Two different verdicts were reached last week in the trial of Dwight Olmstead, 57, of Heber Springs. A predominantly male jury convicted Olmstead of battery in the second degree, a class “D” felony, and found him not guilty of the more serious charge of attempted murder. He was sentenced to three years in the Arkansas Department of Corrections.
Facts are: On February 17, 2007, Dwight and his father Tom, 78, were involved in a disagreement at the family funeral home in Heber, a scuffle ensued, both men were shot, and Tom was hit in the head with a crystal paperweight. Dwight was shot in the abdomen and Tom was shot in the lower left leg. After that, the lines between what actually happened and what each man states happened become blurry.
The gun used was an older model 22-caliber handgun, owned by Tom.
After the investigation by the Heber Springs Police Department concluded, Deputy Prosecuting Attorney Tommy Smith charged Dwight with the two felonies.
During the three-day trial last week in Mountain View, Tom and Dwight both reiterated the same stories they gave police the day of the shooting, each blaming the other for the incident.
The trial began Tuesday with the seating of the jury, which took most of the day, and the calling of Tom to the stand. He said the night before the shooting Dwight visited him and Dwight’s mother Joanne. “Tom said they visited, Dwight asked for help in paying a $50,000 American Express Card; Tom said he would help,” said Smith. “The two agreed the next day around 7 a.m. at the funeral home to talk. Tom testified when they were at the funeral home he was seated at a desk, Dwight came around the desk, and hit him in the head; he said he didn’t realize he had picked up the paperweight.
“He said Dwight then grabbed him by the arm to set him up in the chair, put the gun to his head, and pulled the trigger. The gun did not go off.”
During further testimony about the shooting Tom said, “There was a paperweight on the desk, Dwight struck me it and blood came down my face. I was bleeding pretty badly.”
In explaining his story in more detail, he said, “The gun misfired and we wrestled a little bit. Dwight shot me and left the room. After that I went down the hall and fell into the casket, display room, lying all the way down. Dwight was right beside me like we were in bed together. Dwight went into the arrangement room to make a phone call and the gun landed about three feet from my reach. I head him talking on the phone and I picked up the gun and put it behind a display cabinet because I was afraid he would come back and get the gun.”
(Tom said the entire incident took about seven to eight minutes. “It went pretty fast.”
During his testimony last Wednesday Tom said he spoke to his wife Tuesday night about the trial and being asked about social security and disability benefits, going against the court rule to not discuss his testimony.)
A decision on whether to file a contempt charge against him has not been made.
After giving his side of the shooting story, Tom was dismissed from the stand.
The 911 calls made after the incident were played for the jury. The tape starts with Dwight making a phone call to police to report the shooting. At this time he was still at the funeral home and Tom could be heard in the background, making noises leading a listener to believe he was injured.
Police were dispatched to the Olmstead home at first since that’s where the caller ID said the call was being placed from. Once the dispatcher realized the caller was at the funeral home, police were redirected to the business.
Also in the tape, an employee at Haile’s Exxon called 911 to report someone (Dwight) was at the gas station; police were directed there.
A third call came from Tom reporting he had been shot and needed an ambulance and two police officers to the funeral home.
Radio traffic from police and ambulance crews were also heard on the tape.
During the playback of the tape, Dwight appeared emotionless and either stared straight ahead, or looked down.
Other witnesses that didn’t have hard testimony for the case were called to the stand, answered their questions, and were dismissed.
One prosecution witness was asked if she came into contact with Dwight in the capacity of her job at a mental hospital. “I did. I was asked to evaluate him and determine if his injuries were a suicide attempt or a murder attempt.
Smith asked her if she talked to Dwight about his wound and how he got it. “He told me he had shot himself in an attempt to commit suicide to punish his father.”
Defense Attorney Patrick Benca asked, “Did you have conversation with Dwight?”
“Yes,” she answered.
“Did Dwight indicate he was fearful of his father and worried about father?”
“Yes.”
“Did he say he didn’t want father to have any ramifications from the incidents of that day.”
“Yes.”
“Were you sure whether he was telling the truth?”
“No, I was unsure.”
“Did he appear to be fearful of his father?”
“Yes.”
During redirect Smith asked the witness if Dwight’s wife and daughter relayed they feared he was suicidal. “Yes,” was her answer.
She was dismissed after no other questions were asked.
Smith called lead detective in the case, Chad Meli to the stand.
