1.Rodney Pevytoe — Direct/Cross/Redirect/Recross
938 lines(Jury present.)
THE COURT: At this time the Court calls State of Wisconsin vs. Steven Avery, Case No. 05 CF 381. We're here this morning for a continuation of the trial in this matter. Will the parties state their appearances for the record, please.
MR. FALLON: Good morning, your Honor, may it please the Court, the State appears by Assistant Attorney General Tom Fallon, District Attorney Ken Kratz, and Assistant District Attorney Norm Gahn as special prosecutors for Manitowoc County.
MR. BUTING: Good morning, your Honor. Attorneys Jerome Buting and Dean Strang appear with Mr. Avery, the defendant.
THE COURT: All right. I will indicate for the record, this morning, as usual, I met with counsel in chambers, before we began, to discuss the agenda for today. Is there anything either party wishes to address on the record, outside of the presence of the jury before we bring the jurors in?
MR. FALLON: Nothing, at this time, from the State.
MR. BUTING: No, your Honor.
THE COURT: Very well, we'll bring the jurors in at this time.
(Jury present.)
THE COURT: You may be seated. And, Mr. Fallon, are you going to be questioning the State's first witness?
MR. FALLON: I am, thank you.
THE COURT: You may call your witness.
MR. FALLON: State would call Special Agent Rod Pevytoe.
SPECIAL AGENT RODNEY PEVYTOE, called as a witness herein, having been first duly sworn, was examined and testified as follows:
COURT CLERK: Please be seated.
RODNEY PEVYTOE: Thank you.
COURT CLERK: Please state your name and spell your last name for the record.
RODNEY PEVYTOE: My name is Rodney Pevytoe, P-e-v-y-t-o-e.
DIRECT EXAMINATION BY ATTORNEY FALLON:
MR. FALLON: What do you do for a living?
RODNEY PEVYTOE: I'm a Special Agent with the Wisconsin Department of Justice, the Division of Criminal Investigation. I'm assigned to work in the arson bureau of that unit.
MR. FALLON: And how long have you been employed for the Division of Criminal Investigation, Wisconsin Department of Justice?
RODNEY PEVYTOE: It should be 27 years next week.
MR. FALLON: How long have you been a law enforcement officer?
RODNEY PEVYTOE: Over 30 years.
MR. FALLON: And prior to joining the Department of Justice, what law enforcement experience have you had?
RODNEY PEVYTOE: I was a reserve deputy with the Marathon County Sheriff's Department --
COURT REPORTER: I'm sorry, Judge, I can't hear the witness.
THE COURT: You'll have to get a little closer to the microphone.
COURT REPORTER: Could you repeat that, please.
RODNEY PEVYTOE: I was a reserve deputy with the Marathon County Sheriff's Department in Wausau, Wisconsin.
MR. FALLON: How long have you been assigned to the Arson Bureau?
RODNEY PEVYTOE: It will be 25 years next week.
MR. FALLON: What types of cases does the Arson Bureau involve themselves in?
RODNEY PEVYTOE: Our primary emphasis is the investigation of fires and explosions that occur in the State of Wisconsin, determine their cause and assist in further follow up criminal investigation, if it is warranted.
MR. FALLON: Approximately how many fire investigations have you been involved in in your years of experience in the Arson Bureau?
RODNEY PEVYTOE: I don't have an exact number, but I can say it's easily in excess of 800.
MR. FALLON: Of those investigations, do you have an idea for us approximately how many of them involved a death?
RODNEY PEVYTOE: The best estimate I could give you is approximately 100 individual incidents. And some of those would involve multiple fatalities.
MR. FALLON: How does the Arson Bureau typically get involved in a case?
RODNEY PEVYTOE: When there is a fire or an explosion, we'll receive a request from either a fire chief or a law enforcement official to come there and work with them in making determination as to the events that occurred there and assist them in further investigation, if warranted.
MR. FALLON: And where are you currently based?
RODNEY PEVYTOE: I work out of northern Wisconsin, near Eagle River.
MR. FALLON: Tell us about your educational background. Do you hold a bachelor's degree?
RODNEY PEVYTOE: Yes, I do. I have a bachelor's degree in criminal justice from the University of Wisconsin in Oshkosh.
MR. FALLON: And approximately when did you receive that degree?
RODNEY PEVYTOE: 1978.
MR. FALLON: Do you hold any certifications as a law enforcement officer?
RODNEY PEVYTOE: Yes, I do. I'm a certified law enforcement officer in the State of Wisconsin.
MR. FALLON: And do you belong to any particular associations which are pertinent to the field of fire investigation?
RODNEY PEVYTOE: Yes, I'm a member of the International Association of Arson Investigators in Wisconsin Chapter, as well as in the International Chapter. And I currently serve on the Board of Directors for the International Association.
MR. FALLON: And approximately how long have you been associated with the International Association of Arson Investigators?
RODNEY PEVYTOE: Be 25 years next week.
MR. FALLON: Do you have any estimate as to approximately how many members, worldwide, are in this International Association?
RODNEY PEVYTOE: I believe that the total is somewhere between 7 and 8,000 right now.
MR. FALLON: Are there any certifications that are awarded or provided in conjunction with membership in the International Association of Arson Investigators?
RODNEY PEVYTOE: The International Association of Arson Investigators has a certified fire investigator program. You don't have to be a member of that association to earn that accreditation, but they do have a program to certify a level of competency in fire investigators.
MR. FALLON: All right. Have you received such a certification from this association?
RODNEY PEVYTOE: Yes, sir.
MR. FALLON: And how long have you held such a certification?
RODNEY PEVYTOE: I believe it's 22 years now.
MR. FALLON: Are you currently still certified by the association?
RODNEY PEVYTOE: Yes.
MR. FALLON: And do you continue to receive training in arson investigation or fire investigations and explosions?
RODNEY PEVYTOE: Yes, I do. It's an ongoing basis always.
MR. FALLON: As a result of your 25 years experience and training and certifications, are you familiar with the concepts of cause and origin of fire?
RODNEY PEVYTOE: Yes.
MR. FALLON: Are you capable of recognizing possible human remains which have been damaged by fire as a result of your training and experience?
RODNEY PEVYTOE: Yes, sir.
MR. FALLON: Are you familiar with the concept of accelerants and their role in the cause and origin of fire?
RODNEY PEVYTOE: Yes.
MR. FALLON: Briefly, what is an accelerant?
RODNEY PEVYTOE: An accelerant is typically either a fuel or an oxidiger -- oxidizer that's added to the combustion process to enhance it. Most of the time we think of it as ignitable liquids, but it's not necessarily always that.
MR. FALLON: All right. What are some of the other forms that an accelerant may take?
RODNEY PEVYTOE: Well, in a solid or in a gaseous form.
