In Broad Daylight (Crime Rant Classics)

by HARRY N. MACLEAN

  McFadin also asked Romaine a routine question: Had he ever been convicted of a felony? No, Romaine answered, he had not.

  O’Connor’s and Smith’s affidavits rebutted the time periods perfectly, although they contained some slight inconsistencies. On September 29, O’Connor signed a handwritten affidavit stating that on the day in question he had been working as a carpenter at Ken McElroy’s house and that Ken McElroy was “at his home from 5:10 P.M. and left with Alvin Smith and myself at 5:55 or possibly 6 p.m. Mr. McElroy was driving his own station wagon.” After his signature O’Connor added that he remem-

  bered the time because they started picking up their tools a few minutes after 5 p.m. On November 9, O’Connor executed another statement, this one typed, in which he stated that McElroy arrived around 5:10 in his green Dodge truck and asked them to fix a flopping tailgate. He and Smith talked to McElroy, fixed the tailgate, and all three left around 6 p.m. Smith’s statement, also signed on November 9, said the same thing, adding only that his record book indicated that they billed McElroy for services from 8 a.m. until 6 p.m.

  Next, McFadin, looking under every stone, found that Romaine had been convicted of common assault some twenty-four years earlier. The charge stemmed from an adolescent fist fight, and Romaine had paid a $10 fine. He had completely forgotten about it.

  To no one’s surprise, Judge Wilson disqualified himself from the case on his own motion. Wilson told a prosecuting attorney in another county that McElroy had threatened to burn his barn down, and that not very long after the threat, the barn had burned down. Wilson was terrified of McElroy. In a previous case, before Wilson had disqualified himself, deputies had brought McElroy into the courtroom for a hearing and left him alone. Wilson motioned a lawyer over and said in a panic, “He’s in here all by himself! Where are the deputies?” Wilson scurried from the bench, and in a minute the courtroom was crawling with bailiffs and deputies.

  With the defense in relatively good shape, McFadin, relying on the tried-and-true principle that delay would always benefit the defendant, sought to have the trial continued. He succeeded in having the case transferred to Gentry County and the original trial date of February 14 continued to April 25. That date was continued again to August 2, 1977, when it finally went to trial.

  McElroy used the time to go after witnesses. When the visits first began, Romaine didn’t know what to expect; he spent several nights sitting in his bathroom with a rifle in his lap, waiting to shoot McElroy if he came through the door. The Henrys’ bedroom faced out on the road, and many nights after the family was in bed, Romaine and his wife awakened to find a bright light flashing around on their bedroom walls. Romaine would peek out the window and see the green Dodge with a hand-operated spotlight parked on the side of the road. Sometimes Romaine or his wife would look out the door in the middle of the day and see McElroy down the road a hundred yards, standing alongside his

  pickup, fooling around in the back or under the hood. Suddenly, the truck would start up, the engine would race, and McElroy would tear out in a spray of gravel. Other times, the truck would just cruise by the farmhouse very slowly, several times in a night, the lights off and the engine rumbling loudly. McElroy might come around every day for a week or stay away for ten days at a time. The Henrys’ closest neighbor, who lived three-quarters of a mile away, grew accustomed to the sound of scrunching gravel as McElroy drove back and forth in front of Romaine’s house.

  Romaine estimated that McElroy visited him on at least one hundred separate occasions. He figured McElroy was trying to provoke him into doing something foolish, such as coming after him with a gun, or to intimidate him into not testifying. Romaine never considered backing down. He complained to the sheriff, who said he would talk to McElroy. The sheriff did drive by a couple of times, but never when McElroy was there.

  One morning, a week or two before the trial, Romaine couldn’t start two of his tractors. On investigating, he determined that someone had put sugar in the gas tanks. He called the sheriff, who sent the fuel filters to the lab, which confirmed the presence of sugar. But without proof that McElroy had put it there, the sheriff said he couldn’t do anything.

