He Hasn’t Killed but He May Get Death Sentence

Hans Swaving, a 33-year-old career criminal, has an unusual distinction among murder defendants who have faced the possibility of a death sentence in Orange County. No one claims that he killed anybody.

Swaving, of Canoga Park, was convicted last week of first-degree murder in the 1984 shooting death of a Westminster jeweler, and the jury found that the shooting occurred during a robbery. Swaving was not the shooter but was armed and was a participant in the robbery.

The jury’s robbery finding forced a penalty phase in Swaving’s trial, and that began Thursday. Jurors now must decide between a verdict of death or life in prison without parole.

“Will a jury send someone to the gas chamber who is not a killer? I wouldn’t think so,” said Huntington Beach attorney Larry B. Bruce, who represents Swaving. “But then, I didn’t think the case would get even this far either.”

Swaving and an acquaintance, Tory E. Navey, 24, were arrested following a shoot-out with police shortly after the Oct. 19, 1984, robbery of Jewelry Showcase at Beach Boulevard and Westminster Avenue. The owner, Juan E. Suarez, 38, was killed after a scuffle, with his wife and 7-year-old daughter nearby. Testimony from the victim’s wife and physical evidence showed that it was not Swaving who fired the shot.

But both men were armed--Swaving was carrying a submachine gun--and both Swaving and Navey were later found guilty of shooting at police during a chase after the robbery.

Deputy Dist. Atty. Richard F. Toohey claims that Swaving was the leader in the robbery and deserves the death penalty as much as the person who pulled the trigger. Navey’s trial on similar charges is set for Feb. 17.

It was Swaving who scuffled with the jewelry store owner.

“Mr. Swaving certainly didn’t expect (the other robber) to stand by idly while that was going on,” Toohey said.

But if a jury does give Swaving the death penalty, it could be a first for Orange County.

Toohey says, however, that there is precedent for it and that it has happened in robberies in other California counties.

But Chief Deputy Dist. Atty. James G. Enright, who heads the homicide panel of the Orange County district attorney’s office, said he couldn’t recall a similar case in Orange County in his 29 years as a prosecutor. He said the decision to seek a death verdict against Swaving was not made lightly. Numerous discussions about it took place within the district attorney’s office, he said.

Swaving has a record that goes back to his teen-age years, when he was sent to the California Youth Authority on drug charges.

He voluntarily returned to his native country, the Netherlands, in the early 1970s after he was arrested on forgery and auto theft charges. But he returned to the United States and was arrested in early 1977 at his father’s Canoga Park home by the FBI for a 1976 Seattle bank robbery. He served five years in prison and was deported to the Netherlands after his release but re-entered the United States through Canada, according to Toohey.

Two weeks before the Oct. 19, 1984, Westminster robbery, Swaving and another man robbed a pawnshop in suburban Salt Lake City, according to testimony Thursday. One of the items stolen was the .38-caliber gun used to kill Suarez in Westminster.

The pawnshop owner and a bank employee from the 1976 robbery testified Thursday. The bank employee, Sonja Babcock, said Swaving put a gun against her ribs and said, “I know how to use this.”

Pawnshop owner Robert H. Kearbey said the older of two robbers--who he said looked like Swaving--threatened him with a large gun during the robbery.

Defense attorney Bruce readily admits his client’s criminal past.

“He is a career criminal,” Bruce said. “But he hasn’t committed any acts of violence.” The shooting of the jewelry store owner shocked Swaving so much that he ran from the store and left the jewelry behind, Bruce said.

Bruce asked Babcock if Swaving had been violent during the robbery.

“His gun was violent; his manner was not,” she said.