2009-10-22 / Front Page

Prosecution rests in Swain murder trial

By Mason Marcus

TORTOLA, BVI – After hearing testimony from 19 witnesses, British Virgin Islands prosecutors closed their case against David Swain late Tuesday afternoon. The Jamestown native, who is accused of murdering his wife, Shelley Arden Tyre, in March 1999, has maintained his innocence.

Last week, the nine-member jury heard testimony from Swain’s former lover, Dr. Mary Basler, and a handful of medical and diving experts. The prosecution closed its case with more than four hours of taped deposition from Swain’s 2006 civil trial.

Basler, a chiropractor from Warwick, told the court that she and Swain were romantically, but not intimately involved before Tyre’s death. According to her testimony, in 1998, Swain spent an evening at her home and the two kissed.

During cross-examination, Basler said it was the first indication Swain was attracted to her in any way, and she stopped any further advances. She told the court she had “reservations about getting deeper involved with him,” and was “not interested in an involvement… because he was married.”

Basler also testified that two months after Tyre’s death, she and Swain began an intimate relationship. In letters shown to the jury, Swain refers to Basler as his “playmate” and “soulmate.”

But the relationship was short lived. By fall of 2000, Basler said she split up with Swain.

The court also heard testimony from Bruce A. Hyma, chief medical examiner for Miami-Dade County. Dr. Hyma said Tyre had no pre-existing medical condition that could have caused her death and ruled out other diving-related accidents.

“She had no medical reason to die,” he said. “Anything that happened at the wreck was either done by Tyre or Swain.”

During cross-examination, the defense questioned whether Tyre had been drinking the night before the murder. The defense also suggested Tyre suffered from the medical condition TMJ, which it alleged could have caused her mouth to lock open or shut.

But Dr. Hyma maintained Tyre was a trained and experienced diver, who knew how to safely surface had she panicked.

“The only way she couldn’t have saved herself was if there was a violent struggle, and she was deprived of air,” he said.

“Isn’t the point about panic that even experienced divers act outside the way they are trained and expected to [act]?” asked defense counsel Hayden St. Claire-Douglas.

Dr. Hyma’s testimony was corroborated by expert evidence given by Dr. Thomas Neuman, a leading researcher in diving deaths. Dr. Neuman discounted the TMJ theory.

“It’s not a danger to a diver to get this condition during a dive,” he said.

According to medical records, in 1996, Tyre reported pain opening and closing her jaw and mouth. At the time, dentists fashioned a bite guard and as late as December 2008, she was wearing the device.

Dr. Neuman testified that Tyre would have no reason to have opened her mouth widely underwater, and no reason to panic if her closed jaw became clenched.

“When you are diving, you have a regulator in your mouth; your mouth is closed, you breathe air. I cannot conceive of any reasonable way that may have resulted in her death,” he said.

During cross-examination, Dr. Neuman admitted that had Tyre’s jaw locked open, it was possible it could have been taken as a sign of rigor mortis during the autopsy. But Dr. Neuman discounted defense theories that Tyre panicked underwater.

“We don’t have any evidence of an equipment failure. We don’t have any evidence of her running out of air. The environment in which she was diving was not one which should have produced any panic,” he said.

Later in the week, the BVI court also heard testimony from Connecticut-based attorney John Harpootian, who told the court he created Tyre’s will and the couple’s antenuptial agreement.

According to Harpootian, Tyre’s net worth at the time of the marriage was approximately $238,000. Swain’s was around $75,000.

Harpootian said the two agreed that in the event of a divorce, neither would be entitled to the other’s assets. Swain’s lawyer argued that the antenuptial agreement was a sign of the couple’s love. “He’s saying: I love you for you. I don’t care about your assets, about what you have, I want to be in this marriage for you,” he said.

“Each party is saying that same statement,” Harpootian responded.

But on Friday, Anthony Lee, a forensic accountant, told the court that Swain was virtually broke at the time of the marriage.

Lee testified that during the marriage Swain was earning around $800 annually, according to tax returns, while Tyre earned between $44,000 and $70,000 per year.

“Shelley Tyre brought everything that they had into the marriage,” he said.

Lee also said that Tyre contributed heavily to Swain’s business, Ocean State Scuba. “The married couple was living basically on Tyre’s income,” Lee said. “Swain was contributing nothing to cover the household financials.”

The forensic accountant also testified that Swain inherited more than $600,000 at the time of Tyre’s death. By 2004, he alleged, soon after, all the money was gone. “He traveled very lavishly and extravagantly,” Lee told the court.

Earlier this week, prosecutors closed their case, playing more than four hours of taped testimony from Swain’s civil trial.

In the tapes, Swain defends his dive shop, claiming it was a successful business.

“We were paying the bills, we were certifying divers, we were having fun,” he said. He tells the Tyres’ lawyer, J. Renn Olenn, that he was “thrilled” when he learned Tyre planned to move from Thayer Academy to the lower-paid position at the Rocky Hill School.

“It was a given that we would pool our resources and make a go at things. It was certainly not something that was written down. We had a conversation about it as husband and wife,” he said.

Asked about Tyre’s fatal final dive, Swain told Olenn, “Like many people, I’ve thought [about] this backwards and forwards five ways from Sunday and still have no idea.”

The defense plans to call between five and seven witnesses during the next few days. The sentence for murder in the BVI is life in prison.

Mason Marcus is a business reporter/ editor for the BVI Beacon, a weekly newspaper in Tortola.

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