JARRATT, Va. - Bobby Wayne Swisher found Christianity last summer. On Tuesday night, he was executed at Greensville Correctional Center, telling witnesses: "I hope you all can find the same peace in Jesus Christ as I have."

Swisher, 27, was convicted of abducting, raping and slitting the throat of Shenandoah Valley florist Dawn McNees Snyder in 1997, then dumping her in the South River. The 22-year-old mother managed to crawl back onto land before dying in a riverside field. Her body was found 16 days later.

The execution came less than a week after the Virginia Supreme Court refused to hear the final appeal by Swisher's attorneys. They had filed the motions during a three-week reprieve granted by Gov. Mark R. Warner on July 1, Swisher's original execution date. Warner refused to intervene a second time. Snyder's mother said previously that she planned to witness the execution, but Department of Corrections officials would not confirm that she had attended.

Following the execution, Swisher's lawyers condemned the punishment and Warner's decision not to intervene. Defense attorney Anthony F. King called the governor's inaction "a stunning act of political cowardice." The lawyers described Swisher as a gentle spirit who "did a horrible, horrible thing. There's no getting away from that," King said, "... But he was not irredeemable." They argued that Swisher was entitled to a new sentencing hearing because the jury that recommended the death penalty was not told that life in prison without the possibility of parole was also an option. The sentencing form used by that jury was later ruled invalid by the Virginia Supreme Court in another case. The court rejected the appeal Thursday, stating that the deadline to make such an argument had passed. The issue had not been raised during Swisher's trial.

In their last clemency request to the governor, on Friday, King and defense attorney Steven D. Rosenfield wrote that "the decision as to whether Mr. Swisher will be illegally executed is yours and yours alone." Death penalty opponents, including Sister Helen Prejean, author of "Dead Man Walking," also urged Warner to stop the execution.

After he was led into the execution chamber and strapped to a gurney, Swisher raised his head and appeared to smile as his spiritual adviser spoke to him in his ear. Swisher was pronounced dead at 9:05 p.m. after a lethal injection.

Swisher, a high school dropout and former construction worker, confided to friends that he killed Snyder. He later confessed to police, and DNA testing linked him to the crime. Snyder's body was found 16 days after the slaying in a field along the river. Swisher's trial lawyers did not dispute what happened but argued that Swisher was too high on drugs and alcohol to know what he was doing.

Washington Post

"Virginia Executes Man for 1997 Rape, Slaying; Warner Declines to Act," by Maria Glod. (July 23, 2003)

Bobby Wayne Swisher was executed by injection in Virginia's death chamber last night, six years after he kidnapped and raped a young mother before slashing her throat and tossing her, still alive, into the frigid waters of the South River. Swisher, a 27-year-old high school dropout, was pronounced dead at 9:05 p.m. at the Greensville Correctional Center in Jarratt, as members of his victim's family looked on, according to Virginia Department of Corrections spokesman Larry Traylor. "I hope you can all find the same peace in Jesus Christ as I have," Swisher said in his final statement, according to Traylor.

Swisher's execution had been scheduled for July 1, but Gov. Mark R. Warner (D) delayed it by three weeks to give defense attorneys time to argue before the Virginia Supreme Court that the jury used a verdict form that the court previously found to be defective in a separate case. As defense attorneys and legal experts predicted, the court said it had no authority to consider the claim because Swisher already had exhausted his appeals. Warner had said he would not intervene again if the court did not resolve the issue, and he declined to get involved yesterday.

Defense attorneys Anthony F. King and Steven D. Rosenfield said in a statement last night that Warner "abdicated his constitutional and moral responsibility to do the right thing" in refusing to halt the execution. "Instead, he made a craven and cowardly political calculation that killing Bobby Swisher would advance his political career." Warner declined to comment on that allegation, according to his spokeswoman, Ellen Qualls.

The defense contends that the jurors who sentenced Swisher to death may not have known that they could have chosen a sentence of life in prison. A spokesman for Virginia Attorney General Jerry W. Kilgore (R) said that the state's verdict form has been upheld by the U.S. Supreme Court and that Swisher's crimes were so vile that a death sentence was appropriate.

