3.Donald Simley — Direct/Cross
321 linesMR. FALLON: State would call Dr. Don Simley.
COURT CLERK: Please raise your right hand.
DONALD SIMLEY, called as a witness herein, having been first duly sworn, was examined and testified as follows:
COURT CLERK: Please be seated. Please state your name and spell your last name for the record.
DONALD SIMLEY: My name is Donald O. Simley, S-i-m-l-e-y, II.
DIRECT EXAMINATION BY ATTORNEY FALLON:
MR. FALLON: Good morning.
DONALD SIMLEY: Morning.
MR. FALLON: What do you do for a living?
DONALD SIMLEY: I'm a general dentist in Madison, Wisconsin.
MR. FALLON: And, uh, how long have you been a, uh, general dentist in Madison?
DONALD SIMLEY: Uh, since 1976 when I graduated from Marquette.
MR. FALLON: Uh, generally, what does, uh, uh, that type of practice entail?
DONALD SIMLEY: Uh, just the general taking care of, uh, individual patients with their restorative needs and their oral hygiene.
MR. FALLON: Does that include any orthodontia work or is -- just regular dental care?
DONALD SIMLEY: Uh, no, sir. Uh, just gen -- general dental care.
MR. FALLON: Do you have any areas of specialization within the field of dentistry?
DONALD SIMLEY: Yes, sir.
MR. FALLON: And what would that be?
DONALD SIMLEY: Uh, forensic dentistry or forensic odontology they call it also.
MR. FALLON: All right. And, uh, for the benefit of those of us who don't spell well, could you tell us how to spell odontology?
DONALD SIMLEY: Odontology is o-d-o-n-t-o-l-o-g-y.
MR. FALLON: Now, you mentioned the word "forensic dentistry" or "forensic odontology". Could you tell us what that is?
DONALD SIMLEY: Forensic dentistry, uh, is just the application or science of dentistry to the field of law. And there are a number of different areas that we can become involved in in forensic dentistry.
Uh, the most common area that I've become involved in is -- is in dental identifications. Routine dental identifications of individuals that are usually not identifiable by traditional means.
Uh, also involvement is in mass disasters, uh, bite mark evidence, child abuse cases, uh, dental malpractice in negligence, in trauma or injury that are involved in litigation. Although, the last two areas I -- I usually don't get involved in very often. But the other areas we certainly do.
MR. FALLON: And how did you get involved in this particular case, Doctor?
DONALD SIMLEY: On November 9, I believe it was, of 2005, I received a phone call from Special Agent, uh, Dol -- Dorlin -- Duranda Freymiller from DCI, Division of Criminal Investigation, uh, requesting assistance in the identification of an individual who was burned.
MR. FALLON: And what were you asked to do, generally?
DONALD SIMLEY: Uh, to attempt to identify the remains of this individual.
MR. FALLON: And, uh, why are you here today?
DONALD SIMLEY: Uh, to offer my opinion on, after my examination and analysis of the evid -- analysis of the evidence, uh, to give an opinion as far as what I found.
MR. FALLON: All right. Well, before we get to your opinion, Doctor, let's, uh, find a little bit about your, um, background if we may. Um, you indicated you received a degree in -- in dentistry from Marquette; is that correct?
DONALD SIMLEY: Yes, sir.
MR. FALLON: And when did you receive that degree?
DONALD SIMLEY: That was in 1976.
MR. FALLON: And prior to receiving your dental degree at Marquette, did you receive an undergraduate degree?
DONALD SIMLEY: Yes, sir.
MR. FALLON: And in -- from what institution?
DONALD SIMLEY: That was Elmhurst College in Illinois. That was in 1972.
MR. FALLON: And what was the degree in?
DONALD SIMLEY: Uh, it was a BS degree.
MR. FALLON: Bachelor of Science?
DONALD SIMLEY: Bachelor of Science. Yes, sir.
MR. FALLON: Um, after receiving your, uh, uh, Doctor of Dental Surgery -- Is that what it is?
DONALD SIMLEY: Yes, sir.
MR. FALLON: From Marquette? Did you pursue any additional, um, training?
DONALD SIMLEY: Uh, I became interested in -- in forensic sciences and started taking classes in 1979 at the Armed Forces Institute of Pathology out in Washington, DC.
MR. FALLON: What kind of institution is that?
DONALD SIMLEY: Um, they just have an annual course in forensic dentistry. Uh, that's one of the -- supposed to be one of the premier courses in forensic dentistry.
MR. FALLON: Um, did you receive any certificates associated with that particular course?
DONALD SIMLEY: Yes, sir.
MR. FALLON: And what certificate did you receive?
DONALD SIMLEY: It's just a certificate in forensic dentistry.
MR. FALLON: Um, currently, um, do you heard -- do you hold any certifications in the field of forensic -- forensic dentistry?
DONALD SIMLEY: Yes, sir.
MR. FALLON: What, uh, certifications do you hold?
DONALD SIMLEY: I'm board certified in forensic dentistry from the American Board of Forensic Odontology.
MR. FALLON: All right. What does it mean to be board certified?
DONALD SIMLEY: Well, you have to undergo kind of a rigorous, uh, examination. You have to submit an application. Um, and then you have to take an examination before a national board.
