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Swallow v. State

Court of Appeals of Indiana

October 28, 2014

JASON D. SWALLOW, Appellant-Defendant,
v.
STATE OF INDIANA, Appellee-Plaintiff

Page 397

APPEAL FROM THE WAYNE CIRCUIT COURT. The Honorable David A. Kolger, Judge. Cause No. 89C01-1204-MR-8.

ATTORNEY FOR APPELLANT: ANDREW J. SICKMANN, Boston Bever Klinge Cross & Chidester, Richmond, Indiana.

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana, ANGELA N. SANCHEZ, Deputy Attorney General, Indianapolis, Indiana.

MAY, Judge. KIRSCH, J., and BAILEY, J., concur.

OPINION

Page 398

MAY, Judge

Jason D. Swallow appeals his conviction of murder.[1] He raises four issues on appeal:

1. Whether a special prosecutor should have been appointed when Swallow's public defender withdrew as counsel and became employed by the Wayne County Prosecutor;
2. Whether permitting the jury to hear Swallow's recorded statement that he was a drug dealer violated Indiana Evidence Rule 404(b);
3. Whether Swallow's conviction is supported by sufficient evidence; and
4. Whether his sixty year sentence is inappropriate.

We affirm.

FACTS AND PROCEDURAL HISTORY

Swallow and his girlfriend, Elisha Powell, went to a bar to drink with friends on April 11, 2012. They returned to their apartment later that night and continued drinking. At some point, the couple argued about whether Swallow wanted to rekindle a relationship with the mother of his child or was seeing other women. At around 7:00 a.m. on April 12, 2012, Swallow shot Powell in the head as she sat on the couch in their living room.

After shooting Powell, Swallow took his gun and rode his bicycle to his mother's house. He hid the gun in a box in the basement and then returned to their apartment. Swallow called 911 and told the operator he had just returned home and discovered Powell's body.

Swallow told the 911 operator, and later others, that he left the house to cool down after he and Powell argued. He told them he rode his bicycle around and smoked cigarettes for approximately half an hour. He suggested someone might have broken into the house while he was gone and killed Powell. He gave a recorded statement to that effect on the morning of the murder. Toward the end of that statement, police told Swallow they were searching his house for a gun and they expressed doubt that a burglar killed Powell with Swallow's gun. Swallow then told police that he was a drug dealer and ...


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