"The facts of this case are almost too horrible to comprehend," said Tim Murtaugh, Kilgore's spokesman. According to court documents, Swisher was high on cocaine the evening of Feb. 5, 1997, when he walked into an Augusta County florist shop where 22-year-old Dawn McNees Snyder was working late to prepare for the Valentine's Day rush. Swisher, then 20, forced Snyder to walk to a field near the South River where he raped her and cut her face and throat. He threw her into the river and later told a friend that he walked along the riverbank asking, "Are you dead yet?"

In a recent telephone interview from a Virginia prison, Swisher said that he had become a born-again Christian and that he had been spending his days reading the Bible. When asked whether he thought his life should be spared, he said: "Some days I do. Some days I don't." Swisher refused to talk about the rape and murder. "I remember enough to know I don't want to remember no more," he said. "I've put up some walls."

Sandi McNees, Snyder's mother, who witnessed the execution, said Monday she thinks of her daughter's suffering each day. McNees said Snyder was a devoted mother who volunteered with the rescue squad and had recently opened the florist shop with a friend. "She packed a lot of life into her short years," McNees said.

Swisher's execution was the second in Virginia this year. In April, Earl Conrad Bramblett, who killed a family of four in southern Virginia in 1994, died in the electric chair.

Pilot Online

"wisher Executed for 1997 Rape, Murder of Florist," by Adrienne Schwisow. (AP July 23, 2003)

JARRATT, Va. -- A man who raped and murdered an Augusta County florist was executed Tuesday night after Gov. Mark R. Warner declined to step in for a second time. Bobby Wayne Swisher, convicted of killing 22-year-old Dawn McNees Snyder in 1997, was pronounced dead by injection at the Greensville Correctional Center at 9:05 p.m.

After he was led into the execution chamber and strapped to a gurney, Swisher raised his head and appeared to smile as the prison chaplain spoke in his ear. Swisher then lowered his head and made his final statement before the injection was started. ``I hope you all found the same peace in Jesus Christ as I have,'' Swisher said.

Swisher, 27, had exhausted his court appeals. Last week, his lawyers asked Warner to grant clemency under certain conditions that would have lead to a new sentencing hearing. It was Swisher's last hope, and this time the governor declined to intervene. Swisher was originally scheduled for execution on July 1, but Warner intervened five hours before and granted Swisher's lawyers three weeks to prepare one final appeal to the Virginia Supreme Court. The high court refused to hear the appeal on Thursday.

Swisher's attorneys claimed he was entitled to a new sentencing hearing because the jury that recommended the death penalty was not told that life in prison without the possibility of parole was also an option. The sentencing form used by that jury was later ruled invalid by the Virginia Supreme Court in another case. In their latest appeal to the governor, defense attorneys Anthony F. King of Washington and Steven D. Rosenfield of Charlottesville wrote that ``the decision as to whether Mr. Swisher will be illegally executed is yours and yours alone.'' Sister Helen Prejean, author of ``Dead Man Walking'' and a spokeswoman against the death penalty, also wrote a letter urging Warner to stop the execution. But Warner had said three weeks ago that he would not intervene again.

An Augusta County jury convicted Swisher of abducting Snyder from her Stuarts Draft flower shop, raping her, slitting her throat and dumping her in a nearby river. It was Feb. 5, and Snyder was working late to get some Valentine's Day orders completed. Swisher, a high school dropout and former construction worker, confided to friends that he killed Snyder. He later confessed to police, and DNA testing linked him to the crime. Snyder's body was found 16 days after the slaying in a field along the river. Swisher was sentenced to die for his crimes in February 1998. Swisher's trial lawyers did not dispute what happened but argued that Swisher was too high on drugs and alcohol to know what he was doing.

ProDeathPenalty.Com

Bobby Swisher was sentenced to die for the capital murder of 22-year-old Dawn McNees Snyder. On February 5. 1997, Dawn Snyder disappeared from the florist's shop she co-owned. Swisher, who was 20 years-old at the time, gave an audio-taped confession admitting that he murdered Dawn on Feb. 5, 1997. Her body was recovered Feb. 21, 1997 near the shore of the South River, about two miles away from the Augusta County florist shop in Stuarts Draft. She was a co-owner of the shop.

