IN THE SUPREME COURT OF MISSISSIPPI

NO. 2000-KA-01238-SCT

RONNIE LEE SWANN

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 3/20/1999

TRIAL JUDGE: HON. THOMAS J. GARDNER, III

COURT FROM WHICH

APPEALED:

ITAWAMBA COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: JOHN DAVID WEDDLE

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:BILLY L.

GORE

DISTRICT ATTORNEY: JOHN RICHARD YOUNG

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: AFFIRMED - 02/07/2002

MOTION FOR REHEARING

FILED:

MANDATE ISSUED: 2/28/2002

BEFORE SMITH, P.J., COBB AND DIAZ, JJ.

DIAZ, JUSTICE, FOR THE COURT:

¶1. This is a criminal appeal from a conviction of capital murder in the Circuit Court of Itawamba County,

Mississippi, Judge Thomas J. Gardner, III, presiding. At the conclusion of a six-day bifurcated trial by jury

conducted March 15-20, 1999, Ronnie Lee Swann was convicted of capital murder and sentenced by the

jury to serve a term of life imprisonment without the benefit of probation or parole.

¶2. John Edward Seal, a fifty year old resident of Tupelo, disappeared in Lee County on February 7, 1986,

while on his way home from the Veteran's Administration Hospital in Memphis. In January of 1998,

following a tip from an anonymous citizen informant, Seal's clothing and skeletal remains were recovered

from an abandoned well in southwest Itawamba County, north of Nettleton. Nearly twelve (12) years after

Seal's mysterious disappearance, Swann, a thirty-four-year-old Pontotoc resident, was charged with killing

Seal while engaged in the commission of the crime of armed robbery.

¶3. Swann was indicted on April 2, 1998, accordingly:

Ronnie Lee Swann . . . on the 8th Day of February, . . . 1986, . . . did wilfully, unlawfully and

feloniously and with deliberate design kill and murder John Edward Seal, a human being, while he, the

said Ronnie Lee Swann, was engaged in the commission of the crime of Armed Robbery, said

Capital Murder being in violation of Section 97-3-19 (2) (e), Mississippi Code 1972 Annotated, as

amended . . . .
¶4. Six issues are now before this Court:

1. Whether the trial court erred in denying Swann's pretrial motion for a change of venue;

2. Whether the trial court erred in denying jury instruction D-11, an instruction focusing upon the prior

inconsistent statements given by an eyewitness;

3. Whether the verdict of the jury was against the overwhelming weight of the evidence;

4. Whether the trial court erred in denying the defendant's motion to quash the indictment;

5. Whether the trial court erred in overruling the defendant's motion to disclose the identity of the

confidential source who provided law enforcement authorities information concerning the

disappearance of Seal and the location of his skeletal remains; and

6. Whether the trial court, during the sentencing phase of the bifurcated trial, erred in giving a jury

instruction authorizing the jury to impose a sentence of life imprisonment without parole.

FACTS

¶5. During the early morning hours of February 8, 1986, Seal was killed near an abandoned well in rural

Itawamba County. A tip from an anonymous source led investigators from the Tupelo Police Department

and the Itawamba County Sheriff's Department to the well in Itawamba County where members of the dive

team from the Tupelo Fire Department were able to recover eighty-five to ninety percent of Seal's skeletal

remains along with much of Seal's clothing. The property where Seal's body was recovered was referred to

as "the old Swann property down on Culver Road."

¶6. According to the testimony of Seal's father, before Seal's disappearance around midnight on February

7, 1986, Seal was on his way back home from Memphis after a visit to the Veteran's Administration

Hospital. According to Mark Haygood, who was at the time employed by the Lee County Sheriff's Office,

Seal's car was stuck in a median near the Belden exit on Highway 78. Johnny Finney, a detective with the

Tupelo City Police at the time, testified that he followed many leads regarding the disappearance of Seal.

These leads included dragging through bodies of water and also an investigation into Seal's ex-wife and

insurance policies naming her as the beneficiary. Finney testified that none of the leads he followed had any

connection to Swann.

