OCTOBER 3, 2018
FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT GRANT
COUNTY, SOUTH DAKOTA THE HONORABLE ROBERT L. SPEARS Judge
J. JACKLEY Attorney General
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.
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.
and Procedural History
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.
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
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."
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.
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.
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