MR. FALLON: All right. And, um, if you know, how many board certified forensic dentists are there in the state of Wisconsin?
DONALD SIMLEY: There's only two of us. An individual in Milwaukee and myself.
MR. FALLON: And are you aware of approximately how many, uh, are board certified in North America?
DONALD SIMLEY: There are approximately around a hundred dentists that are board certified in the United States and Canada.
MR. FALLON: Are -- are -- Do you belong to any professional organizations that are particularly germane to the field of forensic dentistry?
DONALD SIMLEY: Yes, sir.
MR. FALLON: And what are those?
DONALD SIMLEY: There's a number of them. Um, the American Society of Forensic Odontology; uh, I'm a Fellow in the American Academy of Forensic Sciences; I'm a member of the Wisconsin Association for Identification; I'm a member of the Wisconsin Coroners and Medical Examiners Association; uh, I'm a member of the National Disaster Medical System. Uh, under that is a subgroup of what they call DMORT, which is the Disaster Mortuary Operational Response Team. And I think those are the ones that pretty much pertain to the forensic sciences.
MR. FALLON: All right. If you could, uh, tell us, what is the, uh, National Disaster Medical System? I think you used the acronym DMORT?
DONALD SIMLEY: Under the NDMS -- NDMS, the National Disaster Medical System, is DMORT, which stands for the Disaster Mortuary Operational Response Team, which is a subdivision of -- of the NDMS.
MR. FALLON: All right. And what -- what kinds of, uh -- what type of involvement do you have with that organization?
DONALD SIMLEY: That's pretty much for mass disaster involvement. Um, if a plane crash would go down -- If a jurisdiction would have more individuals to identify than their local jurisdiction can handle, uh, they would call in DMORT.
MR. FALLON: All right. And have you actually been involved in any disaster response operations?
DONALD SIMLEY: Yes, sir.
MR. FALLON: And what have you been involved in?
DONALD SIMLEY: Uh, I went out to New York after the World Trade Center and spent two-and-a-half weeks out there. And af -- after Katrina, went down to New Orleans and spent two-and-a-half weeks down there at temporary morgues.
MR. FALLON: And was that all part of our country's, uh, national disaster response -- coordinator response to those incidents?
DONALD SIMLEY: Yes, sir.
MR. FALLON: How long have you been, uh, board certified by the American Board of Forensic Odontology?
DONALD SIMLEY: That was in 1993.
MR. FALLON: Have you maintained that certification?
DONALD SIMLEY: Yes, I have. You have to recertify every five years.
MR. FALLON: Um, are you a member of any disaster response teams, um, confined to the midwest part of our country?
DONALD SIMLEY: Yes, sir.
MR. FALLON: And what are those?
DONALD SIMLEY: I'm co-leader of the Wisconsin Dental Association's Dental Identification Team. Um, I'm a member of the Cook County, in Chicago, their Mass Disaster Dental Identification Team. Uh, Lake County, Illinois, just north of Chicago, has a team also. And Minnesota.
MR. FALLON: All right. Um, have you ever testified in a court of law regarding a dental identification issue or a bite mark issue?
DONALD SIMLEY: Yes, I have.
MR. FALLON: Approximately how many times?
DONALD SIMLEY: I believe there are 31 times that I've testified.
MR. FALLON: And have you been asked to render what people refer to as expert opinions regarding the identification of either a bite mark or of human remains?
DONALD SIMLEY: Yes, sir, I had.
MR. FALLON: Um, I believe you have in front of you Exhibit 374?
DONALD SIMLEY: Yes.
MR. FALLON: And, uh, what is Exhibit 374?
DONALD SIMLEY: Uh, this is a copy of my Curriculum Vitae or CV.
MR. FALLON: All right. Uh, and, uh, it's current as of what date?
DONALD SIMLEY: January 1 of '07?
MR. FALLON: All right. Is that a true and accurate copy of your, uh, Curriculum Vitae, uh, detailing your experiences, history and training?
DONALD SIMLEY: Yes, sir, it is.
MR. FALLON: Subject to, um, cross-examination later on, we would move for the Exhibit, uh, 374, move its admission.
THE COURT: Any objection?
MR. STRANG: No, I -- No, there's -- there's no objection.
THE COURT: All right.
MR. FALLON: Thank you.
THE COURT: The exhibit's admitted.
MR. FALLON: (By Attorney Fallon) Doctor, um, you indicated you first received a call in this case on November 9. Um, how did you actually become involved?
DONALD SIMLEY: Well, Special Agent, uh, Freymiller called me and asked if I would be willing to assist in the examination and identification of these remains. Uh, on the same date another individual from the Division of Criminal Investigation, Special Agent, uh, Matthew Joy, brought, uh, a box of -- of evidence to my office for me to examine.
Uh, I also talked with -- I believe he's an assistant district attorney from Calumet County, Jeff Froehlich, and he asked me, specifically, if the remains that I examined were human or nonhuman, which I said they were human. And, also, asked some, uh, questions regarding my expertise and qualifications.
And at the same time I also discussed, uh, what I had found so far with, uh, Sheriff Pagel.