¶7. The confidential informant first contacted Sheriff Joe Bryant of Union County. The informant only

offered to provide the information regarding Seal's disappearance if the sheriff promised to protect his

identity. The informant accompanied Sheriff Bryant to the location where he believed that Swann and Holly

Jo Poe were present when the body of Seal was thrown into the well. Sheriff Bryant testified that he was

satisfied that the confidential informant was not involved in the crime based upon the conversation that he

had with the informant.

¶8. Lieutenant Michael Berthay, with the Mississippi Highway Patrol Criminal Investigation Bureau, testified

that he met with Poe and Swann to question them about the homicide. Poe initially denied any knowledge

of the matter. Poe was given a polygraph test after her initial statement and a second statement, both of

which showed deceptive responses. On her third statement, Poe revealed all the details that led to the

indictment of Swann. She admitted that she had given several prior inconsistent statements to law
enforcement, but stated that her last version was the truth.

¶9. Swann, at the time of Seal's disappearance in 1986, was a twenty-three-year-old resident of New

Albany in Union County. Swann had lived on "the Old Swann property" until he was nine years of age, and

his grandparents had moved away from there in 1982. At the time of Swann's trial in 1999 for Seal's

murder, Swann was thirty-five years of age and the father of four children, one of whom was born to Poe,

the State's key witness.

¶10. According to Poe, Seal was seated inside his automobile when Swann stopped under the pretense of

rendering assistance to Seal. Swann, in the presence of Poe, took Seal to Swann's old home place in

Itawamba County where, after enticing Seal out of the car, Swann struck Seal twice in the head with a

nunchaku (commonly called "nun-chucks") and slit his throat with a knife. After a nonproductive search of

Seal's clothing for money, Swann dropped Seal's body into a well.

¶11. Poe testified as follows:

And he pushed me back and he grabbed Mr. Seal[] around the arms and went to pulling him towards

the well. And he got him to the well, and one of Mr. Seal's shoes fell off while Ronnie was dragging

him to the well. And he got him to the well, and he throwed him over in it, and he hollered, told me to

bring him the shoe. And I wouldn't do it [to] start with. And he told me I'd better or else the same

thing would happen to me. (Witness crying.) And so I reached and got the shoe and brought it to

Ronnie and he throwed it in the well with Mr. Seal[]. (Witness Crying).

¶12. According to the testimony of Poe, Swann planned and intended to rob Seal. After taking Seal to "the

old Swann property," he "ripped" Seal's throat with the knife and stuffed his body headfirst into the

abandoned well. Swann told Poe "to make sure I always kept my mouth shut and not forget that, that I'd

better keep my mouth shut."

¶13. Several hours after the killing, Swann and Poe drove to Florida. Swann testified he remembered going

to Florida with Poe in February of 1986, but could not remember the day or the date. According to Swann,

"Holly had some bad check, and she figured she'd go to prison for it, so we decided to go to Florida."

Swann testified he had $600 from "my income tax check through William Gates' pawn shop, quick cash

thing."

¶14. Swann denied that he and Poe stopped at any time to help an individual in a stalled vehicle. He denied

ever seeing Seal. Swann stated that he did not rob anyone and did not commit a murder.

¶15. At trial, Poe identified the knife used by Swann to cut Seal's throat. Swann's ex-wife, Mary Swann,

testified that she purchased the knife for Swann in 1993, several years after the murder of Seal. Swann also

testified that the knife found in his home by law enforcement was purchased for him by his ex-wife, seven

years after Seal's mysterious disappearance.

¶16. Swann renewed a motion to compel disclosure of the confidential informant. He also moved to dismiss

the charge on the same ground "based on the lack of the ability to confront and cross-examine what we feel

like is essentially the main witness against Mr. Ronnie Swann." Motions by Swann for directed verdict,

disclosure, and to dismiss the charges were overruled. At the close of the evidence, Swann's renewed

motion for a directed verdict of acquittal was denied. His request for peremptory instruction was also

denied. The jury found Swann guilty of capital murder. Swann's motion for JNOV or, in the alternative, a
new trial, was also denied.

ANALYSIS

I. DID THE TRIAL JUDGE ABUSE HIS DISCRETION IN DENYING SWANN'S

MOTION FOR A CHANGE OF VENUE?