MR. FALLON: All right. Directing your attention to this particular case, how did you get involved in this investigation?
RODNEY PEVYTOE: Well, on November 9th of 2005, I received a telephone call. I was working on a case in northern Wisconsin. And during that telephone conversation, I was requested to come down to Manitowoc to assist in the investigation of the scene.
MR. FALLON: And that -- November 9th would have been a Wednesday; is that correct?
RODNEY PEVYTOE: That's correct.
MR. FALLON: And approximately what time did you arrive on scene?
RODNEY PEVYTOE: I'm not sure of the exact time, but I'm going to estimate it was approximately mid-afternoon.
MR. FALLON: And when you arrived, what was the first thing you did in conjunction with this case?
RODNEY PEVYTOE: Well, there was a security checkpoint, so I checked in with a officer that was manning that. And then I went over to a command area, if you will, and I spoke to Special Agent Fassbender, who was the leader of that. And then I was introduced to Detective Wiegert, who was also working on that.
MR. FALLON: After this briefing and introduction, what first investigative step, if any, did you take on that day?
RODNEY PEVYTOE: Just more or less got a tour of the whole situation there, in order to make an assessment of any potential needs that would be required for further investigation on my part.
MR. FALLON: As part of this initial tour, did you have an opportunity to observe the area which has previously been identified as the burn pit, behind the residence of the defendant?
RODNEY PEVYTOE: Yes, I did.
MR. FALLON: Tell us your initial observations.
RODNEY PEVYTOE: Well, what was described as the burn pit, is in back of a car or automobile garage there. It was a raised area of soil that had an indentation in it. That indentation, approximately four feet wide, maybe five feet deep, into that soil, or mound, or plateau area. And it had some darkened residue at the base of that. It had been covered up with a tarp prior to my arrival.
MR. FALLON: And did you attempt or begin any processing of that area on Wednesday afternoon, November 9th?
RODNEY PEVYTOE: No, I didn't feel that the weather or the resources allowed it at that time.
MR. FALLON: Did you conduct any other investigative activity on that day?
RODNEY PEVYTOE: No, other than just getting familiar with the scene and making an assessment of the needs.
MR. FALLON: All right. Directing your attention, then, to Thursday, November 10th, in the morning, what was the first investigative task that you undertook?
RODNEY PEVYTOE: Well, the first thing I did on Thursday was actually come here to Chilton to the sheriff's department and I went and met with Deputy Riemer of the Calumet County Sheriff's Department. And myself, along with Special Agent Tom Sturtivant, we did a re-examination of some char material that had been previously removed from the burn pit area.
MR. FALLON: All right. And tell us about that particular examination?
RODNEY PEVYTOE: Well, in that examination, we set up some clean tarps under -- or brand new tarps underneath, elevated the debris so we could get very close to it and look at it, put some very bright lights on it to try to identify as much as we could and then began a systematic process of evaluating the material, going through it in an attempt to identify potential evidentiary items that may be in there.
MR. FALLON: Did you locate any potential items of evidentiary significance in your examination of the debris?
RODNEY PEVYTOE: Yes, sir.
MR. FALLON: And tell us about that?
RODNEY PEVYTOE: Well, I encountered numerous items that I suspected were bone fragmentation. I also recovered something that I believed was part of a tooth. And then a couple other items that were a darkened mass roughly the size of, let's say, a golf ball, maybe a little bit larger, that I felt was charred muscle tissue.
MR. FALLON: And what did do you with these materials that you suspected to have evidentiary significance?
RODNEY PEVYTOE: Deputy Riemer from the sheriff's department was present with me and he was directly adjacent to me. So, when we recovered items, I literally just took them from my hand and put -- handed it over to him.
MR. FALLON: Approximately how long did this process take?
RODNEY PEVYTOE: Until about midday.
MR. FALLON: And during this process, were you assisted by anyone other than Special Agent Sturtivant and Deputy Riemer?
MR. FALLON: After completing your examination of this debris, what was the next step, investigative step, that you took in this case?
RODNEY PEVYTOE: I went back out to the Avery property.
MR. FALLON: Can you estimate for us your approximate arrival time at the Avery property?
RODNEY PEVYTOE: I believe it was the early part of the afternoon on Thursday.
MR. FALLON: All right. Upon your arrival at the property, what task did you undertake?
RODNEY PEVYTOE: Well, after checking in with everybody there and going through the security procedures, I met with other agents from the Arson Bureau there. They went about some different tasks at the property and then myself, and Special Agent Mike Rindt, and Special Agent Jim Sielehr, we conducted a re-examination of the burn pit area.
MR. FALLON: All right. And what role did Special Agent Rindt fulfill on this particular day with respect to the burn pit?
RODNEY PEVYTOE: Well, his initial role was to do some photography of the scene. And then once that was completed, or as part of that ongoing process, he did assist in the examination and so did Special Agent Sielehr.
MR. FALLON: And what did do you when you arrived at the pit?
RODNEY PEVYTOE: Well, the first thing we did is we documented with photographs. And then there were some evidence technicians from the City of Manitowoc Police Department there, so I asked them to do a grid search of the perimeter of that raised soil area.
And there were three of them there, so what I had them do in the grid search is, they walk, literally, shoulder to shoulder. And they were to go in a crisscross pattern, one direction, then going perpendicular to it later. They were supposed to walk through the grass. If they saw anything that seemed out of place or they didn't understand, they were just supposed to mark it and not handle it.
I gave them some flags that would be like you see for utility companies, a little flag on a wire. And they would highlight those areas and they would be looked at by Deputy Riemer. And if it was potential evidence, he would be taking it from that perimeter area, so to speak.
MR. FALLON: Now, with respect to the actual burn pit itself, what did you do there?
RODNEY PEVYTOE: Well, maybe to back up a little bit, we didn't start with the burn pit. The next step after doing that perimeter search was to do the elevated part of the sand area, which was larger than the pit area. And then the pit was the last part of the examination process, if you will.
MR. FALLON: All right. Tell us about that.
RODNEY PEVYTOE: Okay. Well, the first thing that we did when we looked at that elevated area, after some photography of it, is I established a path to walk in, walked into the area, noticed some areas that had some debris that had some potential interest, that was up above. And I marked those with flags. I exited in the same route that I entered.
And then we developed a plan where the three of us would begin to enter from the edge of it; in other words, going from the grass and working our way into the pit, from the far side of the soil, the farthest distance from the burn pit, and we would start to pick up evidentiary items.
The first thing we encountered was a dog house there. So I crawled into the dog house to see if there was any evidence there. We moved it out of the way. We eventually found, I think the roof came off of it. So we examined the dog house, the chain, a few other things that were there, to see if there was anything that -- of particular interest in that area. And then we continued to progress throughout the soil.
MR. FALLON: Did you find any interest in and around the dog house?