MR. FALLON: All right. And all in all, um, were there several, uh, deliveries of items for -- submitted to you for examination?
DONALD SIMLEY: Yes, sir, there were.
MR. FALLON: Approximately how many different deliver?
DONALD SIMLEY: There were six deliveries, of, uh, dental fragmentary evidence, and then one delivery of -- of dental records.
MR. FALLON: And, overall, approximately how many items were you asked to identify? Approximately?
DONALD SIMLEY: There were 52 items of potential evidence.
MR. FALLON: And what did these items consist of?
DONALD SIMLEY: Of the 52 items, there were 24 dental fragments that I was asked to look at. Um, of the 52 -- Sometimes when you have a -- a -- a burned piece of wood, uh, it -- it may look like a burnt piece of tooth, because there wasn't a whole tooth, uh, as we can visualize, that the crowns of the teeth had been destroyed.
So when I was asked to look at was, uh, the 52 pieces, there were 24 that were actually tooth fragments. Not a whole tooth, but 24 tooth fragments. There were three bone fragments, uh, all from the lower jaw, and there were 24 pieces of wood, and then there was one piece of -- of plastic that looked like a crown of a tooth, but when we were able to clean it up, we were easily to tell it was a piece of plastic.
MR. FALLON: All right. Um, now, you mentioned something about, uh, not unusual for wood to be mistaken for teeth. Can you kind of explain that?
DONALD SIMLEY: When -- When the remains of an individual are -- are burned to the extent that they were in this particular case, you get a lot of fragmentation of the teeth.
And so if you've ever had a wisdom tooth extracted or another tooth extracted, and you see the -- the crown of the tooth sticking up and you have the root structure, when you have the degree of, um, destruction or devastation that's associated with the intensity of the temperature of the fire and the prolonged duration of -- of exposure to the fire, uh, this dental evidence can become very brittle, it can fracture, fragment, and, um, due to the burning aspects, it can become charred and blackened. And so you can have a piece of wood, a small piece of wood, that can look very similar, and almost exactly alike, to -- to some of the root fragments that are associated there, also. And when the recovery was taking place, it's difficult for somebody who's not a -- a dentist to -- to discern between some of these, uh, fragmented, burned dental structures and, uh, burned pieces of wood.
In fact, even with me looking at them, sometimes -- I mean, I can't always tell, and that's why I rely on x-rays to really make a definitive decision on some of them. Some of them I could look at very easily and discern and some of them I had to rely on the x-rays to discern.
MR. FALLON: All right. And, uh, while we're at that, can you describe in more detail the condition of the tooth and bone fragments that you were asked to examine and you were able to determine as tooth and root fragments?
DONALD SIMLEY: Again, they were, um, blackened, they were charred, uh, they were very brittle, they were very fragmented, um --
MR. FALLON: In terms of a level of destruction, uh, based on your experience in terms of your disaster relief effor -- efforts and other forensic, uh, experience, um, how badly damaged were these, uh, fragments?
DONALD SIMLEY: Um, again, I've been doing this work since 1981. And, I mean, I -- I've seen other cases very similar to this, but, um, even most burn victims that I see from -- from car fires or house fires, they're not burned to the extent that these indi -- these individual dental fragments were burned. They're right up there at the top of the list as far as the worst I've seen.
MR. FALLON: All right. Are you familiar with a term called "fracture matching"?
DONALD SIMLEY: Yes, sir.
MR. FALLON: Tell us what that is.
DONALD SIMLEY: Again, with some of these dental fragments that I examined, if I can take two pieces of a tooth, and if I can fracture match them back together, in other words, if I can say that they came from a common source, I would put them back together.
Um, again, some of these fragments are -- are very, very brittle, where if I take my fingers and -- and just squeeze them, I could destroy that piece of evidence, and if that evidence is lost, it could preclude an identification from being made.
So to pervert -- preserve that evidence, if I could fracture match those pieces back together and keep -- say that they came from a common source, I would put them back together and use a little cyanoacrylate or Super Glue and fix them together. Um, and then that preserves the evidence, it makes it stronger, makes it more durable and less likely to be damaged or destroyed.
MR. FALLON: Okay. And, uh, were you able to engage in this fracture matching process with, um, the tooth fragments and bone fragments that you received?
DONALD SIMLEY: There were -- On one particular date there were two root fragments that I could fracture match back together. I put those back together.
And there was a piece of bone fragment, uh, that was also associated with that box or bag of evidence that I received in that particular day, and I could actually re-associate that now, two root fragments that are -- are super glued back together as one now, and I could re-associate that with the bone fragment and put back to the bone.
And then there was another date when there were two other root fragments that I could super glue back together. So there were two roots that I could put back together and then that one root back with the bone.
MR. FALLON: Um, of -- After you were done with your fracture matching process, were any of the fragments suitable for comparison?
DONALD SIMLEY: Yes, sir.
MR. FALLON: And what was, uh, suitable for comparison? What did you have to work with?
DONALD SIMLEY: The best evidence that I had was the evidence that was recovered, uh, the second time I was -- the evidence was delivered to my office, and that was by Special Agent Jim Holmes, and that was the -- the fragments that I was able to fracture match back together and the associated fragment of bone, which was from the lower right quadrant, and that was the best piece of evidence for comparison.