¶17. Swann argues that because of the publicity and media coverage, the judge should have granted his

request for a change of venue. Swann's motion for a change of venue was supported by affidavits from

three citizens who stated that Swann could not receive a fair and impartial trial in Itawamba County. Swann

also called Mary Bishop, a convenience store manager in Itawamba County, to testify that she came in

contact with many people who had heard about the case. Area newspapers and several videotapes

containing news reports regarding the case were introduced into evidence at the trial. Some of the reports

indicated that Swann had prior felony charges. Swann successfully created a presumption that it was

impossible for a fair trial to be had in the existing venue.

¶18. The State attempted to rebut that presumption through a pre-trial hearing conducted on September 1,

1998. Five witnesses, Itawamba County Supervisors from different districts, testified that Swann could

receive a fair trial in Itawamba County. After hearing the arguments of both parties and reviewing the news

articles and videotapes, the circuit judge took the matter under advisement. The trial began about six months

later, on March 15, 1999.

¶19. The State can rebut the presumption that the defendant could not receive a fair trial by proving from

voir dire that the trial court impaneled an impartial jury. Holland v. State, 705 So. 2d 307, 336 (Miss.

1997). During voir dire, the trial judge questioned the eighty-eight prospective jurors concerning whether

they heard anything about this case in the news or from any other source. Swann's trial attorney also had the

opportunity to inquire about the pre-trial publicity during voir dire. At the close of voir dire, the circuit judge

again asked the prospective jurors whether anyone knew about the facts of this case from any source of

information. The circuit judge was satisfied that Swann could receive a fair trial; therefore, he denied the

motion for change of venue.

¶20. Motions for a change of venue are left to the trial court's sound discretion. Davis v. State, 767 So. 2d

986, 993 (Miss. 2000); Hickson v. State, 707 So. 2d 536, 542 (Miss. 1997). Based upon a review of

the record, this Court is also satisfied that Swann could and did receive a fair trial. This case passes the

two-part test found in Holland which looks at the extent of media coverage and its inflammatory nature, as

well as the effect upon the prospective jurors. Holland, 705 So. 2d at 336-37. Those jurors who stated

that their knowledge would affect the verdict were removed, and those jurors who remained stated that

their knowledge would not prevent them from serving impartially. Id.

¶21. Swann does not argue that the media coverage and publicity was inflammatory, and based upon a

review of the record, the news coverage appears objective. As for the extent of the coverage, the case

spanned a period of twelve years and received a fair amount of attention due to the time that passed before

Swann was charged with the crime. However, over six months of silence passed between the news

coverage and the trial. Furthermore, the publicity "was not widespread and did not reach massive or

epidemic proportions." Box v. State, 610 So. 2d 1148, 1153 (Miss. 1992). Based upon a review of the

record, Swann received a fair and impartial jury. Therefore, this Court finds that the circuit judge did not

abuse his discretion in denying the motion for a change of venue.
II. DID THE TRIAL JUDGE ERR IN REFUSING TO GRANT JURY INSTRUCTION D11?

¶22. Swann's proposed jury instruction D-11 provided the following:

You have heard evidence that Holly Joe [sic] Poe made statements prior to trial that may be

inconsistent with her testimony at trial. If you believe that inconsistent statements were made, you may

consider the inconsistencies in evaluating the believability of her testimony.

The State objected to this instruction, and the circuit judge refused the instruction without an explanation.

This Court has held that it is not an improper comment on the testimony of a witness to instruct the jury

regarding the proper effect to give to prior inconsistent statements by witnesses testifying at trial. Ferrill v.

State, 643 So. 2d 501, 505 (Miss. 1994); McGee v. State, 608 So. 2d 1129, 1135 (Miss. 1992).