RODNEY PEVYTOE: Not in what I expected to be human remains, but we were in the process of taking everything that was there to ensure for it's preservation.
MR. FALLON: After examining the dog house and the elevated dirt pile, how did you proceed?
RODNEY PEVYTOE: Once we completed that elevated area, we then proceeded into this depression that's been called the burn pit. I divided that pit in half, visually, east and west. And we moved in from its perimeter, the edge of it, on our hands and knees and moved through that, and removing items that we suspected would be evidence. And eventually removed all of the ash, there was like a caked, baked on layer of the top soil right there. Actually crumbled that and sifted all the debris and then preserved and removed all of that from the same.
MR. FALLON: All right. Tell us about the material that you found as you began to examine the burn pit.
RODNEY PEVYTOE: Well, there was this heavy layer of black -- blackened soil. It kind of had an oily residue. There was some heavy black, dark charred material. Didn't look like cellulose or wood type charring, although there was some there.
There were some different remains of -- I think there was like a couple hinges, and like different metal parts that we would encounter in that process. And also we found some things that we suspected were some potential bone fragmentation.
MR. FALLON: And tell us about some of the other items; did you find any wire, for instance?
RODNEY PEVYTOE: Yes, just off to the side of the burn pit there was a large ball of intertwined wire that was present. And then there was also the metal remains of what I thought was the -- like a back seat of a SUV type vehicle that had been removed and that also was burned.
MR. FALLON: All right. And tell us, was there anything noteworthy about the balls of wire that you found in conjunction with your examination of the pit area?
RODNEY PEVYTOE: Yes, the wire is consistent with what I have seen in the past in other fires. And it's the wire that remains after steel belted radial tires are burned. So we had this large groupings of oval shaped wires, so to speak, that were all entwined. And in examining those, I noticed that there was some bone fragmentation entangled in the wires, so we attempted to photograph that and recover those items also. And eventually took the whole tangled wires and that rear car seat that I had mentioned.
MR. FALLON: All right. In your fire investigative experience, can you tell us whether steel belted radial tires, do they burn?
RODNEY PEVYTOE: Yes.
MR. FALLON: And is rubber considered an accelerant?
RODNEY PEVYTOE: It can be. It certainly has -- When we look at materials, we judge it by the amount of heat energy it releases. And in my definition, tires being introduced to a fire greatly enhances its ability to burn. It releases a lot more heat energy into it and I believe that tires can be used as a form to accelerate a fire.
MR. FALLON: All right. Now, why did you take the rear seat of the vehicle; why was that of some particular interest to you?
RODNEY PEVYTOE: Well, first of all, because it was there. And it was in the crime scene area, so we removed that. And, also, I didn't know if it would be matched up to a vehicle later on. And, also, the seat itself may have had some impact on the way the fire burned. The foam rubber on the seat, once the seat covering is removed in a combustion process, the foam rubber also burns with great intensity.
MR. FALLON: All right. Approximately how long did the processing of this area take?
RODNEY PEVYTOE: Several hours because we went into the hours of darkness that day. I wanted to -- Once we initiated the process, I wanted to complete it. So we brought in a generator and some large -- several sets of large floodlights to illuminate the area. It might have been as late as 9, 10:00, when we were completed.
MR. FALLON: Okay. With the -- With the items that you suspected of evidentiary value, what -- what did you do with those items which were collected from this area?
RODNEY PEVYTOE: Deputy Riemer was, again, accompanying us in this examination. His role was to take any items that we seized as evidence and, then, he was the evidence custodian for that process.
MR. FALLON: All right. Upon completion of your work on Thursday, November 10th, did you return to the area on Friday, November 11th?
RODNEY PEVYTOE: I did.
MR. FALLON: What were your tasks to perform on Friday, November 11th?
RODNEY PEVYTOE: Well, there were some other areas at the property that needed some examination and evaluation.
MR. FALLON: And what areas were those?
RODNEY PEVYTOE: There were several spots. The first one was an aluminum smelter that was part of the junkyard operation. There was an outdoor wood boiler at the property that we looked at.
And then there were several areas, there was a campfire pit in a backyard of one property. And some other areas where some debris had just been discarded at different times; we were looking at that.
MR. FALLON: Well, let's take those one at a time and let's begin with the boiler area. Tell us about that.
RODNEY PEVYTOE: This wood boiler is a commercially made outdoor wood boiler that's used as a -- either a supplemental or primary heat source for a residence, or in this case, the commercial area.
It's a large self-standing unit and has a large door. You open it up and if you were to use it, you would ignite a fire in there, it would heat water and then the water would be circulated for the heating process in a remote location.
MR. FALLON: All right. And tell us your external visual observations as to the condition of this boiler.
RODNEY PEVYTOE: Well, the boiler, first of all, was cold. It wasn't warm, did not give the appearance of having been used at any time in the recent past. In fact, on the smoke stack of the boiler, there was a five gallon bucket over the top of it, I assume to keep rain water from getting into it at some point.
We then opened the door into the combustion chamber and it was filled with paper products that were unburned, as if items had been placed in there in the past. So as part of our examination process, we removed that unburned paper, looked through it, and then eventually removed all the ash that was in the bottom of it, and looked through it. And, then, as the final step, I partially crawled into it to -- with a flashlight, to examine the area as best I could.
MR. FALLON: I'm going to have Special Agent Fassbender provide you some photographs for your examination.
RODNEY PEVYTOE: Thank you.
MR. FALLON: I believe you are first examining, is it Exhibit 381?
RODNEY PEVYTOE: Yes, State's Exhibit 381 is a photograph.
MR. FALLON: I'm sorry, is that 3-8 or 4-8-1? I'm sorry.
RODNEY PEVYTOE: Oh, I'm sorry, yes, it's Exhibit 4-8-1. It's Case 381, so my confusion, I apologize.
MR. FALLON: Is that the boiler that you examined on Friday, November 11th?
RODNEY PEVYTOE: Yes.
MR. FALLON: Does that appear to be a true and accurate depiction of how it appeared to you when you examined it on that day?
RODNEY PEVYTOE: It does.
MR. FALLON: All right. Directing your attention to the large screen projection of that exhibit, does that accurately reflect the exhibit itself?
RODNEY PEVYTOE: It does.
MR. FALLON: All right. Now, you mentioned something about a bucket, is that depicted in the picture?
RODNEY PEVYTOE: Yes, you can see a stainless steel smoke stack on the boiler. And at the top of it, there's a white, I assume it's a five gallon size, plastic bucket covering that.
MR. FALLON: All right. Upon making the observation of this particular boiler, what was the next step in your investigative process?
RODNEY PEVYTOE: Well, we took some additional photographs and then we began to look into the combustion chamber.
MR. FALLON: All right. If your -- If your attention then would be directed to the next photograph, Exhibit 482 is it?