Some of the other dental fragmentary pieces of evidence, even after x-rays and studying these things for a long time, I mean, you really couldn't even tell exactly which tooth it was. Um, so this was the best piece.
MR. FALLON: All right. Now, um, in effort to make a dental comparison, I'm assuming you had to have something to compare this fracture fragment with?
DONALD SIMLEY: Correct.
MR. FALLON: What did you have?
DONALD SIMLEY: Special Agent Holmes, on, uh, November 10 of '05, brought dental records to my office for comparison. Uh, the record specifically were x-rays, which are the main type of dental record that I look for in a comparison.
And there was a -- a panorex x-ray from 2001. A panorex x-ray, um, is an x-ray that goes around the outside of the mouth and picks up everything from ear to ear.
There were also 16 bitewing x-rays. The kind that when you normally go in to see your dentist, and they take an x-ray, and they have you bite down on the film, and they shoot the x-ray in from the side, uh, is a bitewing x-ray, which shows the most amount of tooth structure with the least amount of x-rays. So it shows the top and bottom teeth. It doesn't show the root structure, the end of the root structure, but it sometimes shows some of the root structure. And those x-rays ranged from 1998 to 2004.
Um, and then there were other x-rays that I received at a later date. Uh, on that same date, on November 10, I was looking for some additional x-rays, and I called the dentist involved, a Dr. Krupka, I believe his name was, and --
MR. FALLON: Who was Dr. Krupka, by the way?
DONALD SIMLEY: That was the -- the treating dentist for Teresa Halbach.
MR. FALLON: Okay.
DONALD SIMLEY: And all the x-rays were labeled with the name Teresa Halbach.
MR. FALLON: All right. And so you then received the additional x-rays to assist in making this comparison?
DONALD SIMLEY: Well, I -- I called him and asked if they had any other x-rays, and they did have some older x-rays from 1997. They had four bitewing x-rays. But he said they were positioned a little further down in the mouth, and so they actually showed more root structure, uh, specifically, in the lower right quadrant, which is the area I was concerned about, and so he sent those to me and I received those on the -- November 15.
MR. FALLON: All right. So you indicated you were concerned with the, uh, uh, lower right quadrant. Uh, were you able to specifically identify the tooth or root fragment that you were, uh, focusing your comparison on?
DONALD SIMLEY: Yes, sir, I did.
MR. FALLON: And what was that?
DONALD SIMLEY: That root fragment was from the lower right second molar. And we refer to that as Tooth No. 31. Um, there's what they call a universal numbering system, and so that if I'm talking to a dentist in New York City, or in Los Angeles, or in Florida, and I talk about Tooth No. 31, they'll know I'm talking about the lower right second molar.
Um, all the teeth have numbers from -- There's 32 teeth in the mouth. And from the upper right, which would be Tooth No. 1, the upper right wisdom tooth. The lower right wisdom tooth would be Tooth No. 32. And the upper right central incisor would be Tooth No. 8. So we have a numbering system that we refer to. So this specific tooth was a -- a lower right second permanent molar.
MR. FALLON: All right. Now, uh, Doctor, did you have occasion to have, uh, the Crime Lab assist you in preparing a Power Point, uh, presentation to further illustrate your, um, comparison process?
DONALD SIMLEY: Yes, sir, I did.
MR. FALLON: All right. Um, I believe it's -- is there a exhibit in front of you that's, uh, marked?
DONALD SIMLEY: Just the CV.
MR. FALLON: Just the CV?
MR. FALLON: I believe the Court --
MR. KRATZ: I'm showing these now, Exhibits 376 and 377.
MR. FALLON: (By Attorney Fallon) Um, Doctor, uh, first of all, if you would identify Exhibit, uh, 376. Uh, 377, please?
DONALD SIMLEY: 377 is a, uh, copy of the pictures that are used in the Power Point presentation.
MR. FALLON: All right. And, uh, if we now -- if we could direct your attention, then, to the screen, we have a depiction -- Um, one second.
MR. FALLON: We're going to provide the Court with a copy. Very good.
MR. FALLON: (By Attorney Fallon) Um, Doctor, on the screen we have a -- an item depicted. I believe there's a laser pointer to your right --
DONALD SIMLEY: Yes, sir.
MR. FALLON: -- there if need be?
DONALD SIMLEY: Um-hmm.
MR. FALLON: Can you tell us what, uh, we're looking at here, Tooth No. 31, and the word "buccal". What -- what does that mean?
DONALD SIMLEY: Well, again, Tooth No. 31 is -- uh, refers to that lower right second molar, and buccal refers to the side of the tooth. Each tooth has, like, five surfaces that we can examine. We have the cheek side, the tongue side, the biting surface, and then what they call the mesialer, towards the front of the mouth, the distal, towards the back of the mouth. The buccal surface is the cheek side aspect that we're looking at here.
MR. FALLON: All right.
DONALD SIMLEY: So the tooth that I'm looking at is right here. We have two roots that are associated. This would actually be where the roots would be for Tooth No. 30, which would be the first molar, which was not recovered. So this fragment actually comes from the, uh -- this bony fragment here comes from the second molar, or second bicuspid, goes back to beyond the second molar.
