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Swanagan v. State

Supreme Court of Mississippi

May 18, 2017

VICTORIA SWANAGAN a/k/a VICTORIA P. SWANAGAN
v.
STATE OF MISSISSIPPI

          DATE OF JUDGMENT: 08/03/2015

         HINDS COUNTY CIRCUIT COURT HON. WILLIAM A. GOWAN, JR.

          TRIAL COURT ATTORNEYS: DAVID LINZEY IVON JOHNSON DAMON STEVENSON DEXTER WOODBERRY

          ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS GEORGE T. HOLMES

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA McCLINTON

          DISTRICT ATTORNEY: ROBERT SHULER SMITH

          BEFORE RANDOLPH, P.J., KITCHENS AND CHAMBERLIN, JJ.

          RANDOLPH, PRESIDING JUSTICE

         ¶1. Victoria P. Swanagan was convicted by a jury of the depraved-heart murder of Vincent Hill and was sentenced to twenty-five years in the custody of the Mississippi Department of Corrections (MDOC), with ten years suspended, fifteen years to serve, and five years of supervised probation.[1] Finding no error, we affirm the sentence and conviction of Swanagan.

         STATEMENT OF THE FACTS AND PROCEEDINGS BELOW

         ¶2. At trial, Derrick Sims testified that he and Vincent P. Hill worked together. When Sims arrived at Swanagan's home to pick up Hill for work, he heard Swanagan and Hill arguing in her house. Swanagan exited her house and went next door to her mother's house. During that time, Hill stayed inside Swanagan's house. When Swanagan returned, Sims heard a "ruckus." After a while, Hill came rushing out of the house without a shirt. "About the time he made it halfway down the stairs she hit him in the back of the - Victoria hit him in the back of the head."

When they come outside, when she hit him in the back of the head, he leaned against her car, and he said, don't hit me no more. And he told her mama, I love your daughter to death, but look how she treat me. That was his exact words. He didn't cuss at her. He didn't call her nothing out of her name. That's exactly what he said. And after that she said a little something, and he came and got in my truck. He was, like, man, let's go. He said, I'm tired. That was his exact words.

Swanagan opened the passenger door and got in the truck. Hill told Sims to drive to work. Sims also testified that no one forced Swanagan to get in his truck.

         ¶3. Swanagan and Hill continued arguing in the truck. The arguing escalated, and Swanagan hit Hill. Sims testified that Hill could not strike Swanagan, "[b]ecause he was so tall in the truck it's like how she was over him he couldn't move." Then Swanagan bit Hill. Hill started yelling and screaming, causing Sims to stop the truck. Sims got out of the truck and opened the passenger door. Swanagan and Hill fell out at the same time. As they were falling to the ground, Hill hit Swanagan on top of her head. Sims testified that Hill hit Swanagan only that one time, before he jumped up and ran to the truck, yelling at Sims to "come on."

         ¶4. Sims was behind the truck, headed toward the driver's side door, when he heard the first gun shot and saw Swanagan with a gun, shooting at the truck. Swanagan was on the ground and had her hand securely on a pistol, pointing up at the truck. As Hill started to drive off, Sims heard two more shots. After Swanagan had put the gun down, she told Sims she would buy him a new window.

         ¶5. Sims heard his truck stop running, and he ran off toward it. Sims found the truck in some woods nearby. Sims found Hill "in the center of the dashboard dead." Sims then jumped in the truck and drove to Swanagan's residence. "I jumped out of the truck immediately, and I couldn't say nothing but you killed him. . . . I just got in the truck and left the scene." Sims then drove to a service station because he wanted to be safe.

         ¶6. Sims testified that he neither owned a gun nor had a gun in his possession the day Hill was killed. He said Hill knew that Sims no longer owned a gun. Even when Sims did own a gun, he carried it in his truck only when he went fishing, but never to work. Sims testified that Swanagan had been fishing with Sims and Hill, but she also knew he had gotten rid of his gun.

         ¶7. Felicia Robinson, a forensic scientist with the Mississippi Forensic Laboratory, was accepted as an expert in the field of forensic analysis of firearms and tool marks. Robinson testified that the projectile submitted to the crime lab from Hill was fired from the firearm retrieved from Swanagan's property.