RODNEY PEVYTOE: Correct, 482, is an accurate depiction of the scene when I saw it. And that photograph is actually just a close up, more so of the chimney --
MR. FALLON: All right.
RODNEY PEVYTOE: -- on this unit.
MR. FALLON: Now, again, who was assisting you in the investigative process on this particular date?
RODNEY PEVYTOE: Special Agent Rindt was.
MR. FALLON: All right. Next exhibit, please, 483, I believe.
RODNEY PEVYTOE: Yes, State's Exhibit 483 is a photograph that is an accurate prediction -- presentation of the boiler unit when we opened up the door.
MR. FALLON: All right.
RODNEY PEVYTOE: And that shows the unburned paper products that we found in there initially.
MR. FALLON: Upon your examination of the inside of this boiler, what did you do?
RODNEY PEVYTOE: We removed these paper products and examined them.
MR. FALLON: All right. And next exhibit, please, 484.
RODNEY PEVYTOE: State's Exhibit 484 is an accurate depiction of the side of the wood boiler.
MR. FALLON: Exhibit 485.
RODNEY PEVYTOE: State's Exhibit 485 is a photograph we took and that is an accurate depiction of the boiler unit after we removed the ash from the bottom of it. It's a gray cellulose type ash.
MR. FALLON: All right. Tell us about the removal of the ash from the boiler?
RODNEY PEVYTOE: We employed a systematic process where we would remove it and examine it as we were placing it down onto this tarp. Photo editor doesn't look like it's showing the whole bottom of the photograph, at least in this depiction. There.
MR. FALLON: All right. Why did you remove the ash?
RODNEY PEVYTOE: To examine it.
MR. FALLON: And what did you note, you said something about the cellulite content of the ash?
MR. STRANG: Cellulose.
MR. FALLON: (By Attorney Fallon)~ Cellulose, excuse me. What did you mean by that?
RODNEY PEVYTOE: Well, if you noticed, the ash is very gray in color, much like you might get from the bottom of a fireplace after you use it for a long time. And this gray, very fine ash is typical of what I have seen from wood products that are burned in a relatively complete combustion process.
MR. FALLON: Now, with respect to that ash, was that at all similar to any of the ash you found in your investigation of the burn pit area?
RODNEY PEVYTOE: No, the ash from the burn pit was very dark black in color and almost more granular in nature. This was very, almost powder, something like a talcum powder almost type consistency, if you will.
MR. FALLON: All right. Your next photograph is exhibit?
RODNEY PEVYTOE: State's Exhibit 486. And that would be a photograph and that depicts the internal part of that burn chamber on the wood boiler. And I believe you have it sideways, the left hand side would be the top of it.
MR. FALLON: The left hand side is the top?
RODNEY PEVYTOE: Yes.
MR. FALLON: All right.
RODNEY PEVYTOE: Rotate it clockwise. And that photograph there would be -- that's the inside of the boiler unit after we have removed the ashen remains. And that gray area is the bottom where the combustion takes place. And so we removed that and then that's where I eventually got partially into and used a flashlight to examine and see if there was anything that we missed in there.
MR. FALLON: And in terms of your investigation of the boiler, did you find anything of evidentiary significance in your opinion?
MR. FALLON: All right. What do you have for your next exhibit, 480?
RODNEY PEVYTOE: I see some photographs of the smelter unit.
MR. FALLON: All right. And is that where your investigation took you next?
RODNEY PEVYTOE: Actually, we did the smelter before we did the wood boiler, but ...
MR. FALLON: All right. Tell us about your investigation of the smelter.
RODNEY PEVYTOE: This smelter unit was kind of an addition onto part of one of the buildings. It was just a partially enclosed area. And it was an LP gas fueled unit and it appeared, by the stock piles of stuff there, it was used to melt aluminum components from the automobile salvage area and eventually render down into ingots at some point.
(Court reporter asked him to repeat.)
RODNEY PEVYTOE: Into an ingot form.
MR. FALLON: By the way, how did it come to pass that you were examining the boiler and now this smelter?
RODNEY PEVYTOE: I was requested to do so by Special Agent Fassbender.
MR. FALLON: And when you investigated the smelter, who assisted you in this particular process?
RODNEY PEVYTOE: Again, Mike Rindt, who is a special agent with the Department of Justice, was with me.
MR. FALLON: And what -- The next exhibit you have there, with respect to the smelter, is Exhibit 480?
RODNEY PEVYTOE: Well, I do have 145. I don't know if that's --
MR. FALLON: That's fine, 145. Do you recognize Exhibit 145, we're putting that on the screen; it's already been received.
RODNEY PEVYTOE: All right. State's Exhibit 145 is that smelter unit that I previously described. You can see some of the aluminum material in the background. And the very center of the photograph, the heavily oxidized unit, is the smelter.
MR. FALLON: All right. And what's your next photograph?
RODNEY PEVYTOE: 487.
MR. FALLON: 487. And Exhibit 487 depicts what?
RODNEY PEVYTOE: That's a depiction of the back of the smelter unit. It shows where the fuel lines that feed that unit are. And there's a couple blower motors.
MR. FALLON: All right. And the next exhibit?
RODNEY PEVYTOE: 488.
MR. FALLON: 488. And what is depicted in Exhibit 488?
RODNEY PEVYTOE: That is the area where the material is introduced and melted.
MR. FALLON: All right. How was this picture obtained?
RODNEY PEVYTOE: If you look in the bottom left hand corner, you see my foot there. In order to look at this smelter unit, I crawled up on top of it and was standing over it, looked down into this melting area, if you will. And I had Special Agent Rindt hand me the camera. So, I'm standing on top of it, looking straight down into this melting area, or melting pot of the smelter.
MR. FALLON: All right. Next exhibit, please.
RODNEY PEVYTOE: Exhibit 489, it's again, another photograph of part of that melting pot, if you will, of the smelter. This one shows three beer cans in it that are unmelted.
MR. FALLON: Again, was this particular photograph taken by yourself when you were on top of the smelter?
RODNEY PEVYTOE: It is.
MR. FALLON: Next exhibit?
RODNEY PEVYTOE: 490.
MR. FALLON: And again --
RODNEY PEVYTOE: Exhibit 490 is another photograph that I took looking down into the melting pot of the smelter.
MR. FALLON: All right. Next?
RODNEY PEVYTOE: 491 is similar.
MR. FALLON: This is another close up of that?
RODNEY PEVYTOE: Yeah, at one point I reached down and moved some things around to see -- you can see there's some like slag in the bottom and some heavy oxidized pieces of metal, so. Because there were areas that were kind of out of direct view of up and down so I had to lean at different angles to take the photograph and did it that way.