MR. FALLON: All right.
DONALD SIMLEY: But the cheek side aspect, or the buccal aspect, sometimes it can be difficult to -- When you take x-rays on a fragment, you have to make sure that the x-ray film is on the tongue side. So it's very critical to be able to identify which is the cheek side, which is the tongue side, and -- and sometimes on burned fragments they can be very difficult.
In this particular case, it would really -- is -- is pretty easy for me to do that because usually the cheek side aspect is a part that's going to be destroyed and burned the worst.
MR. FALLON: Why is that?
DONALD SIMLEY: Well, in a burn victim, as the -- Again, with the intensity and the temperature of the fire, and the prolonged duration of exposure, the -- actually, the cheek will be destroyed first and then -- Again, the crowns -- Again, if we look to the part that would be in the mouth here, would be up here, and that part is missing. So the crown has been destroyed and essentially all the crowns have been destroyed in this evidence. There was one portion of a crown that was recovered and that was on a cuspid, or an eyetooth, uh, which was really non -- not critical at all in the comparison or identification here.
But the cheek side aspect is -- is further protected from the bone. The roots of the teeth are going to be protected from the bone. The crown has been destroyed. But once that fire -- Again, with the intensity and the temperature of the fire, and the prolonged duration of exposure, and the cheek is now gone, we now just have the bone structure protecting that tooth.
The crown doesn't have the bone support protecting the crown of that tooth. The part that's in the mouth. So that part has been destroyed. But the root structure is being further protected, insulated, uh, from the, um -- from the, uh, effects of the fire.
MR. FALLON: All right. In looking at that, how -- where, exactly, is the -- would we call that the jaw bone or not, or --
DONALD SIMLEY: That's a portion from that lower right corner of the mouth. The lower white crad -- quadrant.
MR. FALLON: Could you point on the exhibit what part is bone and what part is root fragment, just so that we're clear?
DONALD SIMLEY: This is root fragment from Tooth No. 31. The rest of this is all bone.
MR. FALLON: All right. Next one. All right. We have, uh, another slide here, 231, lingual. What does that mean?
DONALD SIMLEY: Lingual is the tongue side aspect. And this is where it was, again, very easy, uh, to determine which was tongue side, which was cheek side, because the tongue side, while it's -- while it's blackened, where it's been burned, but it's completely intact, as opposed to the cheek side aspect, or the buccal aspect, that was -- was rough and had burned -- burned away down to the root structure in there.
MR. FALLON: All right. Excellent. And what are we looking here on the third slide marked "occlusal"?
DONALD SIMLEY: "Occlusal" means the biting surface. So now we're looking down directly on the tooth. And, again, the crown has been destroyed, so what we're looking at is really the top of the roots of the teeth. And the fracture matching was done in here where originally that was two roots, and, again, I fracture matched them and super glued them back together. And, again, the cheek side aspect has been destroyed up in here, and the tongue side aspect is still intact.
MR. FALLON: All right. Excellent. And what are we looking at here?
DONALD SIMLEY: This is the 2001 panorex x-ray that Special Agent Holmes brought to me on, uh, November 9 -- or 10, and, again, it -- it goes from ear to ear. I mean, the -- one ear would be over here, the other one would be over here, and it shows all the teeth.
The one that I'm concerned about is this lower right quadrant, or lower right corner, and the tooth that I'm going to be comparing is Tooth No. 31.
MR. FALLON: All right.
DONALD SIMLEY: Tooth No. 32 had been removed after this x-ray had been taken.
MR. FALLON: All right. And, um, what are we looking at on the next slide?
DONALD SIMLEY: Uh, this is just a cropped picture of just 31.
MR. FALLON: All right.
DONALD SIMLEY: And it just shows Tooth No. 31.
MR. FALLON: All right. Again, now, what is, uh, postmortem x-ray Tooth No. 31? Please explain.
DONALD SIMLEY: Uh, postmortem x-ray is one of the x-rays that I had obtained. There were, like, 46 x-rays that I had taken of all the remains and this is one of the x-rays that I had taken on Tooth No. 31 after the -- the roots had been fracture matched back together and have been placed in the bone.
MR. FALLON: And just so that we're all clear, postmortem means?
DONALD SIMLEY: Postmortem is after death. Antemortem is prior to death.
MR. FALLON: All right. The next slide, please. This would be the, uh, Slide No. 7, top of page three, um, what are we looking at here?
DONALD SIMLEY: Uh, this shows that cropped picture of Tooth No. 31 from the 2001 panorex. So this would be an antemortem film over here, and this is the postmortem x-ray over here. What I'm doing is comparing the root structure that's associated with Tooth No. 31 to the postmortem.
And it's not just one root structure, it's actually two root structures. Uh, one tooth, but there's -- there's two structures associated with it. We have the mesial root, or the front root, and the distal root, or the back root.
And there are a number of things I can look at here and compare. And, again, the panorex x-ray does show the whole root down here. But I can see it -- a little bend to the root down here on the mesial root, on the distal root, also has a slight curvature, and I can see the same curvature here and the same bend over here.
MR. FALLON: All right.
