2006-03-23 / News

Swain files for new trial and appeal

Judge will hear motion for a new trial today
By Dotti Farrington

David Swain, 50, a former Jamestown town councilman has filed two motions in a civil lawsuit that was decided against him by jurors last month in Superior Court in Providence.

Swain has filed a motion for a new trial that was scheduled to be heard this afternoon. He has also filed an appeal that would go to Supreme Court in no less than two months if he follows through on his appeal motion.

In addition, Swain is involved in Jamestown Probate Court and federal Bankruptcy Court cases.

On Feb. 24, after a two-week trial before Associate Justice Patricia Hurst, a jury of five women and one man from northern Rhode Island communities found that Swain "by a preponderance of evidence committed battery . . . (and) killed with malice aforethought" his wife Shelley Arden Tyre, 46, while they were scuba diving in the British Virgin Islands on March 12, 1999.

The civil lawsuit against Swain was brought in 2002 by Richard and Lisa Tyre of Jamestown, the parents of Swain's wife.

In his motion to Superior Court for a new trial, Swain contends "the evidence presented is so circumstantial and speculative that reasonable minds, weighing the fair preponderance of evidence, could not reasonably conclude a verdict against (him). The verdict is contrary to the evidence and lack of evidence." Swain chose not to attend most of his February trial. He has been representing himself since his lawyers were allowed to withdraw from his case in January, after months of arguments about their roles and delays, including the illness of one of the lawyers.

In his motion for a new trial, Swain contends that he requested "modest continuances" and that he was "prejudiced by his lack" of a lawyer.

Swain's nine filed objections include his claim that the Tyres are not the heirs if he is ruled out. He claims his two (adult) children by his first marriage succeed him as heirs. Shelley Tyre's will specifies that her step-children inherit her estate if Swain died within 30 days of her death. The SwainTyre marriage in 1993 was the second for each, and she never changed her birth name.

Swain's claims for a new trial faults the judge for wrong jurisdictional decisions, including acting under Rhode Island instead of British Virgin Island law, and for wrong instructions to the jury. He faults the Tyres' lawyer, J. Renn Olenn, for misrepresenting Swain as refusing to testify and for being unfair by stating that Swain's brother killed their mother in 1976.

No criminal charges were filed in the British Virgin Islands and none can be filed here or anywhere else except the British Virgin Islands, according to several law and court authorities. Swain cited the British Virgin Islands police and medical examiner as listing his wife's cause of death as "accidental drowning unless proven otherwise." The British Virgin Islands police have acknowledged that the case is not closed, but have not detailed any actions or further investigations they are making.

Verdict award

The Tyres' lawsuit accused Swain with the "wrongful death and (the) crime of intentional killing" of their daughter. The jurors awarded the Tyres $1.5 million in compensatory damages and $2 million in punitive damages. Since the verdict was handed down, the court has applied interest of 12 percent on the compensatory award, from the date of death to the date of the verdict, adding more than $1.2 million, for a total award of $4,815,085.

The Tyres have said repeatedly that their case was to learn what happened to their daughter and that it never was about money for themselves. They are pursuing actions to keep Swain from benefiting further from his wife's death, and to possibly recover some of her estate or their courtawarded judgment. Most court observers suggest they will see little money even if they win all motions in all courts.

Early this month, the Superior Court issued a "civil judgment of verdict" that said "the Court determines that as a matter of law the verdict defines the defendant as a slayer" under Rhode Island law and that definition affects his right to any proceeds that his wife willed to him.

Swain filed an objection to the motion. Judge Hurst, who presided over the civil trial and all court activity before and since the verdict, denied Swain's objection.

Other courts

The Tyres have claims against Swain pending in both Probate Court, which put a hold on the remainder of the estate after Swain liquidated about half of it. Estimates of the value of the Tyre estate have ranged from $700,000 to $1 million.

The Tyres also have actions pending in federal Bankruptcy Court, where last October Swain filed as being without assets and in debt for more than $100,000 on 16 credit card accounts.

The next action in the bankruptcy case is set for April 6. On that date, Bankruptcy Trustee Stacy Ferrera is due to rule on the dischargability of the case.

The Tyres have filed objections to Swain's being discharged from responsibility for his debts.

Swain claimed his debts reflect expenses for and investments into his business, Ocean State Scuba that he operated from his late wife's property at 79 North Main Rd. in Jamestown.

During Swain's February trial, the Tyres' lawyer claimed Swain spent the money he took from the estate on expensive trips.

In order for his appeal to the Superior Court to proceed, Swain would have to pre-pay for a transcript of the trial, which could cost several hundred to $1,000, court officials said.

Once a transcript is produced, the appeal will be assigned for hearing in Supreme Court.

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