After murdering Dawn, Swisher told a friend. Swisher stated: "You know the woman, Dawn Snyder . . . I killed her." Swisher related the following details to his friend. On February 5, 1997, about 7:15 p.m., Swisher's uncle drove Swisher by car to a grocery store located near the florist shop where Snyder worked. Swisher left the grocery store and walked to the florist shop. Swisher entered the shop, approached Snyder, and said, "I have a gun in my pocket." Swisher showed Snyder a "butcher knife with ridges" and directed her to go with him. Swisher forced Snyder to leave the florist shop through a rear door, and they walked for some distance until they reached a field by the South River. Then, Swisher stopped Snyder and told her to "suck his dick." He forced her to perform an act of oral sex upon him, and he made her remove her clothes. After he raped her, she put her clothes on, and he forced her to perform another act of oral sex upon him.

Swisher decided to kill Snyder because she had "seen his face." He "pulled out the butcher knife" that had "ridges around the edge of the blade," and he "slit her across the left side of the face and was holding her; then slit her throat and then gouged her and then tossed her into a river." He walked along the riverbank, watching her in the river, asking her, "[a]re -- are you dead yet?" After Snyder floated in the river for awhile, Swisher saw her "crawl up the bank." Then, "he got scared and took off running straight to his house from that field." Swisher threw his knife in the river. When Swisher finished his confession to the friend, Swisher stated that "it feels like I could do it again." The following morning, the friend called the police.

Swisher was taken in for questioning and admitted, in an audio-taped confession, that he had sodomized, raped, and murdered Snyder by cutting her throat. He also stated that after he cut her throat, he threw her into the South River. Besides the confession, court documents state that Swisher’s DNA was found in semen on the victim’s clothing and in her body.

UPDATE: Gov. Mark R. Warner postponed the execution of a convicted murderer today to give the man's attorney’s time to file a petition for a new sentencing hearing with the Virginia Supreme Court. Warner stepped in less than four hours before Bobby Wayne Swisher's scheduled execution by injection at 9 p.m. EDT at the Greensville Correctional Center in Jarratt. The U.S. Supreme Court earlier Tuesday rejected Swisher's appeal for a stay. Warner postponed Swisher's execution for three weeks to allow the state Supreme Court to issue a stay or rule on a petition for a new hearing. Warner said if no action takes place by July 22, he would not intervene again.

Lawyers for Swisher, 27, said he was entitled to a new sentencing because the jury that recommended a death sentence in 1998 for the slaying of Dawn McNees Snyder relied on a form that the Virginia Supreme Court later found defective. The form did not tell jurors that the alternative to execution was life in prison without the possibility of parole. In 2001, the court ruled that juries must have that information. Defense attorneys and capital punishment opponents say as many as 20 men have been sentenced to death by juries that used the form. They contend that more than a dozen killers executed since 1981 unsuccessfully challenged it.

National Coalition to Abolish the Death Penalty

Bobby Swisher (VA) - July 22, 2003

The state of Virginia is scheduled to execute Bobby Swisher July 22 for the murder of 22-year-old Dawn McNees Snyder in Waynesboro. Swisher, a white man, allegedly abducted and raped Snyder before cutting her throat and throwing her into a river on Feb. 5, 1997. Gov. Mark Warner granted Swisher a three-week reprieve just hours before his scheduled execution July 1 to give the courts another chance to review his appeal; however, Swisher’s attorneys have made little progress since, and now he is facing a July 22 date.

Swisher’s battle with severe depression led a jail doctor to prescribe him medication approximately four months before his trial. However, Swisher apparently did not begin the medication until two days before his trial. The drugs ended up having a sedative effect on him, making him seem apathetic to the outcome of his case. Yet when his attorneys asked officials at the jail if Swisher was on medication, they told them he was not.

The medication interfered with Swisher’s trial on many levels. First, he could not assist his attorneys in his defense; as one juror later stated, he looked like a “zombie.” Second, as a result of his demeanor his attorneys decided not to put him on the witness stand during the sentencing phase of the trial, striking his only opportunity to plead for his own life. Third, the jurors perceived his inattentive behavior as arrogant and uncaring, when in reality he was simply under the influence of sedative drugs. Two of the jurors who voted to sentence him to death later said that he “showed no remorse” at his trial; a defendant’s perceived lack of remorse is generally regarded as one of the most highly aggravating factors in the minds of capital jurors.

The medication also raises a critical issue in regard to Swisher’s defense counsel. Given his sedated disposition, he may not have been competent to stand trial in 1998. However, his attorneys failed to ask for a continuance or a competency evaluation, and instead laid out a weak defense, punctuated by a 7-minute closing argument, roughly half of which simply repeated the court’s jury instructions. On appeal, Swisher unsuccessfully argued that his inexperienced attorneys provided ineffective assistance of counsel at his trial. He also argued, to no avail, that the prosecution withheld potentially exculpatory evidence from the defense.

