Joshua James Clark struck John Swain out of fear for his life, not as part of a pre-planned murder, his attorney said.
The state called several witnesses who testified at the start of Clark’s trial Monday about what they saw the day Swain is believed to have been murdered.
Investigators believe Clark, 20, is one of two men who conspired to murder Swain, a stranger to him until that day.
Swain, 18, had moved to Bismarck from Sioux Falls, S.D. He was reported missing on May 14, 2013. According to court documents, two men, Clark and Theo Crowe, lured Swain into a Bismarck home, hit him with a hammer, cut off his legs and hid his body.
Clark is charged with Class AA felony conspiracy to commit murder. Crowe, 26, pleaded guilty in October to the same charge.
What the two sides agree on is the murder of Swain was a tragic coincidence.
“John (Swain) happened to be in the wrong place at the wrong time,” said Burleigh County State’s Attorney Richard Riha in his opening statement.
The defense is arguing that it was Crowe who struck the killing blows and who initiated the attack without Clark’s prior knowledge.
Defense Attorney Kent Morrow said Crowe and Clark invited Swain to drink at Crowe’s residence. He said the three were there 10 to
15 minutes when Crowe attacked Swain first.
“There was no conspiracy to do this,” he said in his opening statement. “This was a random act of violence.”
Morrow told the court Theo Crowe admitted hitting Swain four to five times in the head with a hammer. He said Clark admitted to hitting Swain once out of fear of what Crowe would do to him if he didn’t.
Morrow said Crowe told Clark, “Alright, it’s time to man up, Josh.”
“He did what he needed to do to get out of the situation,” Morrow said of Clark.
With no means of escape, Morrow said, Clark cleaned up the hammer, cut off Swain’s legs, cleaned up the scene, wrapped the body in a shower curtain and took it to the garage of Crowe’s residence before Crowe allowed him to leave.
“Mere presence at the scene does not make a person guilty,” Morrow said.
Of the witnesses who testified, only two saw Clark with Crowe the day Swain went missing. Both of those witnesses said only Crowe was acting in a threatening manner. None of them saw the fatal blows struck.
Rhia said the murder weapon was not available because it had been thrown into freshley-poured cement on a north Bismarck home site.
Testimony began with Swain’s roommate Cody Haluzak. Swain had been staying with Haluzak and his family at 512 N 22nd St. in Bismarck, about three doors down from where Crowe had been living. Haluzak had worked with Swain in Sioux Falls.
Haluzak said Swain had gotten into a fight with Haluzak’s cousin over taking out the garbage. Swain left on foot to “cool off.”
Haluzak testified he received several text messages from Swain throughout the day. The first was at noon saying he was hanging out with a homeless man near the railroad tracks. The second was at 3 p.m. saying he was “tipsy.”
Haluzak said he met up with Swain at 5 p.m. but Swain would not leave with him. Clark was not with Swain and Haluzak did not know him.
Finally, at 7 p.m., Haluzak received a final message from Swain saying he was going home.
The next day, May 12, Swain had not returned, was not answering texts or phone calls and did not have his liver medication he took as a result of a liver transplant when he was younger.
Paul Groce and Codi Mass, neighbors living in the residence above Crowe, were the only two witnesses to see Clark on May 11.
Groce testified that Crowe threatened him with a hammer and tried to get in a fight with him several times that night. Neither of them said Clark be-haved threateningly.
Groce said later that night he heard banging and screaming from the apartment below.
“It lasted for a minute or two then it was dead quiet,” he said.
Both Mass and Groce also testified they saw Crowe loading garbage bags into the back of his truck a week later.
On June 20, the two reported finding some burnt items in a trash can behind the residence. Among the items were clothing that matched clothing Swain was wearing when he was last seen. There also was a knife, pieces of a cellphone, a shower curtain and bedding.
Megan Martin, the woman whose residence Crowe had been staying in, had been away from home traveling. She testified when she returned on May 13 she found blood on her couch and floor. Crowe told her two different accounts of how the blood got there.
Crowe later took the couch and replaced it without Martin’s permission.
“All Theo told me is I would love my new couches,” she said.
Martin’s shower curtain was also missing and her shower wouldn’t drain. She said she found a clump of black hair in the drain with dried blood on it. The burnt bedding later found in the trash can matched bedding in her apartment.
Dawnie Crowe, Theo Crowe’s wife, also had been gone due to marital problems.
“Everything built up and I had to leave that day
(May 10),” she said.
Dawnie Crowe said Martin contacted her about the blood. When she asked Crowe about it he gave her two different stories before admitting to her he and a friend had killed a man, she said.
Crowe told his wife the man they killed had pulled a knife on him and was a drug dealer. Neither Martin nor Dawnie Crowe had seen or knew Clark.
Sgt. William Connor of the Bismarck Police Department, testifying on his investigation, corroborated Martin’s testimony. From interviews with Dawnie and Theo Crowe he and the other investigators found Swain’s body on June 26, 2013, at Theo Crowe’s grandmother’s house in Poplar, Mont.