MR. FALLON: All right. And I note there are a couple of what appear to be pipes on one of the walls to the melting chamber; do you know what those are?
RODNEY PEVYTOE: Yeah, if you look at the top of that photograph, that would correspond to those blower motors that we saw in the previous exhibit and that would be where they are forcing air into that area.
MR. FALLON: And your next photograph?
RODNEY PEVYTOE: My next one is 493. And this is a depiction of the smelter. It's from the opposite side as the very first exhibit we looked at.
MR. FALLON: And your next?
RODNEY PEVYTOE: Next one would be 494. And that's kind of into the entrance of where the smelter was and it shows a stockpile of, again, what I believe to be aluminum automobile parts. I assume would be for future operation and melt down.
MR. FALLON: And your last exhibit?
RODNEY PEVYTOE: Final photograph is 494 -- excuse me -- 495. And that's a photograph taken from a distance looking out to the smelter and you also see the LP tank that fuels that process.
MR. FALLON: All right. Did you make written documentation of your investigation regarding the boiler and the smelter?
RODNEY PEVYTOE: I wrote a report on the boiler and I forgot to write a report on the smelter.
MR. FALLON: All right. Who assisted you in -- Let me ask you this, was there anyone else assisting you, other than Special Agent Rindt, in your examination of the boiler and the smelter?
RODNEY PEVYTOE: No, Mike Rindt, was the one that was with me both times.
MR. FALLON: In terms of your investigation of the smelter, did you find anything of any evidentiary significance?
RODNEY PEVYTOE: We removed no items of evidence from there.
MR. FALLON: In your opinion, did it appear to have been recently used?
RODNEY PEVYTOE: Not at all.
MR. FALLON: After your examination of the boiler and the smelter, what other investigative tasks did you perform that Friday, November 11?
RODNEY PEVYTOE: There was a -- Just so we maybe separate for the sake of definition, there was a campfire pit in back of the Janda property and Special Agent Rindt and I went over and examined the contents of that area.
MR. FALLON: And did you find any items of evidentiary significance in that?
RODNEY PEVYTOE: We took some items from there, just on the potential that they could be evidence of something. They were men's clothing that were unburned, heavily soiled with like grease and oil.
MR. FALLON: Did you examine any other general debris area on that Friday afternoon?
RODNEY PEVYTOE: One other area was examined.
MR. FALLON: What was that?
RODNEY PEVYTOE: On the back of the defendant's property, at the very rear of the property, there was a sharp depression that went into what looked like an old quarry area, sand pit. Down on that hillside there was some just debris that was located by searchers. And they asked us to look at that debris just in potential that it could have been something of significance to the investigation.
MR. FALLON: All right. I'm going to have Exhibit 86 displayed in a zoomed in mode and ask if that might assist you in showing us where you examined this other debris pile?
RODNEY PEVYTOE: This other debris pile that I'm just referring to would be -- This is the burn pit at the Avery property and the debris pile, this is actually a slope down that goes towards these automobiles. And it was on the slope, right in this area, that those items were discarded and we examined them.
MR. FALLON: Did you find anything of evidentiary significance in the examination of that debris pile?
RODNEY PEVYTOE: No, sir.
MR. FALLON: Directing your attention, then, to Saturday, November 12th, did you continue to assist in this investigation on that day?
RODNEY PEVYTOE: I did.
MR. FALLON: And on Saturday, November 12th, who assisted you, if anyone?
RODNEY PEVYTOE: Special Agent Ronald Evan was with me at a couple points.
MR. FALLON: And did you have the opportunity to examine other potential debris locations on that day?
RODNEY PEVYTOE: Yes, sir, we did.
MR. FALLON: And what areas -- Did you come to examine an area that's been referred to as the Radandt deer camp?
RODNEY PEVYTOE: Yes, sir.
MR. FALLON: And tell us about your examination of that area.
RODNEY PEVYTOE: There were a couple burn barrels there. And we went there with the intent of examining those to see if there were any items that could be of significance. So we went through that and the immediate area around that.
MR. FALLON: And did you find any items of evidentiary significance there?
RODNEY PEVYTOE: As I recall, there was one unburned bone. It looked like a steak bone that was there, but we did take that, just in the possibility that it could be important.
MR. FALLON: Now, was there another location for one of the Radandt Sand and Gravel operation that you examined some debris?
RODNEY PEVYTOE: I don't recall. I believe it was right at the trailer, there was a burn barrel there. And it was around that area that we were looking.
MR. FALLON: Okay. In terms of your investigation of these areas and items, you indicate you didn't require -- excuse me -- you did recover some men's clothing. If you found anything you thought of significance, who was your contact with the Calumet Sheriff's Office for receipt of any information you determined of evidentiary significance?
RODNEY PEVYTOE: That would be Deputy Riemer.
MR. FALLON: Now, in your examination of the burn barrels, I think you said your first task in this -- Well, let me ask you, did you have an opportunity to investigate or to examine some burn barrels as part of this?
RODNEY PEVYTOE: Yes, on Saturday, the 12th, I believe it was. When I was done at the fire pit at the Avery property, I came back over to the Sheriff's Department and there were several 50 gallon barrels that they asked us to go through.
MR. FALLON: All right. And tell us about those burn barrels.
RODNEY PEVYTOE: Those barrels were here at the Sheriff's Department here in Chilton and Special Agent Evan and I, along with Deputy Riemer, went to an area and Deputy Riemer would produce a 50 gallon barrel and its contents and we would conduct an examination of it. If we found anything that we suspected would be potential evidentiary value, we separated that from the barrel. The barrels were being retained for evidence. But we separated out things that might have been important and set them aside and gave them directly to Deputy Riemer for preservation.
MR. FALLON: Now, of those barrels, how many of them did you actually find anything that had some potential evidentiary significance?
RODNEY PEVYTOE: I think only one barrel. We recovered some bone fragments at the time.
MR. FALLON: Now, those bone fragments which were recovered, how did those bone fragments compare with the fragments that you found that were sifted from the burn pit itself; was there anything distinct in your mind about the condition of those fragments or the size of those fragments compared to those in the burn pit debris?
RODNEY PEVYTOE: Yes, the fragmentation that I was finding from the burn pit was very small. Much of it was -- in some cases was the size of half of your little fingernail, if you will. Most of the bones were very fragmented in there. Where the bones that were recovered from that barrel on Saturday, the burn barrel, they were of larger mass.
MR. FALLON: All right. In your examination of materials from the burn barrel, did you find anything such as rivets, or grommets, or any other articles of clothing?
MR. FALLON: In terms of your examination of the -- of the items from the burn pit itself, did you find evidence of clothing such as rivets, or grommets, or things?
RODNEY PEVYTOE: Yes.
MR. FALLON: Tell us about that.