In April, the Virginia Supreme Court overturned the sentence of another death row inmate, Michael Lenz, finding that the statutory verdict form used in his trial was defective. The state reportedly used the same form in Swisher’s trial, but the courts have refused to consider his case on that issue, claiming that such an argument is procedurally defaulted this late in his appeals process.

Swisher, who had no prior criminal record, has been a trustee – a position only attained through impeccable behavior while in prison – through nearly all of his years on death row. In 2002, he became a “born again” Christian and has chartered a new direction for his spiritual life.

Virginia ranks second only to Texas in its use of capital punishment, and serious problems in its application of the death penalty have been revealed in the last year. In November 2002, the state executed Mir Aimal Kasi, a foreign national from Pakistan, despite questions regarding the denial of his right to consular officers under the Vienna Convention; the Kasi execution ignited massive protests and demonstrations in the international community. In May, Virginia scheduled the execution of Percy Walton, a mentally ill and mentally retarded man; the archconservative U.S. Fourth Circuit Court of Appeals stayed that execution.

Now, the state is preparing to execute Swisher despite issues ranging from questionable competency to ineffective counsel. Gov. Warner, who has the sole authority to grant clemency to death row inmates, should commute this sentence to life in prison. Please contact Gov. Warner and the state of Virginia and request clemency for Bobby Swisher.

Virginians for Alternatives to the Death Penalty

Bobby Swisher

In 1997, Bobby Wayne Swisher was convicted of the capital murder of Dawn McNees Snyder in the commission of an abduction or in the commission of or subsequent to rape or forcible sodomy and sentenced to death on the basis of both future dangerousness and vileness. The crime occurred in Stuarts Draft and the trial occurred in neighboring Staunton.

The Supreme Court of Virginia summarily rejected the majority of Swisher’s claims and affirmed his conviction and sentence of death. At the state habeas stage, Swisher claimed that his trial counsel were ineffective under the Sixth Amendment, but he was denied discovery and an evidentiary hearing by the state’s highest court. At his federal habeas stage, Swisher raised many of the same claims and again was denied an evidentiary hearing. Swisher recently lost in the Fourth Circuit Court of Appeals and the US Supreme Court.

Of particular note are several issues. Four months prior to trial Swisher was prescribed medication by the jail doctor for his depression, but the medication was not started until two days before his trial began. Swisher’s lawyers asked the jail if their client was on medication because of his mental condition and were told that he was not. Swisher was so sedated that his lawyers chose not to put him on the witness stand at his sentencing hearing. Two jurors later said in affidavits that Swisher looked like a “zombie” and that “he showed no remorse.” Swisher’s lawyers did not ask for a continuance or competentcy to stand trial evaluation.

His same trial lawyers were ill-prepared for trial. They failed to keep out inaccurate and inadmissable evidence and when it came time for closing argument at the sentencing phase, the lawyers had not decided who would give the closing argument. The lawyer who was a few years out of law school and handling his first jury trial gave a 7 minute closing argument almost half of which was reciting the court’s jury instructions.

The key witness against Swisher and the one most relied on by the prosecutor in his closing argument at sentencing gave contrary evidence from what he had told the police and testified under oath that he had no interest in the reward money offered in the case fully knowing that he would be receiving reward money. This information was not disclosed by the prosecutor to defense counsel as was required by law.

In April, 2003, in another death case, the Virginia Supreme Court ruled that the same statutory verdict form as was used in Swisher’s trial was defective, confusing to the jury and prejudicial, and that the death row prisoner was awarded a new sentencing hearing. Swisher has made the same arguments, but because trial lawyers did not raise the issue at trial, Swisher cannot obtain a new sentencing hearing from a court.

Swisher was scheduled to be executed July 1, 2003. However, "in light of the recent apparent ambiguity of the law [arising from the Lenz decision]" Governor Warner granted a 21 day stay of execution to allow Swisher's lawyers time to appeal the case to the Virginia Supreme Court. On July 17, 2003 that appeal was turned down on procedural grounds. Swisher is now scheduled to be executed on July 22, 2003.