Meli told Smith on the day of the shooting he was called at home to respond to the funeral home for some type of disturbance. “I’m not sure if I knew right off the bat if it was a shooting or not.”
When Meli arrived officers had already determined the funeral home was clear of any additional people. “When I arrived at least one ambulance was there too.”
Meli testified he went to the funeral home first and took over the crime scene. “I spoke with some of the officers and was told the scene had been cleared.
“I familiarized myself with the scene and made sure if there was a suspect, the suspect was in custody.
“Once we knew no one else inside and both injured parties were sent to the ER, I went there to interview both suspects.
“Dwight stated his father attacked him in funeral home, shooting him in the stomach and shooting himself.
“Tom said he was at the funeral home after being invited by Dwight, said having pleasant conversation, said Dwight hit him in the head, pulled him up out of his seat, pulled out a gun, tried to shoot him, there was a malfunction, said he was shot in leg, had blood in eyes, glasses off, Dwight placed a call and left the building.”
Smith said, “You have two versions, physical evidence, and both shot?”
“Correct,” answered Meli.
Meli, using a diagram of the funeral home floor plan, told the prosecution, defense, and jurors what he found at the crime scene including blood, a blooding rag, shell casings, unspent rounds, Tom’s glasses, and other items.
Tom had testified his glasses either fell off or were taken off during the incident. “Were Tom’s glasses found up somewhere or on the floor,” asked Smith.
“I believe they were on a bottom shelf and I’m unsure how they got there. Tom said he was aware his glasses came off, but he didn’t say where they were.” Meli answered.
Meli collected Dwight’s clothing he had on during the shooting before he left the hospital. “I didn’t collect Tom’s clothes because he had already been discharged from the hospital and was at home. Tom still had the clothes, but at that point I had already lost my chain of custody, meaning even if I had taken them and something was found, the evidence would be worthless.”
Meli was dismissed from court and the doctor that treated the Olmsteads at Baptist Health in Heber was called to the stand.
He testified he treated the younger one first because of the possible severity of the wound. “I was worried about the abdominal shot. I didn’t know if any internal injuries were sustained. He was shipped to Little Rock.
“The bullet entered the lower left abdomen and seemed to travel laterally to the lower left area and exited below the left hip area.”
Smith asked, “Did you take a statement?”
“He said he had been shot by his father.”
“Did you see Tom?”
“He was injured to a lower leg and had a head wound to the scalp on top of his head. His bullet wound was superficial. It was below the calf area and appeared to be traveling downward. No bones were hit.
“He said his son had ambushed him and thrown a paperweight and his son shot him in the leg after a struggle. I told him I was not concerned with the criminal matter, just medical.”
During cross-examination of the doctor, Benca asked, “You didn’t ask any further questions except for medical after the initial information?”
“Correct.”
Smith redirected, “Do you treat a lot of gunshot wounds?”
“Yes sir.”
“Do you know if either had powder burns?”
“On the younger gentleman I saw powder burns.”
The doctor was dismissed.
Smith called a latent fingerprint examiner with the Arkansas State Crime Lab to the stand. She is responsible for finding latent, or hidden, fingerprints left by chance or accident on an object.
She testified she tested two empty shell casings, a projectile, the gun, and a rubber glove used by Meli. “I didn’t find any prints on anything submitted. It’s not unusual or uncommon to not find latent prints on weapons and ammo. Scientifically we don’t know why, we believe in manufacturing items are made moisture or corrosion resistant; 98 percent latent prints is water. That doesn’t mean the gun had or hadn’t been wiped down.”
Defense Attorney John Wesley Hall cross-examined the fingerprint specialist. “Older model guns don’t tend to be moisture resistant, correct?”
“I’m not a firearms expert. It is possible to get prints from clip since it is kind of protected.”
Hall, “You can’t tell if the gun was or was not wiped down?”
“No. There were no smudges, but it’s not uncommon to find partial prints, but nothing was found.”
She was excused from the stand.
Smith called a firearm and tool mark examiner with the crime lab to take the stand.
“What is it you do?”
“I look for tool marks made by a tool onto some sort of surface not as hard as tool.
“A bullet isn’t as hard as the gun itself, and gets lines and grooves from the barrel. I checked for this case, one 22 short caliber cartridge, one 22 cal short cartridge, one expended case, one expended case, one 22 cal pistol, one damaged bullet, one damaged bullet. To check to see if fired from the pistol. We were able to determine they came from the weapon. One was unable to determine whether fired or not through pistol, one I was able to determine.”