RODNEY PEVYTOE: Well, during this process of the burn pit debris, we looked at several things that were small, bone fragments, couple dental fragments, as well as I recall, at a later date in the examination where we were going through it, if you will, in a very fine dedicated manner to look for small items, we recovered a couple brass colored rivets that -- like what you might see on a pair of blue jeans or jean type clothing.
MR. FALLON: All right. And when did that occur?
RODNEY PEVYTOE: That was in December.
MR. FALLON: And where?
RODNEY PEVYTOE: At the State Crime Laboratory in Madison.
MR. FALLON: And who if -- And who else participated in the investigation of the debris on that day?
RODNEY PEVYTOE: There were numerous people there. Dr. Eisenberg was there for a while, myself, Special Agent Heimerl. I believe Special Agent Rindt was there. At one point Special Agent Fassbender and Inspector Wiegert were there. There were a couple people that were there for part of the process, because it took multiple days to go through that.
MR. FALLON: All right.
MR. FALLON: Your Honor, at this time I would move into evidence Exhibits, I believe 481 through 495. Apparently we marked Exhibit 492 and that's just a re-mark of I think it was 145, so rather than duplicate the evidence, we'll just go with Exhibit 145, I believe it was.
MR. STRANG: Counsel is correct on the duplication and I have no objection to any of the tendered exhibits.
MR. FALLON: And we would pass the witness for cross-examination.
THE COURT: Very well. The exhibits are admitted. Mr. Strang.
MR. STRANG: Thank you.
CROSS-EXAMINATION BY ATTORNEY STRANG:
MR. STRANG: Mr. Pevytoe, good morning.
RODNEY PEVYTOE: Good morning.
MR. STRANG: You -- You have a quarter century's training in arson investigation sounds?
RODNEY PEVYTOE: Yes, sir.
MR. STRANG: And, really, no training at all in archaeology?
RODNEY PEVYTOE: You know, as part of the process of investigating fire scenes, especially in fatal fires, and we cover that. We duplicate a process that's much used by anthropologists. So in classes that I have had, we talk about the process that might be employed and how it actually compares to what an anthropologist or an archaeologist might do in a grave dig.
MR. STRANG: Right, in a burial site recovery.
RODNEY PEVYTOE: Correct, and they are very similar at times.
MR. STRANG: But in terms of training in archaeology as a field, that's not something you have pursued?
RODNEY PEVYTOE: No, I'm not an archaeologist, I'm a fire investigator, sir.
MR. STRANG: Not an anthropologist?
MR. STRANG: There are --
RODNEY PEVYTOE: Took some classes in college in anthropology, but I don't profess to have any extreme knowledge in that area.
MR. STRANG: Okay. There are some system similarities, though, in the burn site recovery or -- I'm sorry -- burial site recovery that might be used in an arson investigation and in archaeology, as you say?
RODNEY PEVYTOE: Correct.
MR. STRANG: Now, in an arson that results in fatalities, one or more deaths you -- you typically, in going into the burned area, would find the remains sort of where they fell?
RODNEY PEVYTOE: Well, in most cases. Sometimes they are moved, in order to preserve them, by firefighters, or something from damage.
MR. STRANG: Yes, either moved accidentally by firefighters in the course of trying to extinguish the fire?
RODNEY PEVYTOE: Correct. Or intentionally.
MR. STRANG: Or intentionally, again, to try to preserve the remains for arson investigators later?
RODNEY PEVYTOE: Or if there is a question of a life, not being able to see correctly, obviously, they may remove a body.
MR. STRANG: Right. There may be emergency efforts?
RODNEY PEVYTOE: Correct.
MR. STRANG: Obviously, to preserve life?
RODNEY PEVYTOE: Right.
MR. STRANG: But, typically, in your experience as an arson investigator, in the instances where the body has been moved at all, that's been by responding emergency personnel?
RODNEY PEVYTOE: Well, I did have -- I recall one case that comes to mind where I had some individuals that were murdered and they were moved. And then they were burned again. And then they were moved again. So I had some where a defendant or a perpetrator has moved body remains.
MR. STRANG: Okay. Let's go to that. But you will recall that my question started with typically?
RODNEY PEVYTOE: And, typically, you are right.
MR. STRANG: So, you know, as they say, typically, then, the body is in place, untouched, unless responding emergency personnel have had some reason to disturb the body?
RODNEY PEVYTOE: Correct. In most occasions that would be correct.
MR. STRANG: Right. Now you spoke of one instance where there was a murder and then an arson?
RODNEY PEVYTOE: Yes.
MR. STRANG: Okay. And let's take that in order. This is not all that uncommon in your experience, to have a murder occur and then somebody set a fire to try to conceal the fact of the murder?
RODNEY PEVYTOE: Well, I don't know what we say is common. It is certainly a possibility that people would use fire to conceal evidence of a homicide or something like that. Fortunately, I don't run into it as a common place thing.
MR. STRANG: If I didn't say, I meant to say, it's not uncommon. You have had the experience in investigating arsons that you concluded were set to conceal a crime?
RODNEY PEVYTOE: Correct.
MR. STRANG: Often that crime would be a murder?
RODNEY PEVYTOE: Yes.
MR. STRANG: In these instances that you have investigated?
RODNEY PEVYTOE: There have been times, yes.
MR. STRANG: Okay. And you described one prior experience where your investigation concluded that there had been a murder, and arson, and then burned bodies were moved in some fashion, again?
RODNEY PEVYTOE: Correct.
MR. STRANG: And re-burned?
RODNEY PEVYTOE: Well, they were murdered, moved, burned, and then the incinerated remains were buried partially. And some were left at the original site and some were buried.
MR. STRANG: Okay. That was one case, in 25 years?
RODNEY PEVYTOE: Correct. And involved five victims, but yes.
MR. STRANG: And in that -- On that occasion, where the incinerator remains were removed and buried, okay, are you with me?
RODNEY PEVYTOE: Mm-hmm.
MR. STRANG: You found the majority of the incinerated remains in the burial site?
RODNEY PEVYTOE: Correct. They were the large pieces, because it wasn't a very good incineration process.
MR. STRANG: And smaller pieces were left behind at what you suspected as the original burn site?
RODNEY PEVYTOE: Correct.
MR. STRANG: Less noticeable pieces, other than to a trained arson investigator?
RODNEY PEVYTOE: I would say that's a fair statement.
MR. STRANG: That is, you have experience, unfortunately, I guess, or perhaps fortunately as a law enforcement matter, of having learned to recognize charred human remains?
RODNEY PEVYTOE: Yes.
MR. STRANG: Remains that might not appear to be human at all to my eyes, or to someone without your experience?
RODNEY PEVYTOE: That's correct.
MR. STRANG: That is, for example, charred muscle tissue looks not much at all like muscle when it's been burned and dried and what you could call desiccated?