Swisher was 21 years old at the time he committed the murder. He had no prior criminal convictions and has been a trustee on death row almost the entire time he has been there. In the Summer of 2002, Swisher became a “born again” Christian and has devoted his life to a new direction. Swisher has been on death row since February 20, 1998.

Governor Warner Press Release (July 1, 2003)

Statement of Governor Warner on the Scheduled Execution of Bobby Wayne Swisher

RICHMOND — Governor Mark R. Warner today issued the following statement on the scheduled execution tonight at 9 p.m. of Bobby Wayne Swisher.

"Bobby Wayne Swisher committed a vile and reprehensible act - an act which I believe justifies the death penalty. Although he admits his guilt, Swisher seeks a new sentencing hearing, arguing that the Supreme Court of Virginia has found the verdict form used to sentence him to death to be fundamentally flawed.

"The Supreme Court ruled on a substantially similar verdict form in another case in April, and subsequently vacated its judgment in that case only a few weeks ago - two separate decisions in the last 75 days which leave the law unclear. In essence, Swisher asks me to apply his reading of Supreme Court precedent to the facts of his case. In light of the recent apparent ambiguity of the law, I believe that in this particular case such a decision is more appropriate for the Supreme Court than for a Governor exercising his clemency power.

"In order to ensure just and consistent application of Virginia's capital punishment statute, Swisher's execution date will be delayed for three weeks, until July 22, 2003, for the sole purpose of allowing Swisher to petition the Supreme Court of Virginia and assert his claim regarding the verdict form. If the Court denies Swisher the relief he seeks - either by rejecting the merits of Swisher's petition or by refusing to consider his petition on procedural or other grounds - the execution will go forward on July 22, 2003. In that event, I will not intervene."

Richmond Times Dispatch

"Killer says he's ready to die; Swisher's lawyers make new plea," by Frank Green. (July 11, 2003)

Bobby Wayne Swisher's life was spared just hours before he was to die July 1. He likely will die July 22, his date with state executioners no longer avoidable. The 27-year-old said yesterday in a telephone interview he is ready to die, if it comes to that, because of a religious conversion about a year ago. He admits he killed Dawn McNees Snyder, 22, on Feb. 5, 1997, and says that he deeply regrets it. "I was just a wild child. I was out there having fun and partying. That was it. I was a stupid, narrow-minded kid and made bad choices with devastating results." He raped and sodomized the Stuarts Draft florist before cutting her throat and dumping her in a river.

Gov. Mark R. Warner stopped the July 1 execution so Swisher's lawyers could pursue what even they call a "highly unlikely" effort to win a new sentencing. In a July 2 letter, Swisher's lawyers told Warner that they had hoped he would order a new sentencing. Instead, the only effect of the governor's reprieve was to delay the execution for three weeks. "We find it difficult to believe that you intended this result," they wrote.

Swisher's only hope had been Warner. The governor stopped the execution - but then shoved the case back to the Virginia Supreme Court, which has said it can do nothing. Swisher's case cannot be heard by the Supreme Court because his trial lawyers did not object to the use of a defective verdict form during his trial.

The Virginia Supreme Court ruled in another case that the verdict form used was flawed because it did not make it clear that life in prison without parole was a sentencing option. The same form was used by Swisher's jury, but the justices made it clear that they could not consider a new sentencing for Swisher as a remedy. Swisher's lawyers asked the justices yesterday to consider a new appeal under a court rule that would enable them to hear claims that were not objected to at trial in order "to attain the ends of justice." Or, they ask the high court to find that Swisher's lawyers did not perform up to constitutionally acceptable standards because they did not object to the use of the form.

Attorney General Jerry W. Kilgore and Snyder's mother, Sandi McNees of Stuarts Draft, strongly criticized Warner for delaying the execution. On the other side, Jack Payden-Travers, director of Virginians for Alternatives to the Death Penalty, said that while he was grateful Warner stopped the execution, he was disturbed that the action may leave the faulty verdict form issue unresolved and Swisher back in the death house. Larry Sabato, a political analyst, said that if Warner had done something that caused the reversal of the death penalty in Swisher's case, "it would have come back to haunt him in a big way on the campaign trail." "The crime was horrific. It would be political suicide. People would see it as a cold-blooded killer getting off on the merest possible technicality," Sabato said.

