A judge is expected to decide in January whether a Poplar Bluff, Mo., man should stand trial for murdering his stepgrandfather whose unresponsive body was pulled from their burning home in June.
Accompanied by his attorney, Danny Moore, Brett Wade Payne, 29, appeared before Associate Circuit Judge John Bloodworth Monday afternoon for a preliminary hearing on the Class A felonies of first-degree murder and first-degree arson.
Bloodworth heard testimony from four witnesses, including Della Moore, an investigator with the State Fire Marshal's Office.
Danny Moore sought to strike her testimony as she had "no training" and her experience and education did not "meet the standard" of being an expert witness.
Butler County Assistant Prosecuting Attorney Bill Gresham said Della Moore was qualified to testify and asked to submit a brief in support of his position and bring in other fire investigators who worked the case to testify.
Danny Moore also will submit a response brief, and the case was reset for 1 p.m. Jan. 22 for the presentation of any further evidence.
In his testimony, Butler County investigator Brandon Lowe said he, along with Chief Deputy Wes Popp, arrived at the 150 Mozart Lane residence at about 7 a.m. on June 4.
The Butler County Fire Department and Della Moore, he said, were on the scene, but the fire was out.
Lowe said he began photographing the inside of the residence.
"I seen it had been burnt on every level of the two-story house, (with a) basement," Lowe said. "There had been some sort of fire on each level of the residence. They appeared to be separate (fires)."
No one, other than firefighters and Moore, was at the house, Lowe said.
"We were notified by Deputy (Marcus) Kirby, who told us a male subject had been transported to the hospital," as had Payne and his grandmother, Freeda James, Lowe said.
On cross-examination, Lowe said, he had no fire training and did not know the "legal definition" of fire.
Lowe, who indicated he was at the scene for about 45 minutes to an hour, confirmed he was not offering an "opinion as an expert" regarding the fire.
Kirby testified he and Deputy Adam Younger were sent to the Mozart home between 3 and 4 a.m. on June 4.
"The fire department already was on the scene, making entrance ... into the basement through a glass door. I believed they had to force it," said Kriby, who indicated firefighters pulled Edward James from the basement.
"He was not breathing at the time" and was "unresponsive," with no pulse, said Kirby, who performed CPR on the man for about 20 minutes, but he still was unresponsive when emergency-medical-services personnel arrived.
Kirby said he left the scene shortly after the man was taken to the hospital.
On cross-examination, Kirby indicated he did not keep a list of who was present at the scene when he arrived and left or while he was there.
Kirby also said he couldn't identify any of the firefighters who were there.
"Did you secure the scene with tape to indicate an investigation was going on?" Danny Moore asked.
Kirby answered no, just as he did when asked whether anyone had put tape up.
"When you left was there any law enforcement present at the scene?" Moore asked.
Kirby said there was not.
Della Moore testified she was contacted at 3:49 a.m. to respond to the scene, arriving there at 5:02 a.m.
Upon her arrival, the witness said, she saw Payne "lying on the ground. Firefighters were surrounding him," trying to get him on a stretcher and loaded into an ambulance, but he was "pulling away."
Payne, Della Moore said, had came up from a wooded area toward the driveway and was acting "erratically. He was not answering the questions they were asking."
Payne, she said, was covered in dirt, like he had "been rolling around on the ground."
At the time Della Moore saw Payne, she said, she did not know who he was.
After Payne was taken away, the witness said, she began conducting her investigation, which began on the home's exterior. She said she also contacted firefighters to see "what they had done and how they handled the fire."
Della Moore said the front door of the home was found open, the basement door had been forcibly opened by firefighters, who also opened the garage door. She said personnel had trouble opening a sliding door on the main floor.
The home, Della Moore explained, was 1 1/2 stories, with a full basement. The upper story, she said, did not completely cross the main level.
Upon entering the home, she said, she moved from the least amount of damage to the heaviest damage.
"I began examining each room of the house," moving from "room to room," she said. " ... I discovered multiple areas of origin."
Della Moore said there were "four confirmed areas" of origin, with fire originating on each floor.
All accidental causes, she said, were eliminated.
Each, Della Moore said, was incendiary and had been set separately.
Fires were found in Payne's upstairs bedroom, the office area and kitchen on the main floor and in the basement.
The heaviest damage in Payne's bedroom was in the northwest corner and involved the desk and bed.
"Mr. Payne's door was shut; it helped contain the fire and put it out," said Della Moore, who described the fire in the office as being "very small," while the kitchen fire was at the floor level and involved debris/paper.
The basement had the heaviest damage and involved a sofa, said Della Moore, who indicated a blanket or cloth-like material had burned. The fire there, she said, traveled up the stairs toward the kitchen.
Edward James' basement bedroom had no fire damage nor did the southeast portion of the basement, said Della Moore, who also indicated there was no burn damage between each fire. She reiterated the fires were started separately.
The ignition source, she said, was not found.
Della Moore said she also went to the sheriff's department, where Payne was being held. She said she told Payne of his rights at 12:04 p.m.
When Gresham asked about Payne's behavior as compared to his earlier erratic behavior, Della Moore described the man was acting "normal. He answered questions. He was cold; we got him a blanket. His behavior was polite."