RODNEY PEVYTOE: Probably, yes.
MR. STRANG: All right. So your eye picks up smaller remains that an untrained eye may not perceive as human remains at all?
RODNEY PEVYTOE: That's possible, yes.
MR. STRANG: You don't, though, hold yourself out as someone with expertise in cremation, I take it?
RODNEY PEVYTOE: I guess it depends on your definition of an expert. I do have education, somewhat, in cremations. I have gone and observed them and did some studies on because of my position in the arson bureau.
MR. STRANG: And when you say cremations, we're talking about a human body?
RODNEY PEVYTOE: Correct, in a commercial application. Incineration is what I consider to be something that's done in the field.
MR. STRANG: Okay. And so you had some training in commercial cremation. You have obviously had job experience in what you were describing as incineration.
RODNEY PEVYTOE: Yes. And education there. So I had education and experience in both.
MR. STRANG: You know that in a commercial creation, the cremation will be accomplished in an enclosed container or burn chamber?
RODNEY PEVYTOE: Within our culture, yes. There's other cultures that don't do it that way. But within North America, that's typical.
MR. STRANG: Sure. And that's a fair qualification, but let's use North America as the cultural setting here, not India, for example?
RODNEY PEVYTOE: Correct.
MR. STRANG: Typically here, a commercial cremation would happen in an enclosed combustion chamber?
RODNEY PEVYTOE: In a retort, it's called.
MR. STRANG: Yes. And by retort, you mean a closed chamber?
RODNEY PEVYTOE: Correct.
MR. STRANG: All right. That allows for more intense heating in the sense that the heat is captured by the retort, or the enclosed chamber?
RODNEY PEVYTOE: Well, the heat levels were probably the same. It allows for better efficiency of the use of the heat.
MR. STRANG: And a cremation chamber typically would be fed by accelerant, in some fashion.
RODNEY PEVYTOE: Natural gas is the most common fuel product.
MR. STRANG: With lines going into the chamber, correct?
RODNEY PEVYTOE: Depends on the manufacturer of the retort. But there are several avenues that the gas is introduced into there.
MR. STRANG: And then for combustion, you also need air to be introduced into the chamber?
RODNEY PEVYTOE: That's correct.
MR. STRANG: Much, in this very general sense, a little bit like the aluminum smelter you described for us here this morning?
RODNEY PEVYTOE: And adding air to it or what?
MR. STRANG: Yes, I think you pointed out two pipes in one of the photographs of the aluminum smelter that you described as being attached to blower motors?
RODNEY PEVYTOE: Correct.
MR. STRANG: That was to introduce air into the -- the -- what you call the melting pot of the aluminum smelter?
RODNEY PEVYTOE: That's what it looked like they were used for.
MR. STRANG: And then you also saw that there were LP gas or liquid propane gas feeds into the smelter?
RODNEY PEVYTOE: Yes.
MR. STRANG: With the LP gas tank, 500 gallon, thousand gallon, whatever it was, outside?
RODNEY PEVYTOE: Correct.
MR. STRANG: And so, you know, in that sense, the aluminum smelter also was enclosed -- an enclosed combustion area, when used?
RODNEY PEVYTOE: Just partially enclosed, I think the top was open because that's how I could take the photograph.
MR. STRANG: Right. But it wasn't burning when you took the photographs?
RODNEY PEVYTOE: That's correct.
MR. STRANG: And you would expect, in operation, one would close the top?
RODNEY PEVYTOE: Well, it appears it could have been left open at times because there was some scorching to the area a little bit, but it certainly could have been covered at times.
MR. STRANG: Okay. I mean, at least the manufactured design would allow the top to be closed during combustion?
RODNEY PEVYTOE: It looked like it. I didn't operate the furnace so I don't know if there was any switches to prevent or whatever, but it had a cover that could be used. At what point, I don't know.
MR. STRANG: Okay. Fair enough. And do you have a sense of the commercially common or standard temperature at which, again, a commercial cremation is conducted in North American culture?
RODNEY PEVYTOE: Yes, most retorts are going to operate 16 to 1800 degrees. The temperature is going to vary because at some points there's fluctuations, depending on the fuel and when the body ignites and becomes part of the of the fuel mass and then there's a cool down process, but it's a general operating range at times.
MR. STRANG: Very good. 16 to 1800 Fahrenheit?
RODNEY PEVYTOE: Correct. I'm sorry.
MR. STRANG: Now, the -- let's --I'm going to take you now and talk for a little bit about the burn area behind Steven Avery's garage.
RODNEY PEVYTOE: Okay. The burn pit?
MR. STRANG: Well, I'm going to talk about the larger area, because I think you -- you distinguished, somewhat, the area that was a pit or an indentation --
RODNEY PEVYTOE: Correct.
MR. STRANG: -- from the overall area?
RODNEY PEVYTOE: Yes.
MR. STRANG: Your -- Your first call on this case came on November 9?
RODNEY PEVYTOE: Correct.
MR. STRANG: A Wednesday, I think?
RODNEY PEVYTOE: Yes.
MR. STRANG: One of the things you were told that you were being called because some suspected burnt bone fragments had been found the day before?
RODNEY PEVYTOE: I believe so, yes.
MR. STRANG: And there had been some work at that burn area including the indentation, you were told, the day before, on November 8?
RODNEY PEVYTOE: Correct.
MR. STRANG: But, now, your expertise was being sought as an arson investigator?
RODNEY PEVYTOE: As a scene investigator, yes. And I believe also because of the -- some expertise in looking for bone fragmentation.
MR. STRANG: Very well. You actually began that process on November 10?
RODNEY PEVYTOE: Correct.
MR. STRANG: About, you know, give or take, two days after you understood bone fragments first had been discovered in the area?
RODNEY PEVYTOE: That's right.
MR. STRANG: You did not have an opportunity to photograph the overall burn area, if you will, behind Steven Avery's garage, before initial recovery efforts had been made?
RODNEY PEVYTOE: That's correct, I did not.
MR. STRANG: You had an opportunity to photograph it after and before you began any work, correct?
RODNEY PEVYTOE: That's correct.
MR. STRANG: All right. And you set up something of a contamination path --
RODNEY PEVYTOE: Yes.
MR. STRANG: -- if you will?
RODNEY PEVYTOE: That would be my typical procedure to do, just out of habit.
MR. STRANG: Habit in training?
RODNEY PEVYTOE: That's just my habit. In fire investigation, we emphasize a systematic process of evaluation. And I try to continue that over into other things I might be called upon. And that's just part of my personal systematic process.
MR. STRANG: And what the path does for you, in addition, you know, to being routine and systematic, is it allows you to keep to a minimum the amount of earth you are tramping on?
RODNEY PEVYTOE: Correct.
MR. STRANG: So you are reducing, at least, the risk that you will be stepping on, breaking, disturbing, destroying, things that may turn out to be of interest later?
