PROVIDENCE, Rhode Island (17 Feb 2006) -- Almost seven years after Shelley A. Tyre died while scuba diving in the Caribbean, her parents sat in court yesterday accusing her former husband, a onetime Jamestown Town Council member, of her killing. But David Swain wasn't there to face the wrongful-death claim. Neither was his lawyer. As one plaintiffs' witness after another took the stand to advance the Tyres' contention that Swain killed their daughter for her money, the eight jury members were left to stare at an empty defense table, never hearing a single challenge to a question, nor any cross-examination to counter the allegations. Superior Court Judge Patricia A. Hurst counseled the jury in the civil case not to draw any inferences from Swain's absence. But to the most casual viewer of TV's Law & Order, the proceedings would have appeared skewed. Even the Tyres' lawyer, J. Renn Olenn, acknowledged that Swain's absence had lent a strange twist to the case. "I've never seen this before," Olenn said during a break in the testimony. "I really want him [Swain] here. I want to see him up on the stand, so I can cross-examine him, but I don't think he wants it." Swain has denied killing his wife and has countersued Richard Tyre, his former father-in-law, for defamation. Swain has noted in court papers that no criminal charges have been brought against him. The police in Tortola, in the British Virgin Islands, where the couple had gone diving in 1999, have ruled Tyre's death accidental "unless proven otherwise." Swain did not return phone messages yesterday left at his house and his Jamestown dive shop, Ocean State Scuba. But in recent weeks and months, he has asked for continuances in the case, citing as a reason the poor health of one of his lawyers. He is expected to appear at his trial today, to argue his own motion for dismissal. RICHARD TYRE filed the wrongful-death suit in March 2002, accusing David Swain of killing his daughter -- an expert diver who had made close to 400 dives -- during a trip to Tortola in March 1999. In his opening remarks to the jury, on Tuesday, Olenn alleged that Swain had killed his wife after pursing a romance with another woman, and knowing that his prenuptial agreement with Shelley Tyre would leave him with nothing after a divorce. "Divorce was not an option for him," Olenn declared. Olenn portrayed Swain as a man dependent on his wife's salary; she was a principal at a private Massachusetts middle school, earning about $80,000 a year. Swain's dive shop continually lost money, Olenn said, and his marriage was eroding, in part due to his new love interest. Olenn said that Shelley Tyre knew her marriage was in trouble. She had recently taken a new job at the Rocky Hill School, in East Greenwich, which although it paid half what she had made at Thayer Academy, in Braintree, Mass., was closer to Jamestown and her husband. AMONG the witnesses Olenn presented yesterday was James Philip Brown, who runs a dive shop on Tortola, and who was the first to raise suspicions of foul play in Shelley Tyre's death. Brown said he met Swain, Tyre and another couple -- Christian and Bernice Thwaites, who were vacationing with them -- when they came in that week in March to talk about renting equipment and places to dive. Brown said he gave the couples four options and they chose the "twin wrecks," the most remote of the locations. He said all the dive locations around Tortola are regularly inspected by dive companies, to ensure that there are no potential dangers. A day after Shelley Tyre died, Brown said, he dove over the twin wrecks looking for problems that might explain the diving death, as well as to find the camera Christian Thwaites said he had lost while helping bring Tyre up from 80 feet of water. During the dive, Brown said, he found Tyre's mask and snorkel, and one of her fins. On one side of the mask, the strap hung loose off its anchoring pin, and the mouthpiece of her snorkel was missing, Brown testified. | | Almost seven years after Shelley A. Tyre died while scuba diving in the Caribbean, PADI 5-Star IDC Ocean State Scuba owner David Swain is on trial for allegedly murdering his wife. Brown said he also found one of Tyre's yellow swim fins, embedded toe-first in about three inches of sand -- an oddity, since, as another witness testified yesterday, fins normally sink heel-first to the bottom. Following divemaster protocols, Brown said, he took all of Shelley Tyre's scuba equipment -- including her air tank -- and locked it in his office to await inspection by Tortola police. But two days after Tyre died, David Swain came to visit his shop. "He told me I could get rid of the equipment," said Brown, and suggested the divemaster give it to a local diver or use it in the rental business. "I said I did not want to do anything with it until the authorities give me the okay to do so." Brown said Swain also expressed concern that it was taking the medical examiner a long time to do an autopsy on his wife, and asked if he knew anyone who might be able to "expedite the process." Swain also appeared concerned that "the medical examiner might not know about diving accidents, and he wanted the opportunity," said Brown, to talk to the doctor before the examination of his wife's body. Swain's remarks, "seemed highly irregular to me," Brown said, enough so for him to eventually approach Tortola police with his theory: that Shelley Tyre had drowned after being attacked from behind. OLEN ALSO CALLED as a witness Bill Oliver, a mechanical engineer from San Diego, who has worked for decades in the scuba industry and has designed several types of diving equipment. Oliver presented video footage of tests he conducted showing how Shelley Tyre's fin would have simply sunk, heel first, under normal conditions, and that the strap of her mask could have pulled free if it had been yanked from behind. Brown said that when he found Tyre's fin, the heel strap was still fastened tight. Oliver testified that only a strong "external force" could have pulled the fin off. Judge Hurst would not allow Oliver to answer, however, when Olenn asked him to speculate how he believed the fin came off. Olenn also showed the jury the videotaped deposition of another Tortola dive operator, Keith Royle. Royle's boat was just leaving an island near the twin wrecks dive spot, he said, when he heard the mayday call of a diving accident and turned around to help. Royle said that, when he got along side the chartered sailboat Caribbean Soul, he saw a woman in a wetsuit lying on the deck. He jumped aboard and offered to perform CPR, he said, but one of the men on board -- it was unclear who, from his testimony -- said that wouldn't be necessary: she was already dead. "I was told by a gentleman aboard that he was an EMT, that he had seen dead bodies before, and there was no need to do CPR," Royle said. Didn't he think it unusual, Olenn asked, not to undertake any rescue effort at all? "Yes," said Royle, his training always had taught him "you do CPR until someone more qualified takes over." SOURCE - The Providence Journal |
