Howard defense challenges conduct of investigation | Arkansas Blog

Friday, May 8, 2015

Howard defense challenges conduct of investigation

Posted By on Fri, May 8, 2015 at 9:04 AM

State Police Investigator Hays McWhirter (right) with a deputy. - BRIAN CHILSON
  • Brian Chilson
  • State Police Investigator Hays McWhirter (right) with a deputy.

Phillip Bush, who admitted selling methamphetamine at the time Brian and Shanon Day were killed, said the last time he saw Brian alive was the night before the couple were murdered.

Bush said Brian Day came to his house at about 7:30, picked up about $800 that Bush owed him and asked for the rest of the meth Bush had on hand. Bush said he gave Day two ounces of meth, worth about $500, and then Brian left after telling Bush that he was going to collect some more money.

He said Tim Howard, who is being retried for the couple’s murders, was not with Brian that night. It was his understanding, Bush said, that Brian was working on a deal to buy a four-wheeler and some stolen guns.

Brian Day and his wife Shanon were found murdered the following morning, Dec. 13, 1997. Brian was shot in the head and left in a U-Haul truck on farmland near Ogden and Shanon was found strangled in the bedroom of the couple’s home.

Bush said he never left his house after Brian Day’s Friday night visit, explaining, “I was out of money and out of dope.”

After learning of the murders the next day, Bush said he went to the home of a couple of friends who testified earlier in this trial. Those two had reported that Bush brought a gun with him, which he cleaned at their kitchen table — something he’d never done before.

The husband testified that the gun was a 9 millimeter Ruger automatic and that Bush ended up staying at their house until after sunup Sunday morning — something else he’d never done.

Bush testified that he had, indeed, gone to the couple’s house the night of the murders and that he may have taken his gun. But when asked if he had cleaned it at their kitchen table he became emphatic: “I did not wipe down my weapon.”

Bush said that Danny Russell, the sheriff of Little River County at the time, was his ex-wife’s cousin, and that he and Russell treated each other like family. After the murders, Bush said, the sheriff met with him.

“He walks in and closes the door,” Bush said, “and he takes his badge off and puts it down. He says, ‘Talk to me, Cuz, and tell me what happened.” Bush said he related just what he was telling the court and that, “after the conversation was over, he put his badge back on and said, ‘Now I’m the sheriff again.’ ”

Bush testified that he asked Russell if he needed to get a lawyer and that the sheriff said, ‘No, this isn’t a drug case, it’s a murder case.” With some hesitation, he added, “He said, ‘You know, if you step on your dick, I’m going to be there to pick it up for you.’ I said, ‘That’s why I voted for you.’ ”

Bush also reported that Russell suggested he talk to Hays McWhirter of the state police, who was overseeing the investigation, adding that McWhirter might ask to see his weapon. 

While Bush was with McWhirter, he said, he reached into his pocket to pull out some Copenhagen smokeless tobacco and a clip for his Ruger fell out. Bush said he picked the clip up and put it back into his pocket and that, seeing this, McWhirter commented, “That’s a good idea.”

Bush said neither Russell nor McWhirter ever asked to see his gun. When Bryan Chesshir, the prosecuting attorney cross-examined Bush, Chesshir suggested that Russell’s off-color remark was a warning to Bush that he’d be watching him, and Bush agreed that it was.

Brian Proksch has died since 1999, when Howard was tried and sentenced to death for the Days’ murders. Patrick Benca, Howard’s defense attorney, had Proksch’s testimony from that trial read into the record of this one.

Proksch said Brian Day came to his house between 9:30 and 10 the night before the murders, saying that he wanted to borrow some money because he was leaving town for a while. Proksch testified that he gave Brian about $80 and that he left saying he had “some business he had to take care of.”

Proksch said the business involved “dealing with non-local people,” and that Brian’s wife was worried about it.
Over strong objection from the prosecutors, Benca next called Stan Wilhite, a crime scene investigator recently retired from the Little Rock Police Department. Benca asked Wilhite about the way police had handled the crime scenes involved in the Days’ murders, and Wilhite offered several criticisms.

For example, he said a diagram of the field where the U-Haul was found had no fixed point of reference, that the direction marked ‘North’ on the diagram was actually 90 degrees off; that the scene was not secured, resulting in it being contaminated by people and vehicles; and that evidence there was not properly marked, photographed and preserved.

Deputy Prosecutor Al Smith defended Hays McWhirter’s investigation, noting that several police vehicles had arrived at the scene before McWhirter took control. “If you get out there and if you’ve got a mess, there’s not much you can do, is there?” Smith asked.

Again, noting that officers from the sheriff’s and a police department had arrived at the crime scene before McWhirter, Smith asked, “So, it wasn’t his fault if somebody else wasn’t doing what he was supposed to, was it?”
Wilhite said the points he mentioned were basic — standard operating procedures for all law enforcement agencies.

Deanna Parks Klutz testified that she and Shanon Day had been “best friends” for about 10 years. She said:

—that Brian and Shanon “were always in debt” and finding it hard to pay their bills;
—that she had seen a “fear look” cross Brian’s face a month or so before the murders when a white truck with Oklahoma tags pulled into the driveway, and that Brian told her and Shanon to leave and not to come back for an hour;
—that a pregnancy test Shanon took two weeks before her death reported negative;
—and that the last time she saw Shanon, when Shanon came to her house at around 2 or 3 a.m. the day before the murders, nothing she said made sense. “She was scrambled,” Klutz said.

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