DATE: Saturday, November 15, 1997           TAG: 9711150350

SECTION: LOCAL                   PAGE: B3   EDITION: FINAL 

SOURCE: BY SUSIE STOUGHTON, STAFF WRITER  

DATELINE: SUFFOLK                           LENGTH:   49 lines

ROCK-THROWER GIVEN FIVE YEARS IN PRISON

Sending a message that hitting cars with rocks is not child's play, a Circuit judge sentenced Andre H. Swan on Friday to serve five years in prison for throwing a chunk of concrete through a windshield last April.

The baseball-sized rock hit the driver, Evan Spivey, in the face, knocking him unconscious and causing his truck to jump a median and crash into a guard rail on the opposite side of U.S. Route 17.

Spivey, a Nansemond River High School baseball star, had just left a baseball tournament at the school with several friends and was heading to Churchland to eat.

Swan, who was convicted in September of two felony charges in the incident, was lucky no one was killed, said Judge E. Everett Bagnell.

Swan, 21, and several teen-agers were throwing rocks at vehicles near the Interstate 664 overpass in northern Suffolk on April 3, court testimony showed.

Spivey had surgery to repair bones in his face that night. He is scheduled to have plastic surgery next week.

Assistant Commonwealth's Attorney W. Randolph Carter Jr., who prosecuted the case, called the incident an ``indiscriminate act of violence,'' no different from a sniper's shooting at innocent victims. He asked Bagnell to sentence Swan harshly.

``It was absolutely senseless,'' Carter said. ``It doesn't get any more malicious than this.''

Swan's court-appointed attorney, Johnnie E. Mizelle, asked for leniency to allow his client a chance at rehabilitation.

`This was a senseless, childish act,'' Mizelle said. He called the incident a prank ``that got out of hand, like kids playing with matches.''

Bagnell sentenced Swan to 20 years in prison, with 15 suspended, on a charge of malicious wounding, and to 10 years, with all suspended, on a charge of throwing a missile into an occupied vehicle.

Swan was ordered to pay restitution - more than $12,000 so far - and court costs. He will also be on supervised probation for an indefinite time after he is released from prison. Swan must receive counseling, Bagnell said, to understand the ``significance of his actions and how he needs to be held responsible.''

Mizelle, who said Swan had asked him to apologize to the victim and his family, said his client will appeal. ILLUSTRATION: Photo

A baseball-sized rock thrown by Andre H. Swan on April 3 hit a

teen-age driver in the face, knocking him unconscious.

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