Warner, in a prepared statement, made it clear he had no doubts as to guilt. "Bobby Wayne Swisher committed a vile and reprehensible act - an act which I believe justifies the death penalty." In another related matter, Swisher's lawyers have asked Warner to find out whether a key trial witness who changed his story was paid a $10,500 reward.

The witness, Jay Ridgeway, testified that Swisher admitted committing the crime and that he said: "I'll probably do it again." It was potent proof during the sentencing phase of Swisher's trial that he represented a future danger. According to Swisher's lawyers, Steven Rosenfield and Anthony F. King, Ridgeway, who was an acquaintance of Swisher's, first told authorities that he had not heard Swisher make the statement. He changed his story "in a secret meeting with the prosecutor one month before trial," Rosenfield and King allege. The lawyers contend Ridgeway changed his story to win the reward money. However, the lawyers have never been able to find out who received the reward money. In a letter to Warner this week, they ask the governor to find out.

Meanwhile, yesterday Swisher declined a chance to say something publicly to McNees. "I wrote a letter and everything to her so I'd rather let her get the letter first and read it for herself instead of having to read it in the paper," he said. "It's something that I have to live with every day," he said of the crime. He remembers enough, "to know that I don't want to revisit it. Over the years, I've put up a lot of walls. "I know that God is controlling it and he'll take care of the situation for me," Swisher said. "It was about 11, 12 months ago that I actually got serious about serving the Lord." Swisher said that "some days I'm ready to go and others, I'd rather stay."

He said he regrets having to put his family through everything again. His mother and brother visited him July 1, what was to have been his last day. McNees said she has never heard Swisher apologize and that she has not received a letter from him. She said she has come to peace with Swisher, but she still intends to witness his execution.

TheDeathHouse.Com

Bobby Swisher

Swisher is scheduled for execution July 22 for kidnapping a young woman from a floral shop, raping her, cutting her throat with a knife and throwing her into a river. Swisher, who was 20-years-old at the time, gave an audiotaped confession that he murdered Dawn McNees Snyder, 22. The murder occurred on Feb. 5, 1997. The victim's body was recovered Feb. 21, 1997 near the shore of the South River, about two miles away from the Augusta County floral shop in Stuarts Draft. She was a co-owner of the shop.

Swisher was originally scheduled for execution July 1. But, Gov. Mark R. Warner stayed Swisher's execution to give the condemned man's lawyers time to file an appeal for a new sentencing hearing. The defense lawyers contend that Swisher is entitled to a new sentencing hearing because the original jury that sentenced him to death was not told that life without parole was an option. So far, the courts have rejected that argument.

Virginia Supreme Court documents stated that after murdering Snyder, Swisher first told a friend. That friend later called the sheriff’s department. While being questioned by lawmen, Swisher admitted in the audiotaped confession that he kidnapped, raped and murdered the victim. Besides the confession, court documents state that Swisher’s DNA was found in semen on the victim’s clothing.

When he told his friend that he had murdered Snyder, Swisher reportedly said that after kidnapping and raping the victim, he decided to kill her because she had seen his face. After pulling out a butcher knife, slashing and cutting Snyder and tossing her into the river, he began to walk away, saying "are you dead yet," court documents stated. After watching her floating in the river, Swisher reportedly saw Snyder crawl toward the river bank. He then ran away.

In a posting for pen pals on a Canadian anti-death penalty site, Swisher urged people to write him, but preferred "someone of the female gender. He said because of his 23-hour a day confinement in a death row cell, he spends most of his time reading. Virginians for Alternatives to the Death Penalty reports on its web site that Swisher has become a born again Christian while in prison.

DEATH PENALTY NEWS (Rick Halperin)

Wed., Oct. 29, 1997 -- VIRGINIA:

In Salem, Bobby Wayne Swisher was convicted of capital murder Wednesday for raping and killing a woman he abducted from a floral shop.

A jury took just 85 minutes to find Swisher, 21, guilty of abducting, raping and killing Dawn Snyder on Feb. 5. The jurors will decide whether to recommend the death penalty or life in prison after a sentencing hearing concludes Thursday.

Ms. Snyder, 22, disappeared from the Enchanted Florist in Stuarts Draft, which she co-owned, while working late to fill Valentine's Day orders. Her disappearance sparked an extensive search in the community until her body was found 16 days later in a field 2 miles from the shop.

