The Joplin Globe, Joplin, MO

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June 19, 2013

Defendant chooses not to testify in Miami murder trial

MIAMI, Okla. — Donna Shirley testified Wednesday that Dustin Boggs had blood all over his hands and clothes when she encountered him in the parking lot of a Wal-Mart store the afternoon Danyel Borden was killed.

“I remember it scared the crap out of me,” Shirley testified at Boggs’ trial on a first-degree murder charge.

Shirley said her friend Arturo Council met her and her daughter in the lot a short distance from her car and urged her not to make a big deal about its rear windshield being broken out. But the warning failed to prepare her for the sight of Boggs.

She said he was sitting in the front passenger seat covered in blood, and she recalled seeing blood on the glove compartment as well. Boggs appeared to be in a trance, she said.

“I don’t remember anything about the ride home,” she said. “I don’t remember anything past the blood on his hands.”

Despite the potential harm that segment of her testimony may have caused the defense, Shirley was one of two witnesses called by attorneys for Boggs, 25, who is accused of fatally stabbing and shooting Borden, 21, on June 14 of last year. Boggs chose not to testify in his own behalf.

Defense attorney Andrew Meloy queried Shirley about changes in the accounts of the day in question that she provided law enforcement. Her initial account to an agent with the Oklahoma State Bureau of Investigations neglected to mention that Council, who goes by the nickname “Preacher Man,” had accompanied her and her daughter when they took Boggs to the Cardin area before going to Wal-Mart.

It was only later, after Council changed his story and admitted to investigators that he had been with Boggs and Borden when she was killed, that Shirley acknowledged that Council was with them. She said her memory of all that happened that day and what she told investigators was affected by the post-traumatic stress disorder she suffered, and she suggested that the change in story may have been because of her having “calmed down” by her second interview with the agent.

Boggs’ attorneys have tried to convince jurors that Council, the state’s key witness, is a more likely suspect than their client in Borden’s murder. Council had testified Tuesday that while he witnessed the killing on a road outside Miami, he took no part in it and was kept from coming to Borden’s defense by Boggs.

Joseph Orcutt, a DNA criminalist with the OSBI, testified Wednesday that Borden’s blood was detected on both men’s clothes. The DNA from blood on Boggs’ shoe and on a pair of jeans matched Borden, with just a 1-in-795 quintillion chance of those samples being a match with anyone else. The DNA match with Borden of blood found on Council’s T-shirt and jeans carried the same odds, the criminalist said.

Orcutt found another DNA match to Borden on a swab of the 9 mm pistol belonging to Shirley that is believed to be one of the murder weapons, as well as a swab from the inside frame of the back passenger-side door of her car. He found a partial profile match to her on a swab of the front floor mat of the car on the passenger side.

DNA testing of a knife recovered from Shirley’s car turned up mixtures on both the blade and handle that could not have come from either Boggs or Borden. Council, however, could not be excluded as a potential donor to the DNA mixtures on the blade and handle, Orcutt testified. He said there was a 1-in-44 chance that he was a donor in the blade DNA mixture and a 1-in-137 chance with respect to the handle.

Joshua Lanter, a deputy state medical examiner who performed the autopsy, testified that Borden died of both a gunshot wound to the head and sharp-force injury to her neck. The gunshot struck her in the left cheek from an estimated distance of one to two feet, with the bullet severing a carotid artery and coming to rest at the base of her skull, which he deemed to be a fatal injury. Lanter was able to retrieve the projectile, which was matched to Shirley’s gun.

Lanter testified that Borden also had multiple sharp-force injuries to her cheek, neck, chest, upper arm and hand. Most significant was a deep stab wound to the left anterior side of her neck that severed a jugular vein and also would have been fatal, he said.

Meloy focused much of his questioning of Shirley on the gun that killed Borden. She reported her car stolen and her gun missing after returning home from Wal-Mart with her daughter, Council and Boggs. Council testified that Boggs took off in her car without her permission when they took her groceries inside. Shirley acknowledged under questioning by Meloy that she had been charged with filing a false police report.

Meloy asked if she knew where her gun was that day, and she said it should have been on a shelf near her back door where she normally kept it. She said she never carried it in the car except when she went camping. But she also conceded that perhaps it was left in her car from camping.

Council had testified that he first saw the gun when he was ordered back into the car by Boggs after Boggs had been on top of Borden, apparently stabbing her in the roadway. He said Boggs climbed into the front passenger seat and had the glove compartment open and the gun in his hand by the time he slipped back into the driver’s seat.

He also testified that Boggs returned to Shirley’s house later that day, after having taken her car, and knocked on her doors. Council said he did not answer out of fear of what Boggs’ intentions might be. He told the court that he had watched Boggs walk into Shirley’s garage before leaving. Council called police a couple of days later and reported finding the gun wrapped in a sweatshirt inside the garage.

The second witness the defense called was Shirley’s ex-husband, who testified that on the day of the murder, she had called him and told him that her car had been stolen from the Wal-Mart lot and that her gun was in it.

Trial to continue

WITH THE PRESENTATION of evidence and testimony finished by midafternoon Wednesday, District Judge Robert Haney sent jurors home for the night. Proceedings in the trial that started Monday are expected to resume today with jury instructions and closing arguments.

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