# Swan v. Commonwealth

> Kentucky Supreme Court · August 23, 2012 · 384 S.W.3d 77

URL: https://www.frixlaw.com/law-library/cases/5111647

## Case

- **Full name:** Marcus D. SWAN v. COMMONWEALTH of Kentucky, Appellee and D'Andre Owens v. Commonwealth of Kentucky
- **Court:** Kentucky Supreme Court
- **Decided:** August 23, 2012
- **Citations:** 384 S.W.3d 77; 2012 Ky. LEXIS 111; 2012 WL 3631412
- **Precedential status:** Published
- **Opinion:** Dissent by Cunningham
- **Judges:** Abramson, Cunningham, Minton, Noble, Schroder, Scott, Venters
- **Cited by:** 71 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5111647

## How later opinions describe it (automated extraction)

- holding that there was insufficient evidence of wanton endangerment where evidence established that the victim was in a back bedroom, behind a closed door, and hiding under a bed when three shots were fired in the front living room
- holding that a defendant’s failure to re-raise his Faretta motion to a new judge constituted abandonment of his request to proceed pro se or as co-counsel
- holding that a defendant had abandoned his initial request to self-represent when he failed to raise the issue before the trial judge after the original judge had passed on the issue until trial

## Opinion text

CUNNINGHAM, J.,
Concurring in Result:
I applaud the excellent work in the majority opinion.
I respectfully disagree, however, that the prosecutor’s closing argument at sentencing was improper. The Commonwealth’s Attorney was seeking the maximum penalty for these terribly violent and reprehensible crimes. The penalty was capped under the statute to 70 years. The jury could have given less. As an argument to obtain the maximum sentence of 70 years, the prosecutor simply pointed out that, if the penalty was not capped, the defendants would be subject to a much greater sentence — 165 years, in fact. If we weren’t prevented,” the prosecutor truthfully pronounced, “they could be looking at that.”
It is clear to me that in essence the Commonwealth is trying to make clear that the law has already given the defendants the only break they deserve. Therefore, the state’s attorney insists, be sure and give them the maximum.
Quite frankly, I think it is a very good point in a sentencing argument. And I see nothing wrong with the Commonwealth’s Attorney wishing that the jury could give them more in an attempt to persuade the jury to give the defendants the maximum allowed by law.
To my way of thinking, it is simply a good argument for a severe sentence in a case which deserves a severe sentence. I strongly disagree with the majority on this point. However, I readily concur to the rest of a very fine opinion.
SCOTT, J., joins.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5111647. Public record. Not legal advice.