By Betsy Finklea
The trial of Robert Lee Nelson, Jr., who was charged in the December 2009 robberies and deaths of Walter and Mary Swaner, ended on Friday evening with the jury deadlocked on the two murder charges, but finding Nelson guilty of burglary first degree, possession of a weapon during the commission of a violent crime, and two armed robbery charges.
“We’re pleased with the convictions, but we’re obviously disappointed the jury couldn’t agree on the murder charge,” said Assistant Solicitor Shipp Daniel. “We felt that the evidence, along with applicable law, was more than sufficient to return a guilty verdict on all charges.”
Daniel said they will be meeting in the next week to decide which route they will take on the pending murder charges.
During sentencing, Assistant Solicitor Daniel said that this was the most significant and emotional case that he had tried in his short time as assistant solicitor. He said the family had been as dignified, as pleasant, as understanding, and as graceful as anyone could expect them to be. He also gave a tip of the hat to the defense attorneys, Casey Secor and Bill McGuire, and said that it had been a pleasure to work with them.
Daniel said the jury had decided that Nelson was involved in the burglary and armed robberies that ultimately led to the deaths of these two individuals—an 80 and 84 year old couple who had done nothing but try to help Nelson. He said this family now has to live without the enjoyment of their family members. He asked the judge to impose the maximum penalty as allowed on burglary first degree which is life. Daniel said he asked that the judge impose the life sentence because of what Nelson did and for what this family now lives with forever. Deputy Solicitor Kernard Redmond also made some brief remarks.
Deborah Ross, the Swaners’ niece, made a statement to the court.
She said the whole week she had sat and relived the horror of the loss of her aunt and uncle. She said it has left a void in their family. She said she felt a life sentence was appropriate. She said they won’t be able to have time with their family members again. Ross spoke about what her aunt and uncle suffered through. She said that they were in their home doing what they normally do and that someone came in and took that away. She said this is a great loss to their family.
Dorothy Fisher, who is Mary Swaner’s sister, said she felt that Nelson should get life in prison. She said her sister and brother-in-law didn’t deserve that he did to them. She said her sister was her best friend and she came here at least three times a year to stay. She said he’s still living a life. He’s got a mother and father who can see him if they want. She said she would never see her sister and brother-in-law again and never be able to talk to them again. She asked why he should be free. She said he might do something to someone else. Fisher said she thought that he should be put away for the rest of his life.
Defense Attorney Bill McGuire said in the Department of Corrections, the average black male dies at the age of 50 years old. He said Nelson, who is now 22, wanted to take responsibility for this and didn’t want a trial. He said he had met with Nelson on several occasions and there was no doubt that he had a great deal of remorse. He said even in the recorded statement when they asked him if he had anything he wanted to add, he said he was sorry. McGuire said he wanted the court to take into account Nelson’s age, his lack of a significant record, and his mental condition. He asked for 30 years, which is the maximum for armed robbery, and said this would place Nelson at an age that he may not even see. He asked to run the burglary charge concurrently.
Defense Attorney Casey Secor thanked the Solicitor’s Office, and he also thanked law enforcement for their kindness to his client. He said he had seen emotion and tears in Nelson’s eyes when talking about the Swaners and a level of remorse that he had not seen in some of his other clients.
Judge Steven John said that all of the attorneys had been a credit to the subset of lawyers who are trial lawyers.
Judge John declared a mistrial on the two charges of murder. Judge John said he took into consideration the facts and evidence, the circumstances of the crime, the intellectual disability shown and demonstrated through the evidence, and all that was said on Nelson’s behalf and on behalf of the state. He then gave his sentence. Nelson was sentenced to 47 years for the burglary first degree charge, 30 years each for the two armed robbery charges with credit for time served to run concurrently, and five years consecutive for possession of a weapon during the commission of a violent crime. The total years of service is 52 years.
Other Testimony/Closing Arguments/End of Trial
Wednesday’s testimony opened with a 13-year-old Hamer girl, who said she attended church with Nelson. She said Nelson showed her a knife about 4-5 o’clock in the afternoon and said he had it for his protection. She said he kept it in his sock. She said later she heard two people had died. The girl said she told Betty Malloy that Nelson had a knife.
Captain Cliff Arnette of the Dillon County Sheriff’s Office was the next to testify. On January 12, 2010, he took a DNA sample from Nelson. He said Nelson understood the consent form in his opinion. During cross-examination by Secor, Arnette was asked whether he took DNA samples from other individuals that he named. Arnette said he did not take any samples from those individuals.
SLED Agent Jeffrey Crooks took the stand next. He was the case agent responsible for the scene. He was qualified as an expert in crime scene analysis and latent fingerprint analysis.
Crooks said there was evidence that a struggle took place. He said there was a great deal of glass, and he did analysis on the glass pieces, which were a thick heavy leaded glass. Crooks said it appeared that someone had gone through the residence and that he observed blood throughout the house. He took 14 swabs of blood from throughout the residence. He said the main activity appeared to have taken place in the living room and master bedroom, and there was some activity in the kitchen.
In the bedroom, there was a man’s leather-type wallet, and he observed what he thought was blood. He also took a cutting from an inside curtain on the door that led to the garage that appeared to have blood on it.