Augusta County Commonwealth's Attorney Lee Ervin said police had no idea who killed the woman until 2 of Swisher's friends contacted police Feb. 23. Jay Ridgeway testified that Swisher had been drinking with them all night when he broke down and admitted the killing. After his arrest, Swisher again confessed to the crime during a tearful interview with police. Ervin said Swisher deserves no mercy because he gave his victim no mercy after throwing her in a river and watching her struggle to the river bank. "She's splashing around and he's standing, looking down, saying 'Aren't you dead yet, aren't you dead yet,'" Ervin told jurors.

Swisher said he ran away, and Ms. Snyder managed to crawl 180 yards into a field where she died. Her body was ravaged by animals, so the exact cause of death was never determined.

Defense attorneys argued that Swisher did not kill Ms. Snyder deliberately and with premeditation, and blamed Swisher's action on the effects of drugs and alcohol he had used. "If he hadn't taken her down there and cut her neck and thrown her in the water she wouldn't have died," attorney Gordon Poindexter Jr. said in closing remarks. "That doesn't mean he committed capital murder. There are other kinds of murder."

During the sentencing hearing, Swisher's mother sobbed through most of her testimony as she described how her son's life lacked discipline. "He wouldn't listen to nobody," Blanche Swisher said. Swisher's father rarely saw the boy and at times denied being his father, she said. "It tore Bobby up pretty bad."

Rick Halperin (AI-Texas)

Swisher v. Commonwealth, 506 S.E.2d 763 (Va. 1998) (Direct Appeal). Defendant was convicted in the Circuit Court, Augusta County, Thomas H. Wood, J., of capital murder and was sentenced to death. Defendant appealed. The Supreme Court, Hassell, J., held that: (1) defendant was not entitled to bill of particulars; (2) deputies did not violate defendant's Miranda rights by questioning defendant at sheriff's office before arrest; (3) defendant voluntarily consented to testing of his jacket for blood; (4) defendant was not entitled to change of venue based on media coverage; (5) indictment adequately informed defendant of charges against him; and (6) voluntary immediate drunkenness was not admissible to disprove malice or reduce offense to manslaughter. Affirmed.

HASSELL, Justice.
In these appeals, we review the capital murder conviction, sentence of death, and related convictions imposed upon Bobby Wayne Swisher.

I. PROCEEDINGS

On April 28, 1997, an Augusta County grand jury indicted Swisher for the following offenses: capital murder of Dawn McNees Snyder in the commission of abduction with the intent to defile the victim of such abduction or in the commission of or subsequent to rape or forcible sodomy in violation of Code § 18.2-31 ; abduction with intent to defile Snyder in violation of Code § 18.2-48; rape of Snyder in violation of Code § 18.2-61 and forcible sodomy of Snyder in violation of Code § 18.2-67.1.

Swisher was tried before a jury and found guilty of the charged offenses. The jury fixed Swisher's punishment at life imprisonment for the abduction with intent to defile conviction, life imprisonment for the rape conviction, and life imprisonment for the forcible sodomy conviction. In the penalty phase of the capital murder trial, the jury fixed Swisher's punishment at death, finding that he represented a continuing serious threat to society and that his offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or aggravated battery to the victim. After considering a report prepared by a probation officer pursuant to Code § 19.2-264.5 the trial court sentenced Swisher in accord with the jury verdicts. We have consolidated the automatic review of Swisher's death sentence with his appeal of the capital murder conviction. Former Code § 17-110.1(F). Swisher's appeal of his non-capital convictions was certified from the Court of Appeals, former Code § 17-116.06, and was consolidated with his capital murder appeal and given priority on our docket.

II. THE EVIDENCE

On February 5, 1997, Dawn McNees Snyder disappeared from a florist shop where she worked in Stuarts Draft in Augusta County. Her body was found on February 21, 1997, near a riverbank about two miles from the florist shop. Animals had eaten extensive portions of her face, neck, and upper chest, and her identity was established by use of her dental records. On February 22, 1997, the defendant, age 20, was at an apartment with two friends, one of whom was Clarence Henry Ridgeway, Jr. Swisher told Ridgeway that Swisher had abducted, raped, sodomized, and killed Snyder. Swisher stated: "You know the woman, Dawn Snyder ... I killed her." Swisher related the following details to Ridgeway.

On February 5, 1997, about 7:15 p.m., Swisher's uncle drove Swisher by car to a grocery store located near the florist shop where Snyder worked. Swisher left the grocery store and walked to the florist shop. Swisher entered the shop, approached Snyder, and said, "I have a gun in my pocket." Swisher showed Snyder a "butcher knife with ridges" and directed her to go with him.

