2006-02-23 / News

Wrongful death trial expected to go to jury today

David Swain faces civil trial in the death of his wife Shelley Tyre
By Dotti Farrington

David Swain David Swain After almost eight days of testimony, the Superior Court lawsuit against former Jamestown Town Councilman David Swain for the alleged “wrongful death and the crime of intentional killing” of his wife Shelley Arden Tyre by drowning on March 12, 1999 was expected yesterday to be given to the jury of five women and one man for their deliberations and a verdict.

Lisa Tyre’s parents, Lisa and Richard Tyre of Jamestown, filed the civil suit in early 2002. Swain almost immediately filed a countersuit for defamation. The countersuit is on hold, pending the outcome of the wrongful death case, is being heard in Providence.

Authorities in the British Virgin Islands, where Tyre drowned, ruled Tyre’s death an “accidental drowning unless proven otherwise.” Police there referred the case to their coroner for an inquest that has not been scheduled.

Swain Wednesday morning made a brief opening statement. He said his daughter Jennifer Swain would be testifying in the afternoon about their going to his in-laws house when he returned from the Virgin Islands with his wife’s body. He noted that he would not be testifying himself, and he would not be calling other witnesses.

The plaintiffs’ attorney said he would rest his case without calling Swain to the stand.

Swain appeared in court briefly Tuesday, Feb. 21. That was to be followed by instructions to the jury by Associate Justice Patricia Hurst, and closing remarks by the plaintiffs’ lawyer, J. Renn Olenn.

Hurst and others have labeled the case as unique because Swain did not appear in court for most of the proceedings, and he chose not to be represented by his own counsel during the trial. Swain had lawyers until January when they withdrew after legal arguments centered on several delays by Swain and an illness of one of his lawyers. Hurst in January ordered the completion of depositions before the lawyers’ could withdraw. The Supreme Court earlier ordered the case to proceed to trial. Swain notified the court before the trial started that he would not hire new lawyers, would not attend the trial, and would not present a defense.

Action on motions

The judge this week ruled in open court, in the absence of the jury, on several motions after a conference she conducted in chambers with Swain and Olenn.

Hurst denied Swain’s motion for dismissal. He claimed Rhode Island had no jurisdiction. The court has no criminal jurisdiction, Hurst said, but she was emphatic that it had jurisdiction over financial aspects of the case. The judge denied the plaintiffs’ request to amend their claims to reflect testimony about alleged violence. She said existing charges reflect that possibility, as would what she expected to be her instructions to the jury before they begin deliberations.

The judge set aside Swain’s motion pertaining to the trial’s impact on his standing in Probate Court. Hurst said her instructions to the jury would cover options for financial damages, if any, and the status of the motion could be reviewed when the verdict is in.

Hurst denied Swain’s motion to quash the subpoena requiring him to appear before the jury. He claimed his three depositions were adequate, according to the judge. She said his decision not to appear and not to defend himself represented his waiver of rights to quash the subpoena.

She said the plaintiffs could have appropriate additional questions and cautioned Olenn about asking Swain questions that could draw Fifth Amendment claims of possible self-incrimination.

Swain’s testimony

About three hours of videotaped questioning of Swain by Olenn in 2003 and 2004 were screened. Swain was represented by a lawyer, who occasionally raised objections during the depositions.

Swain described the activities of the day his wife died while on a dive that they started together as part of a weeklong vacation. Swain said they separated during the dive so he could take underwater photograps and his wife could do reef studies and fish counts. The separate activities were part of their routine dive habits, he said. Swain did not explain why he and his wife did not follow diver-training procedures for a “buddy” system underwater.

In one answer, Swain said he did not make any resuscitation efforts on his wife and in other answers, he said he “may have” tried one or two breaths or for one or two minutes. About the seeming contradictions in his versions of his wife’s last dive, Swain said “I don’t know why” his early statement to police is different from later reports. “I was stressed. I was at my wits’ end. I don’t know what I did,” he said.

Swain, a trained emergency medical technician, confirmed that a diving friend found and surfaced with his wife’s body. He said he himself cleared his wife’s air passage, checked for a pulse and found none. He performed no CPR because he assumed she had been underwater too long to be revived, Swain said.

He agreed, in deposition, that his diving and EMT training was that he should have given CPR until a doctor arrived and that he should have had oxygen on board the diving boat. He said he would have given his wife oxygen if he had had it.

Several times Swain sparred with Olenn about details or about wording of the questions or wording of his answers. He replied don’t know” or “I don’t remember” “I haven’t a clue” about various aspects of the dive and the rescue attempt. He also gave those answers to questions about such possessions as his wedding album, and his knowledge about the financial status of his business, Ocean State Scuba. The dive shop Swain operates on 79 North Main Rd. in Jamestown is on property that Shelley Tyre owned.