DONALD SIMLEY: The pulp tissue in the middle of the tooth we also can compare. And we'll see that later on --
MR. FALLON: All right.
DONALD SIMLEY: At --
MR. FALLON: Okay. And -- and what are we looking at on, uh, the next slide?
DONALD SIMLEY: What I've done here is just to take, uh, and superimposing one x-ray on top of the other, and the one on the left just shows what it's going to look like if it does not match. Uh, where I -- I put the postmortem x-ray on top of the antemortem x-ray, and just had it slightly askew or just off a little bit, and we can see that the pulp tissue -- The pulp is the blood vessel nerve in the middle of the tooth, so if you have a root canal done, they go in and they remove that pulp tissue, and the lines don't line up over here, uh, the width between the roots is not consistent.
Whereas, if I slide it over just a little bit, that pulp tissue is very consistent, uh, the width between the roots is very consistent. Again, this back root is very consistent, and it's -- it's -- the dimension of the root, itself, the dimension of this root, the space in between the roots, and the pulpal tissue that I'm looking at.
MR. FALLON: All right. Thank you. All right. Now, we have another slide, uh, a panorex postmortem slide. What are we looking at here? These are all with respect to tooth 31?
DONALD SIMLEY: Correct.
MR. FALLON: Okay.
DONALD SIMLEY: This is actually the same picture that we just saw. It's just an enlargement. Again, showing, again that -- what it's going to look like if it doesn't match or doesn't line up.
MR. FALLON: All right. And, um, next slide?
DONALD SIMLEY: And, again, where it, in my opinion, is -- is very consistent, uh, where, again, you can put one on top of the other and you can -- you can superimpose one x-ray on top of the other, and see how the x-ray -- that crown of the tooth up here, again, has been destroyed. That's on the antemortem film. The postmortem, but it comes up and it just -- it's one solid line as it comes up.
MR. FALLON: All right. Next slide, please. All right. We have an antemortem bitewing, um, displayed here. What does this tell us?
DONALD SIMLEY: This was the -- Again, it was the oldest of the bitewings. It was a 1997 bitewing, but it was the one that showed the most tooth structure. And so that's what I was concerned about. So it doesn't show the end of the root down here, but it shows more than the other bitewings, which may have come up about here.
MR. FALLON: All right.
DONALD SIMLEY: And this is just a -- a cropped version of -- of that particular x-ray, that bitewing x-ray, so this is the part that we're zeroing in on on that Tooth No. 31.
MR. FALLON: All right. Next one. And we're looking at --
DONALD SIMLEY: And this is the postmortem x-ray, again, that we saw before.
MR. FALLON: All right. And now we have an antemortem and postmortem, uh, slide? Please explain.
DONALD SIMLEY: Okay. Again, this is the cropped antemortem picture. This is the one from the bitewing x-ray. Again, it does not show the entire root structure down here, but it shows a fair amount of it. And, again, we can compare the pulp tissue in the middle of the tooth, uh, there's actually a little constriction of the pulp up here. A little constriction of the pulp down -- up here, and then it gets a little bit wider, gets a little bit wider here. Uh, the bend to the root here. We can see the bend of the root over here.
So this x-ray, again, it's cutting off part of that root there, so this x-ray's probably coming across right about in here. But it does show that bend in there.
MR. FALLON: All right. Excellent. What are we looking at at these particular slides?
DONALD SIMLEY: Um, same thing I did with the panorex x-ray. Um, I've superimposed one on top of the other, and I have, again, the antemortem film, I have a postmortem film on top of it, and, again, just showing what it would look like if it does not match, if the pulp tissues and the root structures do not, uh, coincide.
And then I slide it over a little bit, and, again, it -- it -- it's the -- the way it comes up into the tooth over here, the way the -- the -- Again, this part of the tooth is missing, but it's a perfect match as it comes across down here, uh, to the end of the roots down here. You can see where the root kind of just goes from the postmortem into that antemortem film. Uh, the pulpal tissues line up nicely, the width between the roots, uh, everything is very consistent.
MR. FALLON: All right. And to the final slide then?
DONALD SIMLEY: Uh, there's two more that -- It just -- just shows, again -- This is the -- the same pictures that we just looked at, but a larger version of it where it's blown up, where it does not match. And on the next one, uh, again, it's just a larger version of -- of when you can take those fracture matched pieces, and pieces that I've re-associated, put back together, and then compare them to the antemortem, uh, x-rays, and, uh, everything lines up.
MR. FALLON: Now, do you have, um -- Investigator Wiegert is going to bring you a --
MR. FALLON: Uh, first, would you show, uh, Counsel before you --
MR. FALLON: (By Attorney Fallon) And you've been handed an exhibit. What number is that for the record?
DONALD SIMLEY: No. 375.
MR. FALLON: All right. Would you, uh, examine Exhibit 375, please?
DONALD SIMLEY: This is the -- the fragment that I -- I compared, um, with --
MR. FALLON: Would you take it out and hold it?
DONALD SIMLEY: Sure.
MR. FALLON: Display it for us, please?