  Danny Kinder, who had told his story to the prosecution, feared for his life and the lives of his wife and children. Several times, he saw McElroy drive slowly by his house with a shotgun hanging out the pickup’s window. Kinder also got word from various sources that if he testified at the trial and McElroy was convicted, he was a dead man. When he was working, he worried about his wife and kids at home. He asked for police protection but was told that it would be impossible. Nobody came around and asked how he was doing or whether he needed any help; he was on his own. Eventually, deciding that he couldn’t stand up to McElroy alone, Kinder took his family and moved to Florida.

  In the fall of 1976, Prosecuting Attorney Fraze was elected magistrate to replace Wilson, who had been elected circuit judge. The new prosecutor, Amy Davis, sent Short Linville a letter requesting that he come into the office and talk with her about the case.

  To hell with that, Short thought, she can come talk to me if it’s that important. Finally, the sheriff came to his house and asked what he had

  seen. By then, Short had all but decided he didn’t want to get involved in the case. He had been on the witness stand once before, and had gotten worked over pretty badly. When he saw the sheriff’s tape recorder running, Short became vague about when he saw McElroy barreling around the corner.

  “Oh, it was around 5:30,” Short said. “But it could have been a half hour either way.”

  Romaine came by one day to see him, and demanded, “Are you going to testify at my trial?”

  “I haven’t been asked,” said Short, “and I don’t even know that you’ve been shot.”

  “Here, I’ll show you,” Romaine said, pulling up his shirt and revealing a huge, ugly scar across his stomach.

  “OK, now I know you been shot, but why were you shot? Nobody shoots somebody without a reason.” Short had heard the rumors that McElroy and Romaine had been involved with the same woman.

  “Well, there wasn’t any reason, he just came up and shot me.”

  Short figured, To hell with him. Why get in all that trouble if the man wasn’t going to tell the truth?

  This was Amy Davis’s first big trial. She was graduated from law school in 1975 at age thirty-four, and ran for prosecuting attorney in Nodaway County the next year. She knew McFadin and McElroy from having clerked for Fraze when he was handling the rape, molestation, and arson cases. She had poor opinions of both men.

  Davis was confident and the cops were hopeful—with Romaine’s eyewitness identification, the case should be a winner. Romaine, after all, had known the accused all his life, and the shooting had occurred at point-blank range. What possible defense could there be?

  In preparing her case, Davis came to understand how terrified people really were of Ken McElroy. In addition to Short Linville backing off, the two other witnesses who had seen McElroy on the road close to the scene of the crime simply refused to testify. Davis sensed their raw, mortal fear that McElroy would kill them if they came forward. No threats or appeals to conscience could change their minds.

  McFadin had previously told Davis he might have two alibi witnesses, but when she had pressed him for their names and addresses, he had said

  he couldn’t locate them. On the day of the trial, McFadin pulled the two carpenters out of his hat. In Missouri, as in most states, the law requires both sides to disclose the names of their witnesses in advance of trial so that their depositions may be taken and, if necessary, investigated. The court may prohibit the testimony of witnesses who have not been previously disclosed, or it may grant a continuance in order for the opposing side to take their depositions and prepare a rebuttal. When Davis saw the two carpenters on the morning of trial and learned they were defense alibi witnesses, she objected vociferously to their testifying. To her surprise, the judge overruled her objection, refused
a continuance, and said she could instead interview them on the spot. In talking to them, Davis became convinced their stories were concocted. While there was lots of information in the notebook about the day of the crime, little was written in the surrounding pages. Davis was furious with McFadin and the judge. Given a couple of weeks, she felt sure she could have broken the alibi.

  From the very beginning, the trial seemed strange to Davis. During her opening statement she noticed that several of the jurors were looking away from her. As the trial progressed, she realized that the rest of them had also stopped looking at her, almost as if she were invisible. She felt as though everyone but her knew what was happening, as though the outcome were predetermined, and they were just going through the motions. A friend of hers in the gallery, a reporter, noticed the same peculiarities.