         ¶8. Lisa Funte, a state forensic pathologist, was accepted as an expert in the field of forensic pathology. Funte testified that she performed the autopsy on Hill. During the autopsy, Funte noted abrasions and contusions on his face, neck, hands, and legs. Funte also found

an entrance defect on the right side of the chest and an exit defect on the left side of the chest. In alignment with that exit defect that was on the left side of the chest there was also defects in the left arm. The bullet went from the right side of the chest through the chest, exiting on the left side and reentered the left arm where the bullet was recovered.

         ¶9. After the State rested and motions were denied, Swanagan offered her defense. Barbara Swanagan, mother of Victoria Swanagan, testified that on the morning Hill was killed, her daughter came over to her home twice. She heard noise in her daughter's home each time Swanagan returned home. Barbara went outside and called for her daughter. Both Swanagan and Hill exited the house. Barbara tried to defuse the situation by talking calmly to both Hill and Swanagan, but Hill cursed at Barbara.

         ¶10. After thinking she had calmed everyone down, Barbara turned to go back in her house. As she turned, she heard the truck start. She saw the truck start and stop several times and was worried that something was not right. She asked her daughter-in-law to call 911, and while Barbara was talking to the 911 operator, she heard gunshots. Barbara saw her daughter walking toward them with a gun in her hand. Barbara was neither in her daughter's house when Swanagan and Hill were fighting, nor did she see her daughter shoot Hill.

         ¶11. Swanagan testified that, on the morning Hill was shot, she asked him about text messages she had received from his family, and he "blew up" at her. Hill accused her of cheating on him and then made sexual advances towards her. When she refused, he began to shove, hit, and call her names. She said this continued for more than ten minutes.

         ¶12. When Hill refused to leave, Swanagan walked to her mother's house to get ready for work but then returned after she heard noises coming from her house. She returned and found that Hill had turned over stands, knocked things off of furniture, and punched holes in her walls. Swanagan tried to gather her things for work. Hill refused to leave and continued to knock things over. He then ripped off his shirt.

         ¶13. Swanagan grabbed her purse and went back to her mother's house. She heard noises again, went home, and found that Hill was still tearing her house apart. They began to argue again, and at some point, her tooth was knocked out.[2] Swanagan admitted to hitting and scratching Hill while they were fighting inside her home.

         ¶14. Swanagan then heard her mother calling for her. She and Hill went outside. Hill got in Sims's truck, while pulling her into the truck. As she was trying to figure out how to get out of the truck since the passenger-side door had no handle, Hill hit her from behind. Hill told Sims to "crank the truck. Let's go. We're gonna drop this bitch off on the side of the interstate." Hill began twisting Swanagan's arms, pinning her, and then tried to bite her, but she was able to bite him first. When she bit him, he yelled, and Sims stopped the truck. Sims then opened the passenger-side door from outside the truck. Hill shoved Swanagan out of the truck. While she was on the ground, Hill continuously kicked her. Swanagan tried to protect herself from his blows. While Hill was kicking her, his gun fell out. Swanagan rolled on top of the gun when Hill tried to retrieve it.

         ¶15. After he was unable to get the gun, Hill began to back up, nearing the truck. As Hill got close to the truck, he reached behind him, trying to get something out of the truck. Swanagan feared that Hill was trying to find Sims's gun that he kept in his truck. Swanagan was "scared for her life" and told Hill to leave. He did not leave, but instead continued "fidgeting" in the truck. Swanagan then fired the gun, hoping Hill would leave. Hill then called Swanagan a "dumb bitch." She recalled screaming for Hill to leave and the gun going off two or three more times. At some point Hill got back in the truck and drove away, but Swanagan could not recall when she fired the other shots. When she saw that Hill was leaving, she began walking back to her house.

         ¶16. The jury found Swanagan guilty of depraved-heart murder. Swanagan was sentenced to a term of twenty-five years in the custody of the MDOC, with ten years suspended and five years to be served on supervised probation. Subsequently, Swanagan filed a motion for judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, arguing that "the State failed to prove [Swanagan] was not acting in self-defense at the time [Hill] was shot." Swanagan also argued that, if she was not acting in self-defense, at most the evidence presented at trial established that she was acting in the heat of passion, which "would mitigate the murder to manslaughter." The trial court denied her motions after determining the jury was properly instructed and had heard the facts, before finding Swanagan guilty of depraved-heart murder.

         STATEMENT ...


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