DONALD SIMLEY: This is the original bag that I received this particular evidence in that was received on -- from Special Agent Holmes on November 11, and it has that section of the mandible from the lower right quadrant. There's actually another fragment in there of the -- what they call the coronoid process, which is the top part of the -- the lower jaw, and another root fragment in there, but this is the fragment that was critical to the comparison for that Tooth No. 31 and that -- that lower right quadrant of the lower jaw.
MR. FALLON: So what you have there are the remains of Tooth No. 31 from which you made your comparison?
DONALD SIMLEY: Correct.
MR. FALLON: All right. Now, Doctor, do you have an opinion on whether the root fragments from tooth 31 recovered from the burn pit are consistent with the dental x-rays of Teresa Halbach obtained from Dr. Krupka?
DONALD SIMLEY: Yes, sir.
MR. FALLON: And what is that opinion?
DONALD SIMLEY: In my opinion, the remains are very consistent.
MR. FALLON: All right. And, uh, were you able to obtain a positive identification?
DONALD SIMLEY: I'm kind of reluctant to use the world "positive". Uh, there were -- there were not a lot of remains that were recovered. Uh, there were no crowns that were critical, there were no dental fillings that I could compare. Uh, when I make a positive identification, and I do use that term quite frequently in reports, a positive identification to me would indicate to the exclusion of all others in the world. Um --
MR. FALLON: So you would be one -- you would have to be one hundred percent beyond any doubt for you to make a positive identification?
DONALD SIMLEY: Correct. I'm very conservative on my opinion, and I just was reluctant to use the word "positive".
MR. FALLON: How close were you to making a positive identification in this particular case?
DONALD SIMLEY: Um, I was very close. I mean it -- it -- it was -- when you can superimpose, uh, evidence, one on top of the other, and they look to be as one fragment, um, you can't get much closer.
MR. FALLON: All right. Um, Doctor, the opinion that the fragments from tooth 31 are very consistent with the dental x-rays that you obtained from Teresa Halbach displaying tooth 31, do you hold that opinion to a reasonable degree of scientific certainty?
DONALD SIMLEY: Yes, sir, I do.
MR. FALLON: All right.
MR. FALLON: Um, subject to Counsel's right to cross-examination, I would move into evidence, the, uh, actual CD-ROM of the Power Point presentation. Um, the, um, handout of -- which is Exhibit 377. I believe the Power Point ROM is 376. His, uh, CV has already been received, and, uh, would move into evidence the, uh -- the root fragment which he's displayed.
THE COURT: Any objection?
MR. STRANG: I -- I don't -- No, there -- there's no objection. The 376 is a CD-ROM; is that right?
MR. KRATZ: It's the disk, itself.
MR. STRANG: Okay. No -- no objection to --
THE COURT: Very well. Um, those exhibits are admitted.
MR. FALLON: Pass the witness.
THE COURT: Mr. Strang?
CROSS-EXAMINATION BY ATTORNEY STRANG:
MR. STRANG: I don't have a lot for you. I've just -- I've got a few questions in -- in one area that you brought up, um, with us, Dr. Simley, on direct examination, and that's the -- the heat.
Um, are you able, as a matter of your experience and learning, uh, to tell us what -- what, um, temperature range would be required to render, uh, to the State, you saw them, the 24 tooth fragments that you examined here?
DONALD SIMLEY: No. Um, the only thing I would say is that, uh, again, I, during the course of my 26 years of involvement in forensic dentistry, seen a number of individuals from, uh, car accidents, um, house fires, and under the understanding that temperature ranges there can be over a thousand degrees Fahrenheit, and, uh, this individual -- either -- either the prolonged duration of exposure or a higher temperatures, uh, I don't like to get into temperatures, but, again, this -- this is more than the average burn victim that I normally see.
MR. STRANG: All right. Have you, uh -- have you also examined at least the dental remains of burn victims in which the, uh, fire was fed by a volatile fuel? Jet Fuel A, or 8 gas or some -- some other -- You know what I mean by a volatile fuel?
DONALD SIMLEY: Yes, sir. Yes, sir. Yes, I have.
MR. STRANG: Uh, roughly how many times have you done that?
DONALD SIMLEY: Tell you the truth, I -- I -- I don't -- I'm not always privy to that information, um, but I know that there's one other case that I can think of where there were five individuals involved, and I know there were accelerants used there. Uh, again, remains look very similar from my point of view, but I'm the lay person when you talk -- when you talk about there.
MR. STRANG: Sure. Um, by an accelerant, we're talking about a -- a flammable fluid of some sort?
DONALD SIMLEY: Correct.
MR. STRANG: Okay. And would -- would the -- the burning that you see here, the level of -- it's called thermal destruction or thermal damage --
DONALD SIMLEY: Okay.
MR. STRANG: -- that you see here, be high -- worse than, about the same as, or not as bad as, the instances in which you've seen, uh, dental remains where there was a -- you know, a fire fed by some accelerant, as you say?
DONALD SIMLEY: To me, they -- they would look about the same as -- as what I have seen with accelerants used.
MR. STRANG: Can you -- Based -- Drawing on your experience and your learning, can you give us -- I think -- I think -- It sounded like you wanted to shy away from a -- from a temperature estimation or range; is that right?
DONALD SIMLEY: Probably be fairly safe to say that, yes.