  As the first witness, Romaine firmly identified McElroy as his assailant, and described the shooting in detail. On cross-examination, McFadin couldn’t shake Romaine’s testimony, but he hammered him unmercifully over his failure to admit the assault charge in his deposition. If a witness had lied previously under oath, McFadin implied, why should he be believed this time?

  The prosecution’s second witness was Danny Kinder. His marriage had broken up (in part, he felt, because of the stress over the shooting), and he had returned to Clarinda, Iowa, right across the border. In Davis’s view, he was a reluctant witness. On cross- examination, McFadin first got him to state unqualifiedly that he saw McElroy at 5:30. Then the lawyer played an old game. “Isn’t it possible,” asked McFadin, “that it could have been ten minutes later? Isn’t it possible?” After getting Kinder to admit that it was possible, McFadin got him to admit that it could have been fifteen minutes later. After repeating this process several times,

  McFadin said that Kinder had, in effect, changed his testimony and was, therefore, an unreliable witness and not worthy of belief.

  Encountering McElroy in the hallway and observing him at the counsel table, Davis found his menacing attitude unnerving. He acted as if the consequences didn’t mean anything to him; prison and punishment didn’t apply in his case. His eyes seemed to say to her, “I’ll get away with it, and then I’ll come after you.” She wondered if he knew where she lived.

  McElroy’s testimony was firm and consistent: He had been at home that afternoon until 6 p.m. and hadn’t shot anybody.

  Davis could not shake him on cross-examination, partly, she would admit to herself, because she felt intimidated by him. She also thought she saw hand signals coming from McFadin’s associate to McElroy during the cross-examination.

  By the time the evidence was in, Davis had become almost paranoid. She felt something was very wrong, but she couldn’t get a fix on it.

  The temperature in the jury room was a humid 100 degrees. Initially the jurors disagreed on a verdict; two men argued that McElroy was innocent, while several women felt he was guilty. After further discussion, a consensus developed that, while McElroy may have shot Romaine, he had to be found innocent based on the evidence presented. The jurors couldn’t ignore the fact that two independent witnesses placed McElroy at his home at the time of the shooting. A few jurors couldn’t figure out whom to believe, and the way they understood the law, the defendant won a draw. After two hours of deliberation, the jury voted unanimously for acquittal.

  When the clerk announced a verdict of “not guilty,” Davis felt certain that the jury had been tampered with. She was too angry and upset to talk to the jurors, but she seriously considered investigating the matter. She knew, however, that she would have trouble getting the resources for an inquiry. More important, she knew law enforcement would not be able to protect her from Ken McElroy. She let the matter drop. (She was defeated for reelection by Robert Nourie in 1978.)

  When the verdict was read, Romaine noticed McFadin wink and anile at his client. McElroy looked over at Romaine with a half-grin, half-sneer on his face.

  After the verdict McFadin came up to Kinder and in Kinder’s words, apologized for his cross-examination and explained that he was just a hired gun. In the hallway, McFadin genially told Romaine the same thing, “I’m just a hired gun. I work for whoever pays me.”

  Short Linville received a lot of criticism from his friends and neighbors. If he had testified as to what he saw, they told him, McElroy would have gone to jail. But Short stuck by his guns: If Romaine wouldn’t tell him what had really happened, he wouldn’t testify on his behalf.

  Skidmore residents reacted to the acquittal with disbelief and amazement. How could Romaine not know who shot him? Why would a jury believe Ken McElroy and a couple of guys from Iowa over Romaine and his hired hand? Was McElroy totally immune from the law? Could he roam the countryside blasting people with a shotgun and walk away a free man?

