Judge to look at case law before deciding whether to try man for getting gun during gas station argument

Calling it a "close call," a judge Tuesday said he needs another month to decide whether a Jackson man should stand trial for grabbing a gun during a heated exchange at a Cape Girardeau gas station last November.

Judge Scott Thomsen heard from three witnesses during a preliminary hearing for James H. "Junior" Swift, who faces a charge of unlawful use of a weapon after he allegedly reached into his car for his gun and tucked it in his waistband during an argument over moving his car at Kidd's on Broadway.

But Swift has a Missouri license to carry a concealed weapon, muddying the legal waters. At issue is whether he deliberately displayed the gun in an angry or threatening manner, a legal prerequisite for the charge.

Patricia Cox, who testified Tuesday, said he did. She told the judge that when she asked Swift to move his car so she could fuel up it set off a swearing match between the two of them.

That's when Swift reached in his car, grabbed his gun and put it in his waistband.

"He made sure that I saw it," Cox said. "To me, my life was in jeopardy."

At first, Cox was unable to even identify Swift, who was sitting at the defendant's table directly in front of the witness box. Later, she did, attributing her earlier lapse to being nervous.

Under cross examination by Swift's lawyer, Allen Moss, Cox acknowledged that Swift never pointed the gun at her, never waved it around and never told her he intended to use it.

"Did you go into Kidd's? Did you try to get away? If you felt so threatened, why didn't you try to leave?" Moss asked.

Cox replied that she immediately called 911. Moss also brought up several crimes that Cox has pleaded guilty to, including several counts of stealing and one count of resisting arrest.

Cox's daughter also testified, saying she was there when Swift pulled the gun out, although she only saw it from where she sat in the car. Moss also showed Cox's daughter a sworn statement she gave that night, where she wrote that she never felt threatened.

After the testimony, Moss asked the judge to dismiss the charges.

"They haven't met their burden of proof," Moss said. "He did what he was legally authorized and licensed to do."

Assistant prosecutor Jack Koester countered that the permit to conceal the gun didn't give Swift the right to exhibit it. Koester cited the 1998 case Missouri v. Johnson, when a defendant's conviction was upheld even though a witness simply saw a bulge in his shirt and later heard shots.

Koester said it is clearly a crime when "someone brings out a gun in an angry or threatening manner" during an argument.

Moss pointed out that the 1998 case was heard before Missouri even enacted its conceal carry law in 2004.

Thomsen's initial reaction was to send the case to trial.

"It seems to be a jury question whether he exhibited the gun and whether it was in an angry or threatening manner," Thomsen said. "It's a close call."

Thomsen said he will review the case and render a ruling April 24.

Regardless, Moss said not to expect a plea regardless of what the judge decides.

"We're committed to going to jury trial," Moss said. "If it's a close call at this level, it will be really difficult at trial where the burden of proof is much higher."

smoyers@semissourian.com

388-3642

Pertinent address:

101 Court St., Jackson, MO

1325 Broadway, Cape Girardeau, MO