ASHDOWN — Tim Howard’s trial in 1999 for the murders of his friends Brian and Shannon Day took three days, from opening statement to death sentence. Thursday was day-four of Howard’s retrial and, after introducing more than 200 items of evidence, prosecutors are still at least a day away from concluding their case.
Thursday began with Judge Charles Yeargan’s denial of motions made by defense attorneys Wednesday afternoon seeking a mistrial and dismissal of charges against Howard. Yeargan also denied a defense motion seeking a ruling that the state had committed cumulative error, commenting that he did not think this case rose “to that level yet.”
Howard’s attorney, Patrick Benca, then resumed the cross-examination of Dr. Charles Kokes, Arkansas’s chief medical examiner, which was interrupted the day before when Kokes mentioned a comparison he’d done of boots found near the Brian Day crime scene with wound patterns on Day’s head visible in autopsy photos.
Under questioning the day before, Kokes said the injuries to Day’s face were “consistent” with a theory presented by prosecutors that Day’s body, alive but incapacitated by a bullet shot into his brain, had been wrapped in a piece of carpet and run over by a U-Haul truck.
On Thursday, Benca asked if the injuries could also have been caused by Day’s head having been kicked and stomped. Kokes said that individually, the marks would not support that possibility, but that, “as a total” they would be consistent with that scenario too.
When questioning moved to the bullet wound, Benca placed the two bullet fragments that had previously been entered into evidence on an overhead projector. Benca asked if those two pieces represented all the bullet fragments left in Day’s brain.
“Are you testifying that you got all the bullet out?” Benca asked. “No,” Kokes replied. “I’m saying that anything we didn’t get would have been miniscule.”
Benca then asked about x-rays. Kokes acknowledged that, while autopsies usually include x-rays, he did not recall x-raying Brian Day’s body, and that, while the crime lab’s records indicated that “there were x-rays,” he did not recall ever having seen them.
When Deputy Prosecuting Attorney Alwin Smith questioned Kokes on redirect, Smith revisited the question of whether Shannon Day was pregnant at the time of her death. Kokes said that notes provided to the state police investigator prior to Howard’s first trial indicated that, “If she was pregnant it would have to have been less than one week—early enough so you would not be able to tell with a standard pregnancy test.”
Benca then asked Kokes if he was aware of a letter Hays McWhirter, the state police investigator, had written to the crime lab when Howard was pursuing some post-conviction appeals, asking that tests that had been requested to confirm that Shannon Day was not pregnant not be conducted. Kokes said he was.
The state’s next witness, James R. Looney, the lab’s firearms specialist, testified about the jacketed hollow-point bullet fragments removed from Brian Day’s head. He said their combined weight was 115 grains, a weight that narrowed the likely weapon to a nine-millimeter pistol, a .38 Special or a .357 Magnum.
A .38 Special only uses bullets weighing 110 grains or 125 grains. A .357 Magnum uses bullets weighing at least 125 grains.
Benca asked if Looney had ever dealt with “a 115-grain anything” having been shot from a gun other than a 9-mm Luger.
Looney said he could not think of one. But, adding that, “we don’t know how much weight is missing,” he suggested that other fragments could have remained in the victim’s brain.
Smith next questioned Charity Diefenbach Holland, the DNA examiner who tested three hairs and blood samples the crime lab submitted to the private lab where she worked prior to Howard’s first trial. At the time, she concluded that all three hairs produced the same mitochondrial DNA profile and that that profile “matched” that of the blood, which police had collected from Howard.
During her questioning on Thursday via Skype, Holland repeated her conclusion that the profile her tests produced was “relatively rare” and could conservatively exclude at least 99.8 percent of the U.S. population.
Failure by Howard’s original prosecutor to turn over notes Holland made of those tests caused the current retrial. On Thursday, she explained the series of errors that had occurred during the tests, all of which she said were “sort of typical of events that can happen” and readily corrected. She said such a series of errors had never happened to her before and that it was “a little unlucky” that they all occurred in this case.
On cross-examination, Holland acknowledged that “any of Tim Howard’s siblings could have the same mDNA,” and that, if his particular family tree were closely examined, the number of people with the same mDNA profile could be “a lot.”
Finally, the state called Bobby Humphries, the Arkansas crime lab’s chief latent prints examiner. He testified about the numerous items the lab had tested for fingerprints in this case, such as parts of the U-Haul truck, inside which Brian Day’s body was found, the brown strap found around Shannon Day’s neck, the handcuffs with which she was bound, a window frame and two picture frames that were found on top of her body and the lamp cord that was tied around their baby’s neck.
Humphries reported that Howard’s prints were identified on four objects. Three of those were parts of the U-Haul truck that Howard told police he had gone with Brian Day to rent. The other was a print of his right ring finger that was on a bottle of Mountain Dew found in the living room of the Day’s home.