Reporting by Mara Leveritt on the murder trial of Tim Howard in Little River Circuit Court.
ASHDOWN—A series of startling statements shook the second day of Tim Howard’s retrial Tuesday, as prosecutors continued presenting their case.
Prosecuting Attorney Bryan Chesshir started the cavalcade by suggesting that the 1997 slayings of Brian and Shannon Day sprang from a treacherous combination of sex and race.
On Monday, Chesshir told jurors in his opening statement that Shannon Day believed she was pregnant by Howard. The Days were white, and Howard, a close friend, is black.
On Tuesday, Brian Day’s older brother David said he suspected his sister-in-law Shannon was “up to something” with Howard a few months before the Days were killed. Chesshir asked Day: “I don’t mean this to be a racial comment, but did you ever see the defendant date a black woman?”
When Howard’s attorneys objected to the question, Chesshir told the judge: “I think it will go to the heart of this matter before it’s over.”
When Judge Charles Yeargan allowed the question, Chesshir rephrased it, asking Day again whether he’d ever seen Howard date or have a relationship with a white woman. David Day said, “No.”
Chesshir then asked Day what kind of clothing Howard wore. Day said he typically wore jeans, boots and a shirt, attire he called “country.” Pointing to Howard, Chesshir asked if that was essentially how the defendant was dressed in court and Day said it was.
David Day also told Chesshir that he had visited his brother and sister-in-law’s house on the night before their murders. Day said that during that visit, Shannon told him that she and Brian were very afraid of Tim.
Yet when Howard’s attorney, Patrick Benca, cross-examined Day, showing him notes from statements he’d given police the night of the murders, Day acknowledged that those notes contained no mention of the Days’ alleged fears of Howard. Day also confirmed Benca’s assertion that he failed to mention any such fears when he testified at Howard’s original trial.
After Day told Chesshir that he had seen no signs at the couple’s home that they were preparing to move, Benca asked whether he was aware that Shannon had rented two storage units shortly before their murders. Day said he was not.
“You don’t approve of whites being with blacks, do you?” Benca asked Day. Chesshir objected but Yeargan allowed the question. “No,” David Day answered.
Hays McWhirter, a criminal investigator for the Arkansas State Police, was on the stand for the rest of the day. McWhirter, who served as lead investigator on the case, spent most of his time identifying nearly a hundred items relating to the two crime scenes where the bodies were found.
That evidence included: a pair of work boots with blood on them; a purse strap found around Shannon Day’s neck; a set of cheap, self-release handcuffs; a red Marlboro duffle bag in which the Day’s infant son was discovered alive; two picture frames found piled atop Shannon’s body; a five-foot-long truck tool box Howard had bought; clothes from the victims and the bullets removed from Brian’s head.
Benca challenged the quality of the investigation. He questioned McWhirter by objecting to the admission of a blood sample said to have been taken from Howard because McWhirter had not initialed the package before it was sent to the crime lab, thus preserving the chain of evidence.
During 90 minutes of grilling by Benca, McWhirter acknowledged that access to the field where Brian Day’s body was found had not been controlled; that at least seven vehicles drove through the single gate onto the field; that no photos or casts were taken of tire tracks at the scene; that plastic bags of clothes found ripped open at the Days’ home were not tested for fingerprints; and that McWhirter discarded a tape-recording he made of a witness interview.
When asked by Benca to explain how blood could have run in the direction it did on the boots attributed to Howard, McWhirter offered two theories and suggested there might be others. At another point, in opposition to prosecutors’ theory that Howard acted alone, McWhirter said it was possible that more than one person had rolled Brian Day’s body into the van.
At first, during his cross-examination, McWhirter said he had not seen a recently discovered video recording a deputy made of the crime scene. A bit later, he said that he had seen it.
“Why did you say before that you hadn’t watched it?” Benca asked. McWhirter said, “I don’t know.”