Hall cross-examined. “If the gun misfires, how does the shooter get the bullet out?”
“They have to pull back manually, with two hands.”
(Jury shown how to eject a bullet.)
The tool mark examiner was dismissed.
Smith called a third crime lab specialist to the stand. “What is it you do in your position at the lab?”
“I am a chemist and a serologist, which is the study of bodily fluids.”
The serologist examined five cotton swabs (from samples at the crime scene) and a paperweight. “They were tested for blood. All items had blood on them.”
She was excused.
Smith called a forensic DNA examiner with the crime lab. “What did you do in this case?”
“I worked on samples for the Olmstead case, testing the blood samples to see if I could get a match.”
The DNA examiner was supplied with DNA samples from Tom and Dwight. “Every blood sample belonged to Tom Olmstead. The results were one in 511 trillion the DNA was from Tom Olmstead. None of the samples did not match Tom Olmstead. This is considered scientific certainty.”
The third and final crime lab witness was dismissed.
Smith called Tom’s youngest son Waren Olmstead to the stand. “Have you ever heard your dad make threats to Dwight’s health?”
“No.”
“Have you ever heard Dwight make threats to your dad’s health?”
“Yes. I believe I have heard him say he would kill dad, mom, and himself before all this mess started, arguments and things. Not sure more than one occasion where Dwight said that. It was all pertaining to the business, over money.”
Benca asked, “To the best of your knowledge you heard those threats a couple of years ago?”
“Yes.”
“Have there been no good feelings since the threats were made?”
“Not that I was witness to.”
Waren was dismissed and Joanne Olmstead was called to the stand.
Smith asked, “Is there a history of getting along and not getting along (between Tom and Dwight)?”
“They got along except the last six to eight years.”
“What has lead to not getting along?”
“Money, not enough and too much.”
Joanne testified that at the last board meeting (2005) for Olmstead Funeral Home, Dwight said, “he would kill Tom and I and then himself and fired us.
“Tom talked back, Dwight then said he would kill us and then himself. That was the last time I was at a board meeting. He never made threats to me before but had to his father.”
She recalls the night before the shooting. “He came to me the night before the shooting. The last time I had talked with him was July 2006. He came to the house because I had a heart attack and four bypasses and I was at home.
“He had not made any contact and he called to see if he could come over, Tom said of course, we talked, he appeared to try to make amends. He told us he knew what trouble he had caused and asked for forgiveness, we said yes. He stayed about an hour.
“He and Tom made an agreement to meet the next morning because there were three funerals going on, Dwight said be there in the morning. We discussed the business had got into bad shape financially. I felt he was genuine.”
After Joanne’s testimony, the state rested their case just before 3:30 p.m. March 11.
The defense’s first witness was Cleburne County Sheriff Marty Moss.
Attorney John Wesley Hall asked Moss if he remembered February 16, 2007. “Yes, I was at the funeral home for a visitation earlier in the day. Before I left I thought I would say hi to Waren while there.
“I walked into a very uncomfortable situation, Tom and Dwight had some type of issue. Both were upset, Tom more than Dwight. I wanted out. I was there briefly.
“I found out about the shooting the next morning and responded to the funeral home.”
Hall, “Did you go to the hospital?”
“I was there with Detective Meli. I knew there would be a crowd and wanted to help with situation.”
Moss was dismissed and Pat Hosaiger, a secretary at Olmstead Funeral Home, was called to the stand.
“Did you have conversation with Tom since shooting,” Hall asked Hosaiger.
“Yes, but I don’t recall many details.”
“Did he say he shot Dwight?”
“No.”
“Did he say Dwight shot him?”
“Yes.”
“How many times did Tom talk to you about how this occurred?”
“When it first happened, he came back down that afternoon after leaving the hospital, and told me he had been shot been hit in the head by a paperweight. He described being shot by Dwight but I don’t remember all the details.”
“Did you talk with Dwight?”
“Yes, he gave a different version. He never said he was suicidal and I don’t know if he threatened his life. When arguing it would be back and forth, over money and the business, how to run the business.”
Hosaiger was dismissed and Hall called Fred Clark to the stand.
Hall asked Clark about Tom buying a gun. “Do you remember Tom getting a gun from Roy Walters?”
“I was there when they talked about it. Tom asked for a small gun, but I was not there when he got the gun.”
