Appellate court: Jury can hear polygraph in Mouseketeer’s homicide
A state appellate court has ruled that a local jury can hear previously excluded pieces of evidence surrounding the death of 1950s child actor Dennis Day.
A recorded polygraph interview in which homicide suspect Daniel James Burda allegedly made key admissions about the last time he saw Day alive, and a 911 call in which Day reportedly tried to evict Burda from his home prior to his July 2018 disappearance are among key reversals in an opinion filed Sept. 8 in the Oregon Court of Appeals.
Day’s niece, Janel Showers, of Clovis, California, described the court’s findings as a welcome win after a host of setbacks and difficulties. She recounted years of frustrations surrounding her uncle’s death, including a botched homicide investigation that allegedly culminated with Phoenix police unwittingly stepping on Day’s body more than once.
“It’s a small win, but we will take it,” Showers said. “It’s something positive and something we can move forward with.”
Day was best known for his role in the 1950s as a founding cast member of Walt Disney’s “Mickey Mouse Club.” He and his husband, Henry “Ernie” Caswell, had lived in Southern Oregon from the late 1980s. He was last seen alive July 15, 2018.
Cadaver dogs found Day’s body under a pile of clothes April 4, 2019, inside his Pine Street home, nearly 9 months after Day had been reported missing. During that time police searched the home more than once without finding the body.
According to Showers, police body cam footage showed Phoenix police unknowingly stepped on the body at least three times.
Because of the condition of Day’s remains, investigators were unable to determine a cause of death. Showers is among the co-defendants suing Phoenix police because the mishandled evidence limited the homicide charges the Jackson County District Attorney’s Office could press.
“We don’t know if he went quickly, and we never will,” Showers said.
The family’s civil trial against Phoenix police is scheduled to begin May 16 and last four days.
Burda, 39, faces felony charges in Jackson County Circuit Court of second-degree manslaughter, criminally negligent homicide, first-degree criminal mistreatment, second-degree abuse of a corpse and multiple aggravated identity theft charges. The charges accuse Burda of physically attacking Day, hiding his body underneath 100 pounds of clothes and making numerous transactions with Day’s bank card.
Burda was arrested in July 2019, but Judge Lorenzo Mejia’s ruling on the admissibility of wide categories of evidence in Burda’s case put the homicide case on pause for more than two years.
The appellate court heard arguments from Assistant Oregon Attorney General Lauren Robertson and Deputy Public Defender Neil Byl over what evidence a jury could hear. Also submitted to the court were briefs from state Attorney General Ellen Rosenblum and state Solicitor General Benjamin Gutman.
In July 2020, Mejia excluded categories of evidence that included reported prior verbal and physical altercations between Day and Burda, a 911 call Day reportedly made prior to his disappearance seeking to evict Burda, and evidence of Burda’s drug use.
The state appeals court sided with Mejia on the drug use evidence, but reversed the 911 call and other evidence the District Attorney’s office sought to prove that Day’s eviction efforts motivated the homicide.
“In sum, we conclude that the trial court correctly excluded evidence of defendant’s drug use and statements unrelated to defendants’s refusal to leave the victim’s home but erred in excluding evidence relevant to defendant’s motive,” the appellate court memo states. “Therefore we reverse the order in part, remand and otherwise affirm.”
The state wants to present to the jury a theory that Day died during a struggle while attempting to evict Burda. Prosecutors believe Burda either pushed Day and left him to die, or there was another type of struggle.
Mejia threw out neighbor testimony of earlier altercations between Day and Burda as “too remote in time” to be relevant, and Day’s 911 call regarding eviction was “highly prejudicial.”
Also overturned was a polygraph examination in which Burda reportedly made admissions about creating the pile of clothing under which Day’s body was found, being in the same room as the body while Day was a missing person, cleaning the room with chemicals, closing a bedroom door and opening a window to “air out” the room.
Mejia ruled in 2020 that the entire interview had “no value at all for the state.” The appellate court disagreed, determining the evidence points to a “common motive.”
Burda’s next court appearance in the homicide case is scheduled for Sept. 26.
He’s also scheduled to stand trial in October on a felony charge of first-degree criminal mischief accusing him of damaging an ankle monitor last November while on pretrial release.
Showers said the wait for an appeal in the pending homicide case hasn’t been easy.
"The delays are downright excruciating,“ Showers said.
They’re even harder on her mother, Day’s sister Nelda Adkins, according to Showers.
“It is extremely hard on my mom,” Showers said. “She has mentally declined because of the not knowing what happened to her brother.”
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