During the interview, Della Moore, said Payne told she and Lowe which upstairs bedroom was his, as well as reported he was at home at the time of the fire.
"He stated he was in his bed asleep and smoke woke him up," Della Moore said. "I asked Mr. Payne if he woke and saw fire."
Payne, she said, reported his room was "all smoky, and he couldn't see. I asked if he could feel the heat on his bed because the mattress had burned."
Payne, Della Moore said, told them the fire was not on his bed. "It was on his desk," which was located about two to three feet from the bed, she said.
Della Moore said Payne reported he had played basketball the night before, and his grandmother had picked him up and brought him home, where he started drinking vodka.
When asked about being in the woods, "he stated he panicked," Della Moore said. "That's why he ran into the woods."
Payne, she said, further reported after being awakened by the fire, he went downstairs and got his grandmother out of the house.
Due to the fire, Payne reported he couldn't get down the stairs to Edward James in the basement.
"He started around the side of the house to where a door" was to the basement, Della Moore said. "He said he just froze, blacked out and did not remember ...
"He said he could heard (Edward James) screaming when he panicked."
Edward James never regained consciousness, said Della Moore, who indicated she saw what she described as a large cut above his eye, as well as a cut on the bridge of his nose, during the autopsy.
Gresham also asked whether the home had any smoke detectors.
Della Moore said she found two bases, one in an upstairs hallway and one in a main level hallway. The actual alarms were missing.
One of the alarms, she said, had its battery removed, and both components were found lying on the office floor. When reassembled, she said, the alarm functioned properly.
On cross-examination, Danny Moore questioned the witness extensively about her education, training and certification. The witness said her training included 40 hours to become certified as a fire investigator.
Danny Moore asked the witness for the legal definitions of such terms as fire science, fire and energy. The witness indicated she knew what each was, but could not provide the requested legal definitions.
When Gresham objected to the defense's line of questioning, Danny Moore replied he intended to "fully vet and examine (the witness) as an expert."
Danny Moore asked about what scientific method, "if any," the witness had used to determine the areas of origin.
Della Moore reiterated she based her findings on her observations and the data she collected, which led her to concluding the fires were of separate origin.
"Fires can spread by flying debris ... falling debris ... shafts/air conditioning vents," Danny Moore asked.
The witness agreed, adding "this fire scene, there was no flying debris, falling debris on the first and second floors. The only fire they had to extinguish was in the basement."
Danny Moore asked what source was used to start the fire and when was the first fire started.
"(The source) was not located," the witness said. "The data is what type of fire ... not the time it occurred."
In response to Danny Moore's questions, the witness said, she could not put the fires in sequence.
"His fire in his room completely burned out; the others burned out," she said. "The largest in the basement was still smoking."
In regards to the least and most amount of damage, Danny Moore asked how that determination was made -- by measuring the fire or eyeballing it.
"I do not measure the fire," said the witness, who indicated there is no formula for such things.
Danny Moore further questioned whether the witness had checked the ventilation system as a possible cause.
"There was no ventilation located within the area of origin, no air ducts," said Della Moore, who later indicated she would have "absolutely" checked the ventilation had it been within the area of origin.
When asked whether samples were taken to test for accelerants, Della Moore said, she took samples from the stairway leading to the basement because there was heavy char at the top. Lab results have not been returned, she said.
Gresham asked whether Della Moore uses "every bit" of her knowledge on every fire.
The witness said she does not, but she applies her body of knowledge and uses various books, such as the one Moore earlier had referred to, as guides.
Regarding possible ignition sources, Della Moore said, a lighter was found in Payne's bedroom and a book of matches was found on the office desk next to burned papers.
"I can't specifically say that lighter and book of matches are the ignition source," Della Moore said. "The ignition source was from a human hand."
Based on her scientific method and hypothesis, Della Moore said, she concluded the fire was an incendiary fire.
Gresham also asked Della Moore about Payne's reaction to learning of Edward James' death.
When Payne was told of "his grandpa's passing, he initially put his hand over his face and acted sad," Della Moore.
When anything else was said about the man's death, "he was very smiley," she said. " ... I had never seen a reaction like Mr. Payne's."
Danny Moore said the witness was not qualified to speak about facial expressions and emotions, and he subsequently asked the court to "strike all her testimony" because she didn't meet the standards of an expert.
Gresham disagreed, saying he believed Della Moore to be qualified and competent to testify.
When it comes to expert testimony, it is no longer OK to say "that's the way it's been done for 20 years," Danny Moore said.
There is no methodology or scientific basis for arson investigations, he said, calling them "junk science."
"There is no methodology," Danny Moore reiterated, adding "it's all guesses. What's their scientific method, not their protocol? There's none, zero."
When Freeda James was called to testify, her attorney, Robert Smith, said his client was "going to take her Fifth Amendment rights not to testify."
Once seated on the witness stand, Freeda James told the court her name, but when Gresham asked her where she was living on June 4, she looked to Smith and then said: "I plea the Fifth."
"Are you going to answer any questions I ask you here today?" asked Gresham, who was told no.