¶23. The refusal of proposed Instruction D-11 would be error if no other instructions regarding the

believability of Poe's testimony were provided to the jury. However, the jury did hear other instructions

regarding the credibility of the witnesses and the consideration of conflicts in their testimony. "A [trial] court

must view jury instructions as a whole, and not individually, in order to decide whether the jury was

adequately instructed." Chatman v. State, 761 So. 2d 851, 855 (Miss. 2000); Bell v. State, 725 So. 2d

836, 848-49 (Miss. 1998). Furthermore, a trial judge is not under an obligation to grant redundant

instructions. Davis v. State, 568 So. 2d 277, 280-81 (Miss. 1990). Instruction 13 (D-4) provided the

following:

As the sole and exclusive judges of the facts, it is for you, and you alone, to determine the credibility

or believability of the evidence. It is for you to determine what witness or witnesses, or other forms of

evidence, you will believe, either in whole or in part. If upon a consideration of the evidence in this

case, you find that there is a conflict in the testimony of the witnesses, it is your duty to settle this

conflict. In doing so, you should consider all the factors relevant to determining credibility.

In passing upon credibility, you may consider all the facts and circumstances of the case, the witness'

manner of testifying and demeanor on the stand, their intelligence, their interest or lack of interest, their

means and opportunity for knowing the facts to which they testify, the nature of the facts to which

they testify and the probability or improbability of their testimony. You may also consider their

personal credibility in so far as it may legitimately appear from the trial of this case.

In addition, Instruction C-1 provided that the jury should "consider . . . the testimony and statements of the

witnesses and the exhibits offered and received."

¶24. Furthermore, as the State points out, Swann had the opportunity to cross-examine Poe regarding her

prior inconsistent statements and, as evidenced by the record, Swann's attorney did so. Swann also argued

in closing that Poe was untrustworthy, had previous forgery convictions, and had given several inconsistent

statements. Given the jury instructions, the cross-examination of Poe, and Swann's closing argument, it is

reasonable to believe that the jury did take Poe's prior inconsistent statements into account. Therefore, this

Court finds that the circuit judge committed no error in refusing proposed Instruction D-11.

III. WAS THE JURY VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE

EVIDENCE?
¶25. When determining whether a jury verdict is against the overwhelming weight of the evidence, all

evidence supporting the verdict must be accepted as true, and this Court will reverse only when it is

convinced that the trial judge abused his discretion in failing to grant a new trial. Herring v. State, 691 So.

2d 948, 957 (Miss. 1997). This Court should not reverse a guilty verdict unless failure to do so would

sanction an unconscionable injustice. Hilliard v. State, 749 So. 2d 1015, 1016 (Miss. 1999).

¶26. Swann argues that, because Poe's testimony is the only evidence linking Swann to the crime for which

he was charged, the verdict was against the overwhelming weight of the evidence. He also argues that the

only corroboration of Poe's testimony is the knife that was allegedly used to murder Seal. Swann's primary

complaint is that the jury could not properly weigh Poe's testimony with regard to her credibility and prior

inconsistent statements because they were not properly instructed concerning her testimony.

¶27. As stated in the previous issue, the jury instructions as a whole adequately informed the jury on

weighing the testimony of witnesses. Additionally, the testimony of a single uncorroborated witness can

sustain a conviction even though there may be more than one witness testifying to the contrary. Williams v.

State, 512 So. 2d 666, 670 (Miss. 1987). Even if Poe was charged as an accomplice in this case, which

she was not, her testimony would still support a conviction of Swann. Johns v. State, 592 So. 2d 86, 88

(Miss. 1991).

¶28. Without more, this Court could find that the weight of the evidence was sufficient to uphold a

conviction of Swann. Nevertheless, other details in Poe's testimony put this Court at ease in determining that

the weight of the evidence was sufficient. The following details and logical deductions help to corroborate

Poe's testimony: (1) Swann admitted taking Poe by the old Swann home before, but stated that they just

drove by it and that you could not see the well from the road. (2) Other than the one time that Swann

admitted taking Poe by his old homestead, there is no explanation of how Poe knew about the well and of

its location. (3) Poe's description of Seal at the location of Seal's vehicle was accurate. (4) Poe's

observation that one of Seal's shoes came off while Swann was dragging his body to the well was also

suggestive evidence. This is because only one shoe was recovered by the dive team. However, Poe did

testify that the missing shoe was also thrown into the well, but this was after Seal was dumped in the well

only wearing one shoe.