Swisher forced Snyder to leave the florist shop through a rear door, and they walked for some distance until they reached a field by the South River. Then, Swisher stopped Snyder and told her to "suck his dick." He forced her to perform an act of oral sodomy upon him, and he made her remove her clothes. After he raped her, she put her clothes on, and he forced her to perform another act of oral sodomy upon him.

Swisher decided to kill Snyder because she had "seen his face." He "pulled out the butcher knife" that had "ridges around the edge of the blade," and he "slit her across the left side of the face and was holding her; then slit her throat and then gouged her and then tossed her into a river." He walked along the riverbank, watching her in the river, asking her, "[a]re--are you dead yet?" After Snyder floated in the river for awhile, Swisher saw her "crawl up the bank." Then, "he got scared and took off running straight to his house from that field." Swisher threw his knife in the river.

When Swisher finished his confession to Ridgeway, Swisher stated that "[i]t feels like [I] could do it again." The following morning, Ridgeway informed the Augusta County Sheriff's Office of Swisher's crimes.

On February 23, 1997, Sergeant William E. Lemerise, Sergeant K.W. Reed, and two other deputies went to a house where Swisher resided with his uncles, Paul H. Swisher and William E. Swisher. Sergeant Reed advised Bobby Swisher that he was a suspect in the murder of Dawn Snyder and asked if Swisher would accompany the deputies to the Sheriff's Office for questioning. Swisher, who did not object, accompanied the deputies. Sergeant Lemerise informed Swisher that he would be required to wear handcuffs while en route to the Sheriff's Office because of a departmental policy which required that the sheriff's personnel transport suspects in restraints for safety considerations. Lemerise told Swisher that he would have to wear these restraints even though he was not under arrest.

When Swisher arrived at the Sheriff's Office, about 10:15 p.m., the handcuffs were immediately removed from him, and he was taken to a "briefing room." The briefing room is an open room with a coffee machine and a drink machine. There are no bars on the windows or door locks in that room. Swisher was permitted to smoke cigarettes, and he was given coffee. Sergeant Lemerise explained to Swisher that he was not under arrest, that he was a suspect, that the sheriff's personnel were going to ask him some questions, and that he was free to leave. Lemerise asked Swisher "how did he feel about the fact that he could walk out of there if he chose to, words to that effect ... and [Swisher] appeared at that point in time, although he was nervous ... to be fine with the situation."

Swisher spoke with the deputies, but did not confess to the commission of any crimes until after he was arrested and twice read his Miranda rights after midnight on February 24. Swisher admitted, in an audiotaped confession, that he had sodomized, raped, and murdered Snyder by cutting her throat. He also stated that after he cut her throat, he threw her into the South River. Dr. David Oxley, a medical examiner who performed an autopsy on Snyder's body, was unable to render an opinion about the specific cause of Snyder's death. He did state, however, that it was an inescapable conclusion that Snyder's death was the result of violent causes "probably related to the neck." Dr. Oxley was not able to determine positively whether the victim's throat had been cut because animals had eaten her larynx, trachea, and the large arteries and veins that were in her neck. The highest concentration of blood on the victim's clothing appeared on a shirt around the neck area extending onto the chest area. Patricia Taylor, a forensic scientist in the Forensic Biology Unit of the Western Regional Laboratory for the Commonwealth of Virginia, qualified as an expert witness on the subject of forensic DNA (deoxyribonucleic acid). She examined some panties that were found on Snyder's body. Her examination revealed that DNA consistent with Swisher's DNA was found in semen deposited on Snyder's panties. Taylor testified that the odds of the DNA found on Snyder's panties belonging to someone other than Swisher were one in 380,000,000 in the Caucasian population.

Spots of blood were found on Swisher's coat. Taylor testified that the DNA profile obtained from that coat is consistent with the DNA profile of Snyder and different from the DNA profile of Swisher. Taylor testified that the probability of randomly selecting an individual unrelated to Snyder who had a DNA profile consistent with the DNA on Swisher's coat was approximately one in 1.3 billion in the Caucasian population. Dr. Taylor testified that the DNA profile obtained from spermatozoa heads extracted from the victim's stomach and esophagus were consistent with Swisher's DNA profile.