Defendant to Face Trial for Shooting Intruder
John Chiv covers the local legal system for his blog. He shares his observations on some high profile trials with us in our Humboldt Justice guest column.
Both defense and prosecution agree Brian Swan shot a man, Robert Babb, on April 8 but they disagree on whether Swan should be in jail for the shooting. Swan was initially arrested for Attempted Homicide but later, the charges, according to, Deputy District Attorney Roger Rees, were changed to Assault with a Firearm with one special allegation that he personally used the firearm and one that he personally inflicted great bodily injury.
Today there a preliminary hearing where a judge determined there was enough evidence to take the case to trial and John Chiv was there. Below is his report on what reportedly happened the night of the shooting.
Humboldt County Sheriff 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 explained to the court. He called HCSO Detective Todd Fulton to respond at the alleged crime scene, as a second investigator.
The property where the alleged shooting occurred is on Aspen Way, at the top of Humbodlt 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 her 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 the girlfriend of Swan and also of Robert Babb.
Kierney was not home at the time of the alleged shooting. Musson said that after the 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. According to Musson, Mr. Babb said he and Ms. Kierney were in his vehicle in Eureka and they had gotten into an argument. They fought about whether she wanted to be with Swan or Babb. She denied being with Swan. Babb told Musson that he did not believe Kierney. Babb told Musson that Kierney had told him to go up to the house and talk to Swan.
Babb told Musson that when he got to the house, 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 Musson that he had told Swan that they needed to talk about the relationship. Babb said that Swan had 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, according to Babb, 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 shoot me and he did.”
Deputy Hill told Investigator Musson that when he arrived at the scene of the shooting he saw “a baseball sized hole and liver hanging out” of the victim. 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. According to Musson, Mr. Swan told him that he and his 4-year-old daughter were in the living room. She wanted to play on the laptop. Around 11:30 p.m. both began to doze off.
The child, Swan told Musson, heard something, 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. Musson said that Swan told him that he saw Babb standing by the baby gate. He retrieved a knife near the couch and told Babb, ‘Get the hell out of here.’ Babb, Swan told Musson, 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?’ According to Musson, 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 her grandmother Charlene Hughes to call the cops. Swan said he told Hughes, “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 three or four 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.” Brian Swan was held over at the jail to answer to charges of Assault with a Firearm with the additional special allegation that he personally used the firearm and the allegation that he personally inflicted great bodily injury.