There was a small dog found inside the residence, who was obviously scared, Crooks said. The dog was turned over to a family member.
Crooks said he went back that night and ran the fingerprints. He said they didn’t have any fingerprints to compare them with at that time.
Crooks said at one point during the case, he obtained major case prints from both victims and was also given other names during the investigation including Robert Lee Nelson. He said he found Nelson’s prints on the glass, the business card in the wallet, and on the wallet itself. He went through a list of names that were read to him in court and said no fingerprints came back to any of those people.
Approximately 60 items from the scene were collected, but not all were processed including a knife handle found in the living room.
Lindsey Thompson, who was working at SLED as a DNA analyst at the time of this case, worked on items sent in for DNA analysis. She was qualified as an expert in DNA analysis and serology. Of the items she tested, four items showed that Nelson’s DNA was present on them.
After Thompson’s testimony, the state rested its case.
The defense opened its case with the testimony of Tony Cummings, a booking officer at the Dillon County Detention Center. He identified some Dillon County booking reports showing where four people, including Nelson, were each arrested on two counts of murder on January 5, 2010.
Deputy Wayne Kirby of the Dillon County Sheriff’s Office was the next to testify. He identified a search warrant he did related to phone records in the case.
Dr. Ginger Calloway, a forensic psychologist who was qualified as an expect in forensic psychology, developmental disabilities, and mental retardation, took the stand next.
She said that Nelson meets the criteria of mental retardation. She said it was her opinion that he did not understand the Miranda warnings he was given well. In cross-examination when questioned, Calloway said that Nelson could read at a fourth grade level and wrote his own statement.
On Thursday, the defendant reviewed his right to testify or not testify with the judge. The defendant chose not to testify. The defense rested its case.
In his closing arguments, Secor said that Nelson was under duress when the burglary was committed and during the armed robbery. He said Nelson did not possess a weapon during the commission of a violent crime because he didn’t commit a violent crime, and he did not commit murder. He said the jury would have to determine whether Nelson knowingly, voluntarily and intelligently gave up his right to remain silent. He urged the jury to listen again to see if Nelson understood what was going on and if his rights were explained in a way he could understand. Secor said if the jury did not feel that Nelson understood his rights, they could disregard that statement or give it any weight they wanted. He said a non-bloody palm print of Nelson’s was found on the bowl that hit Mary and that if he had stabbed Walter there would have been blood on his hands. He said Nelson would have left fingerprints on the bowl if he had picked it up to hit Mary. He suggested
that Nelson may have left a non-bloody palm print on a piece of glass on the floor when he knelt down and placed a towel on Walter’s face after he came back in with one of the other boys and saw what happened. He said this may also be when Nelson got the small cut on his hand and left four small spots of DNA in the house. Secor also emphasized that none of the other boys that Nelson initially said were with him were asked for a DNA sample and that unidentified DNA was found under Mary’s fingernails. He also said that the knife handle was not tested for DNA or fingerprints. Secor went on to point out other things that he felt proved his client’s case.
Secor said Robert and Mary Swaner had been kind to Nelson and the state wants the jury to believe that he murdered them for no reason. He talked about Nelson being scared and said that he had told a lie when he made the second statement that he thought he had to tell. He told the jury they had the opportunity to protect Robert Nelson, to protect him from the other boys, to protect him from the police who had chosen one statement over the other and to protect him from his simple mind and from a horrible mistake he had made.
In his closing arguments, Redmond outlined the evidence that the state had brought to show that the January 6th audio statement given by Nelson was the truth. He said the case was a case of quality vs. quantity. He said Nelson’s fingerprint was on the glass vase he used to strike Mary Swaner. He said there may not have been blood on the glass because he used the other hand.
Redmond explained that the hand of one is the hand of all. He said if the jury chose to believe that Nelson did not act alone then he was just as guilty. Redmond said that the burglary first degree occurred when Nelson snatched to door and forced his way in. The armed robbery occurred when he armed himself to commit a robbery and explained that a deadly weapon can be a knife, it does not always have to be a gun.
Redmond spoke about Nelson’s mental condition and said diminished capacity is not a defense if he knows the difference from right and wrong.
He said Nelson was given his Miranda rights on December 22, January 5, and January 6 and indicated that he understood them.
Redmond urged the jury to use their common sense when deciding the case.
After the judge’s charge, the jury began deliberating. Deliberations ended earlier than expected on Thursday due to an air conditioning problem in the courthouse.
On Friday, deliberations began again at 9 a.m. The jury asked to hear the taped statement in which Nelson said he acted alone a second time.
In the afternoon, the jury sent out a note that said they had resolved all charges but one. The judge gave the jury the Allen charge, which basically asks them to keep an open mind and give it another try.
At 7:52 p.m., the jury sent out a note that said they had reached a verdict on some of the charges, but were deadlocked on one. The judge brought out the jury and questioned the foreman as to whether he thought further deliberations would resolve the issue. He said no.
The jury deadlocked on the two murder charges, but found Nelson guilty on the two armed robbery charges, the burglary first degree charge and the possession of a weapon during the commission of a violent crime.
The judge thanked the jury for their service and for their hard work and effort on the matter.
Part one of the trial coverage was in the Thursday, July 26th issue of The Dillon Herald.