEY Attorney General

          GRANT FLYNN Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee. SCOTT R. BRATLAND Watertown, South Dakota Attorney for defendant and appellant.

          GILBERTSON, Chief Justice.

         [¶1.] Michael B. Swan appeals his conviction for second-degree murder, arguing the circuit court abused its discretion by failing to instruct the jury on the lesser-included offenses of first- and second-degree manslaughter. Swan also claims the circuit court erred by denying his two motions for judgment of acquittal. We reverse and remand.

         Facts and Procedural History

         [¶2.] Sixty-three-year-old Swan and his wife, 77-year-old Angelina Swan, resided in an apartment in Milbank. At approximately 4:00 a.m. on October 24, 2016, Swan called his longtime friend Duane Pollock and claimed he was unable to wake Angelina. Pollock arrived at Swan's apartment within five minutes to check on Angelina, but was unable to detect a pulse. Pollock attempted to open Angelina's mouth and found that her jaw was locked shut. Pollock also noticed extensive bruising on Angelina's face and arms.

         [¶3.] Pollock contacted the Grant County Detention Center and requested an ambulance and the assistance of law enforcement. Milbank Police Officer Michael Morgan arrived at Swan's apartment at approximately 4:15 a.m. Officer Morgan observed that Angelina was cold, gray, stiff, and that her jaw was locked. He also noticed that Angelina had a black eye, bruising on the left side of her face and right hand, and blood in her nose. Officer Morgan contacted Milbank Chief of Police Boyd Van Vooren, who contacted the South Dakota Division of Criminal Investigation (DCI).

          [¶4.] DCI Special Agent Cameron Corey, along with Special Agents Jeff Kollars and Jeff Belon, investigated Angelina's death. Agent Corey conducted two interviews with Swan. Swan explained that on the afternoon of October 23, 2016, he and Angelina watched television for most of the day and had no visitors. Swan claimed that between 12:30 and 1:00 a.m., Angelina was lying in her chair and he told her she should go to bed. Swan stated that Angelina kicked her foot at him because she did not want to go to bed. In response, Swan claimed "he gave the bottom of her foot a pop." Swan then assisted Angelina to the bathroom and then to the bedroom, where he helped her lay down on an air mattress.

         [¶5.] Swan told Agent Corey that he and Angelina "squabbled after she had gone to bed, but that's all, just husband and wife after so much time, just squabbling." Swan also stated that "[w]e didn't really fight or anything like that, just squabbled." He claimed the couple was not "cursing at each other or anything like that. It did get a little vocal when I was taking her to bed saying just lay down, get some sleep. That's all."

         [¶6.] Swan claimed that after Angelina fell asleep, he sat at his desk and could hear her snoring. He also claimed that he checked on her periodically. Once when he checked on her, Swan stated Angelina had rolled off the air mattress, but she did not want Swan to help her back onto it. Swan continued watching television and checking on Angelina until at least 2:00 a.m. Around that time, Swan claimed he could no longer hear Angelina snoring, so he went to check on her again. Swan claimed that he found Angelina in the same position next to the air mattress, but that he was not able to wake her up. Swan said he began slapping the side of Angelina's face but that she still would not wake up. He also claimed that he attempted to give Angelina mouth-to-mouth resuscitation. When that failed, Swan stated he called Pollock for help.

         [¶7.] Minnehaha County Medical Examiner Dr. Kenneth Snell performed an autopsy the next day. Dr. Snell discovered that Angelina had suffered a severe atlanto-occipital dislocation (AOD), also known as an internal decapitation. Additionally, his examination found that Angelina had sustained two subdural hemorrhages, hemorrhaging to the sclera in both eyes, and several hemorrhages on her back where her ribs met her spine. Dr. Snell further noted bruising on Angelina's upper and lower eyelids and left cheek, as well as bruising on her abdomen, right buttock, right arm, right hand, right thigh, right knee, and inner left shin. Dr. Snell concluded that Angelina's death was caused by internal decapitation likely caused by someone stomping on her neck.

         [¶8.] The State initially charged Swan with domestic simple assault, but amended the complaint to charge Swan with second-degree murder after receiving the autopsy results. Swan was indicted and a trial was held on September 11, 2017. Throughout the trial, Swan asserted that Angelina's death ...


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