  Romaine took the verdict philosophically. He had told the truth, but if the jury chose to believe someone else, that’s just the way it was. He felt the matter was done and over with, and now he could get on with his life. He was mistaken. One October afternoon after the trial, during harvest, Romaine was returning from the elevator in Maitland, where he had taken a load of beans, when he met McElroy coming the other way. He watched in his mirror as McElroy made a U-turn and began following him. When Romaine turned into his field, McElroy stopped at the gate. Romaine had a good idea what was going to happen if he got out of the truck, but he stepped out anyway. He saw McElroy lift something up to his shoulder, and, a second later, heard the crack of a high-powered rifle and a bullet whiz by about two feet over his head. Romaine climbed into his combine, cranked it up, and started running it down a row of beans. If he was going to die, then he was going to die.

  After about ten minutes, McElroy left without firing again. Romaine didn't even consider reporting the shooting; if a jury wouldn’t convict McElroy for shooting him in the stomach and face, it sure as hell wouldn’t convict him for firing a rifle into the air.

  To McElroy, the acquittal was a triumph. He knew, and he knew

  everyone else knew, that he had shot Romaine Henry. Everyone

  also knew that he had intended to kill Romaine. McElroy even

  laughed and joked about it, rubbing it in, “I thought I had the

  bastard shot deep enough that he’d die before he got home!”

  18

  After their marriage in 1974, Ken and Trena moved to Cameron, Missouri. In April 1975, Trena gave birth to her second child, a girl named Oleta. Not long thereafter, Ken and Trena and their two children moved back to the farm on Valley Road. The old house, with its faded wood siding and peaked roof, had two small bedrooms upstairs, and a kitchen, small dining room and living room downstairs. The house had no electricity or running water, an outhouse stood at the end of a path leading from the back door.

  Ken was determined to provide a better life for his family, and he had the cash to make it happen: He told friends that he was earning $10,000 to $15,000 a pop burning buildings for the insurance money. At first, he intended to tear the house down and start over. But Mabel, who was living with Timmy in the small house down the road, objected because she had raised her children in the old house. So Ken set about remodeling it. He tore up the linoleum floor and laid nice carpet throughout the house. He rebuilt and paneled the walls and put in a new kitchen with large cabinets. After having the house wired and plumbed, he installed a bathroom downstairs. He added a pantry and converted the dining room into a third bedroom. He reshingled the roof, put on storm windows and constructed some outbuildings. To Mabel, the house no longer seemed like hers.

  McElroy’s four daughters by Sharon visited the farm frequently. After one vacation, three of them (all but Teresa) informed their mother that they wanted to live with their father. Sharon resisted for a while, but

  eventually gave in. By 1977, the household consisted of Ken, Trena, Derome (formerly Jerome and Jeffy), Oleta, Tammy, Tina, and Debbie. The final addition would be Reno, born to Ken and Trena in 1978.

  Trena lived an isolated exis
tence on the farm. Ken was gone more than he was around. He would take off for ten or twelve days at a time, then show up unannounced. She stayed home, kept, house, cared for the kids, and did as she was told. She knew he was seeing other women, but she felt there was nothing she could do about it. Trena lost contact with her family and friends; her mother and Ronnie had fled to the Ozarks, Ken wouldn’t allow her to see her “grandmother” (Ronnie’s mother, Sue McNeely) or her Aunt Brenda (Treva’s sister), and Alice, whom Trena considered a friend, had moved to St. Joe.

  When people she had known before ran into her, they noticed that she had changed; the sweet blond with the beautiful complexion and pretty blue eyes had gotten rough; her soft smile was gone, replaced by a hard, flat look; her mannerisms seemed tough, like a feminine version of Ken’s. One former classmate, to whom Trena had always said hello with a shy smile in high school, passed her on the street in the late seventies, and she looked right through him.

  Vicki, Trena’s best friend, worked as a secretary in the sheriffs office and saw Trena every time the cops brought Ken in to be processed after an arrest. Trena would come over to her, and they would go down the hall and around the corner to talk, because Trena didn’t want Ken to know she was friends with anybody in the sheriff’s office. The women talked about their kids and what they were doing, and Trena would say, “He’s good to me and he supports my kids.” But when Trena was with Ken, she acted tough and mean, like she didn’t know Vicki.