During deposition, Swain suggested that Tyre paid all expenses, including those for food and clothing, that were not assigned as business costs. He did not know if gross business receipts covered all such costs, and that he was not aware of the extent of his wife’s contributions to the business.

Olenn presented accounting witnesses who claimed Tyre supported Swain and his business, and that Swain spent the nearly $1 million he took from the estate after her death. They said it was spent mostly on expensive trips. The Tyres’ case led to a hold on the estate. Swain is, or was as of five months ago, in debt for about $130,000, according to the bankruptcy claim Swain filed last October.

Tyre testimony

Swain also described a meeting he had about a week after his wife’s death with her parents. He admitted he “tossed” his wife’s diving log at his father-in-law when they asked him why he was not with her to assist her with whatever difficulty caused her to drown. Swain said that day included “painful accusations” by his in-laws. He brought the log with him “because I knew they were having a hard time understanding and maybe it’d bring some peace for them.”

Lisa and Richard Tyre testified that they were angry that Swain had not followed the buddy system. They said they did not suspect him of foul play at first and sought answers from various sources because they wanted to know and understand how their daughter died.

The Tyres’ son, Geoffrey Tyre, also a diver, testified about his immediate suspicions about his sister’s death and his being upset about Swain’s inadequate answers or lack of answers “that made sense.”

Other witnesses

Dr. Bruce A. Hyma, chief medical examiner for Florida’s MiamiDade County, testified that he concluded the death was a “homicidal drowning.” He is a leading crime scene investigator and trainer of medical examiners and CSI personnel from many locales. Hyma does not have jurisdiction in Virgin Islands where Shelley Tyre drowned, so he has no authority to pursue criminal charges, according to Olenn.

Hyma said that drowning is not a cause of death, but the result of the cause that could be physical, environmental, or medical. He detailed his analysis of the condition of her equipment, health and medical findings about the diver, dive location, and circumstances of her body. He said “no finding other than violence by another human” explained all the factors.

Another witness, Craig Jenni, a lawyer and underwater forensic investigator, said Shelley Tyre was “violently attacked” while in 85 feet underwater and her husband “was in the immediate vicinity at the precise moment she stopped breathing.”

Jenni showed Tyre’s diving equipment and explained the principles of diving. He explained his process of ruling out other possibilities for Shelley Tyre’s drowning. Jenni told the jury he had come to the same conclusion as Hyma after he inspected Tyre’s diving equipment and being a witness at one of Swain’s depositions.

He detailed the defects of her mask strap pin, a fin embedded toe first in the sand, and a broken snorkel with the mouthpiece missing. He said Tyre was still wearing her weight belt which she was trained to shed in an emergency, and that she had more than enough air in her tank, which was functioning properly.

Jenni said Tyre was alive for eight minutes during the dive she started with Swain. Jenni said Swain returned to their (rented) boat about 35 minutes after starting. The couples’ friend, Christian Thwaites of Saunderstown and Vermont, said he found Tyre on the sea floor about five minutes after Swain returned to the boat.

Using a map drawn by Swain of their dive together and then his swim alone around the dive site, Jenni calculated their individual times. “At that precise time, Shelly was no longer breathing and Mr. Swain was in her vicinity.” He projected that even if she were already unconscious on the sea floor, Swain would have had to see her, but surfaced alone later. “The only conclusion is David Swain attacked Shelley Tyre,” Jenni said.

Last week’s courtroom events included showing a film demonstration of what the plaintiffs’ witnesses believe happened to the Tyres’ daughter. Later during a recess, the elder Tyres told their lawyer that “at least the worst is over.” Olenn replied. “It’s not. It gets worse.” That conversation was before Hyma and Jenni’ gave their conclusion, and the reports of Dr. Thomas Neuman, a 30-year specialist in diving medicine who has done work with U.S. Navy submarine and SEAL operations.

Neuman reviewed Shelley Tyre’s records, including logs of 352 dives, and the circumstances of her death. He concluded, “She had no reason to panic, but condition of her scuba gear was suspicious.”

Bill Oliver, who designs diving devices and was described as a leading engineer in the industry, said the diving fin’s location was unusual and probably caused by “external force.” He said the pin and snorkel could be missing only because of force that is not ordinarily involved in the typical removal of those items.

The jury also saw the videotaped testimony of Mary Basler of Warwick, a chiropractic doctor and a friend of Swain for about two years before his wife’s death. She said she discouraged romantic advances by Swain while Shelley Tyre was alive because she did not want to be involved with a married man. Swain stayed overnight with her one night some weeks before Shelley’s death, Basler said. It was romantic, “but we did not have sex,” she noted. She said she started a romantic relationship with him in less than “two or three months” after his wife’s death and soon was “physically intimate . . . sexually involved.”

The relationship between Swain and Basler reportedly ended in 2002, and he married for a third time. He most recently listed himself as single in a court document.

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