¶29. This Court finds that the weight of the evidence adequately supported the jury's verdict.

IV. DID THE TRIAL COURT ERR IN DENYING SWANN'S MOTION TO QUASH THE

INDICTMENT?

¶30. Swann argues that the indictment failed to state the elements of armed robbery and should have been

quashed as per Rule 7.06 of the Uniform Rules of Circuit and County Court Practice, regarding the

sufficiency of the indictment. Under Rule 7.06, the defendant should be fully notified of the nature and cause

of the accusation. URCCC 7.06. However, formal and technical words are not necessary if the offense can

be substantially described without them. Id.

¶31. Swann's argument lacks merit because the indictment charges Swann with capital murder while in the

commission of the crime of armed robbery. Stating the elements of armed robbery in the indictment is not

necessary. Turner v. State, 732 So. 2d 937, 948 (Miss. 1999). This Court's decision in Turner is

dispositive of this issue. An identical indictment was found to be adequate in Turner. See also Gray v.

State, 728 So. 2d 36, 70-71 (Miss. 1998).
V. DID THE TRIAL COURT ERR IN OVERRULING SWANN'S MOTION TO

DISCLOSE THE IDENTITY OF THE INFORMANT?

¶32. Swann contends that, due to the nature of the case (murder), and the detailed account of the facts

provided by the informant, including knowledge of the location of the well, the informant's identity should

have been revealed to allow the defense an opportunity to investigate his knowledge.

Disclosure of an informant's identity shall not be required unless the confidential informant is to be

produced at a hearing or trial or a failure to disclose his/her identity will infringe the constitutional rights

of the accused or unless the informant was or depicts himself/herself as an eyewitness to the event or

events constituting the charge against the defendant.

URCCC 9.04(B)(2).

¶33. This Court has ruled on this issue, finding that if the informant neither participated in the criminal

activity nor witnessed the crime, then his name should not be disclosed. Ray v. State, 503 So. 2d 222,

224 (Miss. 1986). According to Sheriff Bryant, the informant in this case was not involved in the crime, and

nothing in the record suggests that the informant was a participant or eyewitness to the crime. Swann sets

forth no compelling arguments or reasons why the informant's identity should be revealed. Furthermore,

there are important public policy considerations in protecting the identity of a confidential informant who

does not participate or witness the actual crime. See United States v. Moralez, 917 F.2d 18, 19 (10th

Cir. 1990). This issue lacks merit; and therefore, this Court finds no error.

VI. DID THE TRIAL COURT ERR BY INSTRUCTING THE JURY ON THE

SENTENCING OPTION OF LIFE WITHOUT PAROLE?

¶34. Swann contends that the trial judge erred in instructing the jury that it could return a verdict of life

imprisonment without parole because, when Swann committed the crime in 1986, life without parole was

not a sentencing option under Miss. Code Ann. § 97-3-21 (1994). The only two sentencing options at that

time were death and life imprisonment.

¶35. This same issue has been ruled on in previous cases before this Court. Conley v. State, 790 So.2d

773, 803-04 (Miss. 2001). Watts v. State, 733 So. 2d 214, 233 (Miss. 1999); West v. State, 725 So.

2d 872, 877 (Miss. 1998). Those cases involved matters where crimes were committed before the statute

allowing life imprisonment without parole was enacted. Id. The trials were not held until after the effective

date of the statute. Id. This Court held that imposing the new sentencing option of life without parole does

not violate the prohibition against ex post facto laws. Id. Therefore, this issue is also without merit.

CONCLUSION

¶36. This Court finds no reversible error in the record. All of the issues raised by Swann are without merit.

Therefore, the judgment of conviction and sentence of life imprisonment without parole are affirmed.

¶37. CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IMPRISONMENT

WITHOUT ELIGIBILITY FOR PAROLE, IN THE CUSTODY OF THE MISSISSIPPI

DEPARTMENT OF CORRECTIONS, AFFIRMED.

PITTMAN, C.J., McRAE AND SMITH, P.JJ., WALLER, COBB, EASLEY AND
CARLSON, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY.