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Swain v. State

The defendant was not denied his right to a fair and impartial jury when the trial court severed his trial from that of a co-defendant and proceeded with defendant's trial after the jury had been selected.

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The appellant, Ricky Swain, appeals from his convictions for the felony murder of Samuel Tucker; for the armed robbery of Pascal Greene, Octavia Shellington, and Tucker; for the aggravated assault of Shalawn Shellington; for the burglary of the home of Shalawn Shellington; and for the possession of a firearm during the commission of a crime.1

1. The evidence shows that about 1:00 a.m. on December 5, 1995, Octavia Shellington and Samuel Tucker were talking in Tucker’s parked car outside the residence of Shalawn Shellington Octavia’s sister and Pascal Greene. As Octavia and Samuel Tucker talked, a masked man in dark clothing approached and asked for a light. When Tucker said he did not have one, the man pulled out a gun, demanded Tucker’s money, and, upon receiving the money, made Tucker and Octavia exit the car and lay on the ground. The gunman then took Octavia’s jewelry from her. Before the jewelry was taken, a second masked man, with a gun similar to that of the first man, entered Shalawn’s house. Octavia testified that the first man then forced Tucker and Octavia to enter the house and go into Shalawn’s bedroom where Shalawn and Greene had been awakened. One of the men pulled Greene from the bed, hit him on the head with a gun, and took his money. The men then told Tucker and Octavia to lie on the bed with Shalawn and all were warned against looking at the intruders. While one man escorted Greene around the house to look for money and jewelry, the other man remained in the bedroom to guard the three people on the bed. Against earlier warnings, Tucker looked at the man guarding the bedroom, and the man shot Tucker in the head, killing him.

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