The Yellow Fin in the Sand

In 1999, 43-year-old David Swain, the owner of Ocean State Scuba in Jamestown, RI, and his 46-year-old wife of nearly seven years, Shelley Tyre, chartered a sailboat in the British Virgin Islands with friends Christian and Bernice Thwaites and their son. The last day they were to dive, they moored off Cooper’s Island to dive two tugboat wrecks.

The couples had agreed that two adults would remain on the boat to watch the Thwaites’ boy, so Tyre and Swain went into the water. Swain returned to the boat alone 35 minutes later, saying he was chilled. Christian Thwaites dropped into the water for his dive.

Moments later Thwaites spotted one of Shelley Tyre’s yellow swim fins and looked for Tyre, figuring she would be grateful that he had found her fin. Instead, he found her lying on her back on the sandy bottom with her eyes and mouth open. Thwaites took Tyre to the surface, where he tried to perform CPR. Swain, who had been an emergency medical technician, helped lift his wife aboard, but did not try to resuscitate her. She was dead.

James Philip Brown, who runs Aquaventure in Tortola, thought the death was suspicious. Tyre and the Thwaites had visited his shop to rent gear and discuss where to dive. A day after Tyre died, Brown dived the wrecks looking for something that might explain the death. Brown found one of Tyre’s fins embedded toe first in three inches of sand. He found her snorkel, sans mouthpiece, and her mask. On one side of the mask, the strap hung loose off its anchoring pin.

Brown locked Tyre’s scuba gear in his office to await inspection by Tortola police. Two days later, Swain told him that he could get rid of the equipment, give it to a local diver or use it in the rental business. Brown refused. Swain fretted that the medical examiner was taking a long time to do an autopsy and asked if he knew anyone who might “expedite the process.” Swain said that “the medical examiner might not know about diving accidents,” and he wanted to talk to him before the autopsy. Swain’s remarks seemed irregular to Brown, enough for him to approach Tortola police. But zno charges were brought.

Shelley Tyre’s parents asked Swain for an explanation of the death, but did not find him forthcoming. As more information came to light, and Swain continued to stonewall, they brought a wrongful death suit against him, which was heard over nine days in February 2006.

A violent struggle

During the trial, Bill Oliver, a mechanical engineer who designs diving equipment and is product manager for Sherwood, presented videos of tests he conducted. He showed how Shelley Tyre’s fin would have simply sunk, heel first, under normal conditions, and how the strap of her mask could have pulled free if it had been yanked from behind. When Brown 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.

Dr. Thomas Neuman, a diving medicine specialist reviewed Tyre’s medical records, and said the five- foot, one-inch woman weighed 120 pounds and was in good health. She had logged at least 352 dives, and had no reason to panic. Her tank was two-thirds full when it was found and the dive site was a “benign” sand location.

The chief medical examiner of Miami/Dade County, Bruce Hyma, testified that evidence suggested a “violent struggle with another individual.” The pin holding one side of the mask strap in place was missing, indicating it had probably been ripped from the mask frame. Hyma, a diver for 36 years, said no medical condition would have interrupted Tyre’s normal breathing. With her experience she could have effectuated a self-rescue if she had the opportunity. “Her air supply was shut off,” he said, and he called it a “homicidal drowning.”

Underwater forensic investigator Craig Jenni concluded that Swain had attacked his wife in 80 feet of water. Had Tyre encountered an emergency other than an attack, she would have dropped her weight belt to the surface as fast as possible. But Tyre was found with her weight belt still on. Her primary and octopus regulatory were working perfectly.

Based on air still in Tyre’s tank when it was found, Jenni determined Tyre was underwater for about eight minutes before she stopped breathing. Divers normally swim about one foot per second while underwater, an important calculation considering what Swain said during his deposition: after a five-minute descent to the wrecks together, he set off alone and made one revolution around one of the sunken boats.

After considering the size of the wreck and Swain’s own mapping of his swim, Jenni figured it would have taken Swain about three more minutes to get back to where he had left Tyre. “At that precise time, Shelley was no longer breathing,” said Jenni, and Swain was in her vicinity. Even if she were already unconscious, Swain would have had to see her, Jenni said. But he came up alone. “The only conclusion,” said Jenni, “is David Swain attacked Shelley Tyre.”

After the fact

Keith Royle, a Tortola dive operator, responded to the Mayday call. When he got to the sailboat, he jumped aboard and offered to perform CPR, but was told it wouldn’t be necessary because Tyre was dead. He thought it unusual since he was taught “you do CPR until someone more qualified takes over.”

Three hours after Tyre’s death, Swain gave a written statement to the Tortola police, saying his wife had swam off and left him by the wrecks. When he could not see her, he went looking for her. However, in depositions taken in 2003 and 2004, Swain said they dived together to the tugboats. Swain said it was common for them to split up — she counted fish and he took photographs. But, he then contradicted his statement to the police, saying he swam around one of the wrecks before moving toward a reef in shallower water. At some point, he said, he looked back and saw Tyre, the last time he saw her alive.

When asked where was the dive computer he wore that day, which would have registered how long he was under the water and what depths he reached, Swain said. “I haven’t a clue.” He said he also could not remember where the photographs were that he took during the dive. Had he drawn any conclusions, asked Olenn, about how his wife died? “Nope,” said Swain.

Swain’s testimony was on videotape. Swain did not testify on his behalf and chose not to be represented by his own counsel during the trial.

Sex and Money

Why would a dive shop owner murder his wife and dive buddy? Before the death, Mary Grace Basler testified that, she had rebuffed Swain’s advances, telling him she wasn’t interested because he was married, though he overnighted at her home once. Two weeks after Tyre died, Basler met Swain at a restaurant and in two months they were lovers, she said.

While a prenuptial agreement prevented Swain from receiving anything from Tyre if they divorced, after the death Swain collected $570,000 from life insurance policies and Tyre’s investments. By February 2003, he was in debt from taking extensive trips to the Caribbean and other cities. He currently faces debts of $189,000.

Swain chose to defend himself outside the courthouse. He said, “This is a tragic accident that is a personal matter between me and the Tyres” — his former in-laws. “I didn’t do it. . . . I feel for the Tyres. . . They have the pain to deal with. I have pain to deal with too. But the thought that we are going to work out this pain by going through this is absurd . . . This issue of money . . . is not something I want to be a part of.”

Tyre’s lawyer said it was not about money, “it’s about justice . . .Tortola authorities won’t do anything, and Rhode Island authorities can’t, and so it’s up to [the jury] to see that justice gets done.”

The Verdict

During closing arguments, the jury heard Tyre’s attorney tell how he believed Swain had killed his wife. Using a videotaped demonstration filmed underwater where one diver attacks another, he described how Swain had climbed onto Shelley Tyre’s tank, ripped off her face mask, shut off her air supply, and held her down on the sandy bottom.

The eight member jury found Swain guilty and awarded Tyre’s parents $3,534,943 for compensatory and punitive damages. The standard of proof for a civil jury is whether “the “preponderance of evidence” leads them to believe that the alleged crime occurred. Jury foreman Robert Capello said the jurors were not convinced the attack happened as outlined, but “other than human intervention, how else could she have died? And who else was in the vicinity when it happened other than Swain.”

After the verdict, Swain said, “I would welcome a criminal trial.” At least then “all evidence gets evaluated” and not just pieces. Swain is considering an appeal and has sued Shelley Tyre’s parents for defamation.

From reports by Tom Moody, Providence Journal