“Do you know if Tom was shown how to use it?”
“Not to my knowledge, Tom did ask Roy how to use it. Still did not see the gun or hear anything else.”
“Do you know when he bought the gun?”
“About two or three weeks before (the shooting), but I don’t know an exact timeframe.”
“Did it click after the shooting that it may be the same gun?”
“Yes it did and Roy was very upset over it. Roy distanced himself from Tom.”
Smith asked Clark about a gun pouch Tom had purchased in October of the previous year for the gun in question. “The pouch was bought in October. Are you certain about the timeframe you mentioned?”
“It could’ve been longer than the time I thought when he bought the gun. It’s an age thing.
“Tom made comments about Dwight that was complimentary.”
Clark was released and longtime Olmstead embalmer David Jelks was called to the stand.
“Did you ever have a conversation with Tom about a gun jamming,” Hall asked.
“Tom was going over with me what happened. He said if you ever want to un-jam a gun, don’t aim it at your leg; if it goes off it hurts like hell. He said he walked into the room and Dwight put a gun to his head.”
“Did he ever say anything else about shooting himself?”
“No. We spoke approximately 10 days after shooting at the funeral home.”
Smith asked, “Didn’t Mr. Olmstead tell you about Dwight attacking him?”
“Yes.”
Jelks was released.
Court recessed Thursday.
Hall called Dwight Olmstead to the stand.
“What did you and your dad do before this?”
“Olmstead Funeral Home.”
“February 16, 2007, what did you do?”
“Went to see my mother and when I was there mom and dad told me they wanted me out of the funeral home and out of town or dad would bankrupt me and tell smut about me throughout town if I didn’t leave town.
“Went outside, got in the car, Tom kept telling me I bankrupt the business, and leave or they would destroy me. I went home, upset.
“Went to the funeral home to open 7:40 or 7:45 a.m. for a funeral later in the day. I unlocked the door to enter, in process of turning on lights to open business when I heard door open where I came in.
“I walked into the lobby, heard someone and saw my father, he didn’t say anything until I got back into the business office. I told him we had a funeral that day and he asked if there was anything he could do. I said no. He told me he and mom were taking it back over, and started it back like the night before, leave the building and told me to get out of town.
“He was irate and told me to leave, get a moving van, I told him dad please don’t do this, I thought we had an agreement, he said no.
“I walked away because he was still yelling at me. “I told him I had to get things ready. He did not follow me. I went back to my office after a little time, after going back the same way. I did not see Tom and thought he was gone.
“I walked back into the private office, I’m walking in there and as I passed the desk, dad stepped out from the display room, comes up with a gun, said ‘What’s it going to be either give up your shares or I’m going to take you down’.
“The gun was always in his hands, I lunged at him and tried to put the gun away, I was shot in the lower abdomen. I don’t recall if I got my hand on the gun or not. We hit a wall, I still had a hold of him and we fell back onto a desk, he was on top of me over the desk.
“I was reaching around and I think I picked up the paperweight to defend myself, I don’t remember hitting him. I had my left hand on the gun.
“I have never seen the gun in my life. Rolled off the desk, both of us, had a hold of each other.
“Our feet got tangled up and I fell back into the arrangement room. My hands were at my side, I tried to catch myself, I was laying on the ground and couldn’t get up, I felt like someone was standing on my feet, I couldn’t get up, he was standing at my feet. He was pointing the gun at me and tried to shoot me.
“I was trying to get up, trying to kick him, trying to defend myself any way I could, I heard another shot, didn’t know if anyone was hit. I was able to get up to go into another office and called 911 and told them I needed help. I heard a door rattle and didn’t know if someone was trying to get in.
“I ran out one of the doors of the funeral home to Haile’s Exxon to try to get some help.
“There’s a little fence that separates the properties and I felt like I was going to pass out. I made it to Haile’s and told them my father had shot me and I needed some help. I was trying to hide and to protect myself. I never looked behind me.”
The prosecution and defense asked more questions while Dwight was on the stand.
The defense rested later in the day and the jury deliberated on the verdict five and a half hours before returning with their decisions. They took 30 to 45 minutes to determine the sentence.
(During Tom’s (and Dwight’s) testimony, events that may have lead to the shooting were discussed including finances of the funeral home, money borrowed to pay funeral home bills, and many other business and personal matters that happened over a long period of time.)
Mountain View, Ark. —
