HCSO Investigator Greg Musson was the only witness to testify at the preliminary hearing for Brian Swan this morning.
On April 8, 2016, Mr. Musson said he received a call at home, "12 minutes after midnight. I was informed there had been a shooting incident." He called HCSO Detective Todd Fulton to respond at the alleged crime scene, as a second investigator.
The property where the alleged shooting ocurred is on Aspen Way, at the top of the Hill, near the Tip Top Club. When Investigator Musson got to that location, there were other officers present who had initially responded to the call and there were also civilian witnesses.
Investigator Musson was first directed to a female witness, Kirsten Kierney, who he learned later was the mother of 4 year old girl at the house. The child's father is the defendant, He was also directed to another female witness, Charlene Hughes, who was the great grandmother and was holding the child.. The name of the child is not being used in this post due to the age.
After being briefed by Sgt. Sam Williams and Deputy Hill, Investigator Musson took a full statement from Hughes. She said she was asleep and "at approximately 11:30 awoke to a large sound. She thought it was the dogs making a ruckus."
Hughes told Investigator Musson that she heard Swan come down with the child and with a long gun. He told her to call 911 "because he had shot Bob." She called 911.
Investigator Musson then spoke with Kierney, who was "somewhat girlfriend of Swan and also of Robert Babb."
Kierney was not home at the time of the alleged shooting. She saw law enforcement lights on top of the hill and went up to the house. She had been with the alleged victim, Babb earlier that evening.
Kierney told Investigator Musson she was not sure what had happened at the time of the shooting; instead she told him about what happened earlier that evening.
Investigator Musson interviewed Robert Babb aka Robert Waters on April 14 at the ICU Unit at St. Joseph's hospital.
"Mr. Babb said he and Ms. Kierney were in his vehicle in Eureka and they had gotten into an argument. Whether she wanted to be with Swan or Babb. She denied being with Swan. Babb did not believe her. She told Babb, 'why don't you go up to the house' and talk to Swan. Babb said the front door was unlocked. He did not knock and walked into the house. He stepped over a baby gate onto a landing.He saw Swan dozing off on a couch. He told Swan we need to talk about the relationship. Swan responded he did not want to talk and Swan told him to get out of the house. Babb kept saying he wanted to talk. Then Swan went into another room and came back with a shotgun. Swan told him again, to get out."
Investigator Musson said that "Babb told him, 'It was my fault; I told him to shot me and he did."
Deputy Hill told Investigator Musson that he saw "a baseball sized hole and liver hanging out." Investigator Musson said, "there was a lot of blood on the scene where the shooting took place." He said he was "surprised the victim survived."
A Charles Daly brand 12 gauge pump action shotgun was recovered from the alleged crime scene.
On April 9, Investigator Musson interviewed the defendant. "Mr. Swan and his 4 year old daughter were in the living room. She wanted to play on the laptop. Around 11:30, both began to doze off."
The child heard something and said woke up and said "hello. Usually, she would say hello and the name of a person. That made Mr. Swan think it was a stranger."
"Mr. Swan saw Babb standing by the baby gate. He retrieved a knife near the couch and told Babb, 'Get the hell out of here.' Babb said, 'We need to talk.' Mr. Swan said that he responded, 'At this time of the night, we have nothing to talk about.' Babb said something to the effect of 'What are you going to do? Stab me?' Mr. Swan felt Babb was not taking him seriously so he retrieved the gun from a cabinet and told Babb to leave. Mr. Swan said Babb told him, 'You know I am crazy; you pointing a gun at me? I'm going to do something. ' That's when Mr. Swan shot Babb; he was standing about five feet away and he shot him in the chest."
Babb fell down, Swan said he took his daughter down and told Hughes to call the "cops. I shot Bob; he's an intruder."
Investigator Musson said that Swan told him that Babb "was not taking him seriously. He felt belittled, at least 3 or 4 times." After the last time, he asked Babb to leave, Swan told Investigator Musson, "he was a little scared."
Swan did not tell Investigator Musson that Babb had a weapon. He told Investigator Musson that two weeks prior to this incident, a car had been vandalized and he believed Babb did it. Swan said he told Babb "unless you have money, we have nothing to talk about."
Investigator Musson did not get medical records but based on his conversation with Babb and his mother, it was Investigator Musson's understanding that "part of the kidney and liver were removed subsequent to the surgery."
During cross examination, Conflict Counsel's Mr. David Lee, who represents Swan, asked Investigator Musson if Swan had known Babb "years prior." Investigator Musson said Swan did.
Swan told Investigator Musson that Babb had "a history of domestic violence and threats." He also mentioned an alleged domestic violence incident against Kierney. This was confirmed by Kierney and she told Investigator Musson that "her eardrums had been broken."
Kierney also told Musson that Babb had threatened to burn the house down and take her to Devil's playground and that he "would allow his friends to do bad things to her, rape type things."
Babbs had mentioned to Kierney that he had killed people in the past. This is something Swan was aware of. Kierney
Originally Babb could not "remember a lot", said Investigator Musson. While he was being questioned, Babb told Investigator Musson, "you are starting to piss me off." Investigator Musson responded that he was not clairvoyant and that he was asking Babb to tell him about the incident.
Babb admitted he was asked to leave several times by Swan; Investigator Musson said that Babb told him he advanced at Swan and that is when Swan pulled the trigger. A knife was recovered in the living room.
Hughes told Investigator Musson that Swan was living in the house with her permission. Both Swan and Hughes said the front door was unlocked but a side door may have been unlocked, they could not remember. Kierney said she did not give Babb permission to enter the house; she may have given Babb Swan's cellphone.
Judge Timothy Cissna said that the burden of proof at a preliminary hearing was not the same as it was at a jury trial. He said he looked at CALCRIM jury instruction 3475, right to object to trespassing. Judge Cissn read part of that instruction and defined reasonable force as it is in that instruction. He also looked at 3476, right to personal property as well as 505 self defense.
There was discussion that with Babb having no weapon, was the amount of force used by Swan reasonable. Both attorneys gave their input.
Judge Cissna's final ruling was that there was "sufficient evidence to hold" Swan to the charges at the preliminary hearing.