MR. STRANG: Safe because you just don't feel competent to do that or --
DONALD SIMLEY: Well, I know that the temperature ranges -- Again, from what I understand on -- on house fires and -- uh, again, a thousand to twelve hundred degrees. I think in cremation you're looking at around eighteen hundred degrees Fahrenheit or so. Um, are -- are these -- Again, from a temperature point of view, uh, they certainly appear to me -- Again, uh, there are other people more qualified to answer that question than myself, but, uh, from my point of view, they're more than the typical house fire, which would either put the temperature range either higher or the prolonged duration of exposure longer.
MR. STRANG: Let's take those in -- in the two -- two separate categories --
DONALD SIMLEY: Fine.
MR. STRANG: -- you started with.
DONALD SIMLEY: I agree.
MR. STRANG: When you use the term "cremation", which we were using earlier this morning, you mean a, uh -- a lawful cremation?
DONALD SIMLEY: Correct.
MR. STRANG: Uh, which you know to occur in a -- in a closed chamber of some kind?
DONALD SIMLEY: Correct.
MR. STRANG: Fed by, um, jets or an --
DONALD SIMLEY: Yes, sir.
MR. STRANG: -- active accelerant?
DONALD SIMLEY: Yes, sir.
MR. STRANG: Okay. And that, you understand, to produce a temperature range something close to eighteen hundred degrees Fahrenheit?
DONALD SIMLEY: Correct.
MR. STRANG: Do you have an understanding about how long the lawful, you know, the ordinary cremation process takes if that's how someone, you know, or a relative likes to dispose of remains?
MR. FALLON: Objection, foundation.
MR. STRANG: (By Attorney Strang) I -- I -- I -- I mean this to be a foundational question.
DONALD SIMLEY: From what I understand, about an hour-and-a-half or so --
MR. STRANG: Okay.
DONALD SIMLEY: -- of cremation.
MR. STRANG: And that -- that -- that's knowledge you've acquired through your work as a forensic odontologist?
DONALD SIMLEY: Through continuing education and lectures and talking to funeral directors, yes.
MR. STRANG: Fair enough. Okay. And so about an hour-and-a-half, give or take. I'm sure, um, we can assume that all people are different sizes and structures; is that correct?
DONALD SIMLEY: Right.
MR. STRANG: Uh --
DONALD SIMLEY: I've never actually seen a cremation, though.
MR. STRANG: Sure. And about eighteen hundred degrees Fahrenheit, although we can -- we can agree that all crematory facilities are going to be a little bit different too?
DONALD SIMLEY: Correct.
MR. STRANG: Okay.
DONALD SIMLEY: And I think the individuals can make a difference on the temperatures also.
MR. STRANG: Sure. So I'm -- I'm looking for ball parks just --
DONALD SIMLEY: Right.
MR. STRANG: -- based on your training and experience. Uh, and then if we're -- if we're talking about a house fire, you've -- you've sounded comfortable using a range of about a thousand to twelve hundred degrees Fahrenheit generated by a typical house fire?
DONALD SIMLEY: Again, there -- other people that are more qualified than myself to -- to render that opinion. But from what I've talked with other individuals, and from what I've heard, that seems like a -- I think a fairly reasonable --
MR. STRANG: A reasonable --
DONALD SIMLEY: -- estimation.
MR. STRANG: -- range?
DONALD SIMLEY: Yes.
MR. STRANG: Okay.
DONALD SIMLEY: But, again, that's out of my area of expertise.
MR. STRANG: Understood. And I don't want to -- don't want to take you farther --
DONALD SIMLEY: No, that's fine.
MR. STRANG: -- than you can go. Uh, and then let's go to the second category or factor, uh, variable that you described, which is time of exposure to this sort of intense heat or thermal, uh -- dynamic thermal energy; all right? Um, I take it, then, that if what you were seeing here, uh, in range, in temperature range, may be closer to the cremation sort of temperature range?
DONALD SIMLEY: I'm -- Again, I think that gets closer to putting an actual degree on it and I -- I -- I hate to do that.
MR. STRANG: All right. But if not that, then a longer period of time exposed to maybe a lower level of heat?
DONALD SIMLEY: From the dental remains that I saw, it -- it's one or the other, I think, and I think there arson investigators that can probably give a better idea as far as the, uh, temperatures involved. But, again, from my point of view, um, it either had to be an extremely hot fire or -- or prolonged duration of exposure.
MR. STRANG: And by "prolonged duration of exposure" can you -- can you give us any estimate, and -- and just tell me if you can't, uh, but can you give us any, uh, estimate of a time, or a duration, if we posited a fire of something in more -- you know, in the thousand to twelve hundred degree Fahrenheit range?
DONALD SIMLEY: I -- I don't think I could. No, sir.
MR. STRANG: Fair enough. Thanks.
DONALD SIMLEY: Sure.
THE COURT: Any redirect?
MR. FALLON: Uh, no redirect for this witness.
THE COURT: All right. You are excused, sir.
MR. FALLON: Could, uh, counsel approach to decide how we're going to --
THE COURT: Sure.
MR. FALLON: -- use the remainder of our time?
(Discussion off the record.)
MR. KRATZ: State's going to call Karen Halbach, Judge.
THE COURT: Very well.