Smyrna, TN (WSMV) – The grandfather of the young boy who died in a hot car in Smyrna Thursday is speaking to News 4 about the boy’s death.
Daylin Palmer, 3, was left in a hot car for two hours Thursday afternoon when temperatures in Smyrna reached 92 degrees, with a heat index of 102 degrees. Daylin died of heat stroke. His father, Dylan Levesque has been charged with aggravated child abuse and neglect, a Class A Felony.
“He was left in the backseat of the car while his father went inside and went to sleep,” said Timothy Palmer, the boy’s grandfather. “From what we’re hearing from his mother—[Dylan] had been up for a couple of days. [Dylan] had mental issues and a very bad drug problem. He went inside, passed out and he killed my grandson.”
During his phone interview with News 4, Palmer repeatedly raised the question of why Levesque had not been charged with murder in the death of young Daylin.
“He murdered my grandson, but he’s not charged with murder. He’s charged with child endangerment. He has a $50,000 bond which means someone could go pay $5,000 and he could be out on the streets tonight,” said Palmer. “How is that possible? How is it not murder? How can the state not charge him with murder?”
Former prosecutor David Raybin is one of the leading criminal defense attorneys in Tennessee. He is not involved in the case but spoke to News 4 for legal background concerning cases like this. He says a prosecutor’s decision on how to charge a person comes down to a legal term known as “intent to kill.”
"The statutes are designed to protect children and because the government can't always prove there was intent to kill, you want to have maximum protection for little kids to keep this sort of thing from happening,” explains Raybin.
With a murder charge, prosecutors would be forced to prove Levesque intentionally left Daylin in the hot car. Under Tennessee law, prosecutors can seek the same punishment as 2nd degree murder for Levesque under the child abuse and neglect statutes, without having to prove an intent to kill.
"It's terrible, they literally cook to death and they die of the heat. And that kind of neglect under Tennessee law carries the same punishment as murder," says Rabin.
The maximum punishment for both 2nd degree murder and aggravated child abuse and neglect is a prison sentence of between 15 to 25 years in prison, without the possibility of parole.
"Maybe there were drugs involved, maybe there was alcohol involved, we don't know at this point," said Raybin. "When a person is intentionally debilitated by drugs, alcohol or not enough sleep, then that person acts irresponsibly and has degraded themselves to where they can't take care of the child. That's the kind of case where a prosecutor would push for a [maximum] sentence like [15-25 years]."
Levesque faces two charges, aggravated child abuse and aggravated child neglect. Raybin explains Levesque cannot be found guilty of both charges. Ultimately, the jury will decide which charge is better suited for the case.
"We all need to understand how easily this can happen,” cautions Raybin. “Even if we don't have drug issues or mental issues and we get enough sleep, we can be forgetful. We've all left things in our car, but a baby is the last thing you need to leave in a car."