RODNEY PEVYTOE: Correct.
MR. STRANG: And then you -- then you sort of worked from the outside in?
RODNEY PEVYTOE: Correct.
MR. STRANG: You -- You -- And here I'm going to use a royal view, in the sense that I think is it Rindt and Sielehr who are with you on the 10th?
RODNEY PEVYTOE: Yes, sir.
MR. STRANG: At the burn area behind the garage?
RODNEY PEVYTOE: Yes, sir.
MR. STRANG: All right. So the three of you start well outside this indentation area?
RODNEY PEVYTOE: Correct.
MR. STRANG: And examine the area, I would say, east of the indentation, but on the overall, was a sandy sort of mound you described?
RODNEY PEVYTOE: Yeah, if you think of it in the -- as in the sense of a plateau, we examined all of the sand area, except for the pit, in one process, or the indentation where the combustion was -- had taken place.
MR. STRANG: Okay. You don't have to buy into this and you can tell it's February and what I have on my mind, but in some ways, this area looked like a large pitcher's mound with an indentation or a notch in it?
RODNEY PEVYTOE: A large pitcher's mound in it.
MR. STRANG: Right, yes. A very large pitcher's mound, but, roundish in general shape?
RODNEY PEVYTOE: I actually had the impression that it might have been a future building site, like it was a pad that you might eventually put up a building or garage on. But that's just the impression I had from looking at it.
MR. STRANG: Sure, but -- And it was roundish, in general?
RODNEY PEVYTOE: Yeah.
MR. STRANG: And -- And raised in elevation, other than the indentation that you have described?
RODNEY PEVYTOE: That's correct.
MR. STRANG: So you -- you -- you examined the east sort of area of that burn area, we'll call it that?
RODNEY PEVYTOE: You are going to have to forgive me, I don't know the compass direction as well. I think as far as geographical items, I think we started by the dog house --
MR. STRANG: Okay.
RODNEY PEVYTOE: -- and worked our way towards this depression of the burn pit.
MR. STRANG: You know, it may be helpful, we have all seen this quite a bit, but it may be helpful just to pop up an overhead. That's great, that will work just fine.
MR. STRANG: (By Attorney Strang)~ This is a computer generated --
RODNEY PEVYTOE: Sure, I recognize it.
MR. STRANG: -- schematic, okay. Now, counsel -- counsel can object if he thinks I'm wrong, but I think we have established that north is up --
RODNEY PEVYTOE: North is up, okay.
MR. STRANG: -- on Exhibit 109, which is now up on the screen for you.
RODNEY PEVYTOE: All right.
MR. STRANG: Okay. So if you will accept that?
RODNEY PEVYTOE: I trust you for that, sir.
MR. STRANG: Okay. This is a pretty good schematic of the area you have described.
RODNEY PEVYTOE: Yes.
MR. STRANG: All right. The dog house, then, would be generally to the north at about an 11:00 position, if we used the round area?
RODNEY PEVYTOE: Correct.
MR. STRANG: And that's -- that's where you started?
RODNEY PEVYTOE: Correct, we started up -- if you use your terminology, the 11:00 position, worked our way in to where we could get centered and then the three of us advanced, we would say directly south, towards the burn pit, and parallel. Each of us spread out and covering an area and overlapping.
MR. STRANG: So, one of you west, one of you north and central, and one of you east?
RODNEY PEVYTOE: That would be correct.
MR. STRANG: All right. And then just worked slowly to the south?
RODNEY PEVYTOE: Correct.
MR. STRANG: All right. You found nothing of any interest in this case in the dog house?
MR. STRANG: You did find some suspected bone fragments as you worked, though, south along the west, the central, and the eastern areas of that burn area?
RODNEY PEVYTOE: Well, not really. And let me explain. When I first did this initial walk in, I was standing up. And throughout that area, there were -- I could see in that elevated pit area, the pitcher's mound area, as you described it, sir, there were some small lengthy pieces of kind of a chalk white material which looked very consistent with bone fragmentation and it was scattered throughout this upper portion.
However, as I started to get on my hands and knees and pick it up in that layer process, I actually realized that it was burned insulation from some jumper cables that were entwined in the dog's leash. And this burned insulation, with the dog having moved around, it had fragmented that burned insulation, which had a coloration similar to bone, but on closer examination, we could see it was synthetic material.
So we picked it up saying that just in the event that we could miss one single bone fragment somewhere in there, let's pick up every thing so we have it and we'll let Dr. Eisenberg sort it out. But in the reality of it, I don't think we found any bone fragmentation in the elevated area when it really came down to it.
MR. STRANG: At least on the 10th?
RODNEY PEVYTOE: Correct.
MR. STRANG: When you were out there working?
RODNEY PEVYTOE: Right, we didn't see anything up in that top part.
MR. STRANG: Now, have you worked with Dr. Leslie Eisenberg before?
RODNEY PEVYTOE: Yes.
MR. STRANG: Did you call her on the 10th and say, we could use you up here?
RODNEY PEVYTOE: No, I spoke to her on -- I don't know if I spoke to her on the 9th also. Either the 9th or 10th I had several conversations with her.
MR. STRANG: By telephone?
RODNEY PEVYTOE: Correct, by cellphone.
MR. STRANG: And you did not ask her to come to the scene?
RODNEY PEVYTOE: No, I was describing the scene to her, indicated that the area where the mass of the bones in the burn pit had already been examined and excavated and we opted not to do it at that point.
MR. STRANG: The mass of the bones, were those excavated by you?
RODNEY PEVYTOE: No, this was in the first examination on the burn pit, would be those items that I examined at the sheriff's department on the 10th, in the morning, that had been taken out in the first examination.
MR. STRANG: Which -- Which is from this area, this is the indentation area you described?
RODNEY PEVYTOE: Yes, sir.
MR. STRANG: So this was gone by the time you even got to the scene?
RODNEY PEVYTOE: That's right.
MR. STRANG: What's this, if you know, intended to represent?
RODNEY PEVYTOE: I assume that's that ball of wire.
MR. STRANG: Is that about where you saw it?
RODNEY PEVYTOE: Yes, I recall them being to the right, in that area. There was a mass of wire, probably about, you know, I'm just going to estimate, so big around. Well, the size of a passenger car's tire, but there was a mass of multiple tires there entwined.
MR. STRANG: It looked to you like more than one tire?
RODNEY PEVYTOE: Oh, certainly.
MR. STRANG: Okay. But all on the same area?
RODNEY PEVYTOE: Well, no there were fragments of wires in the burn pit also. So, there were broken pieces of steel belted radials in the burn pit. And this was the one accumulation in entirety there.
MR. STRANG: All right. By the burn pit, the gray area?
RODNEY PEVYTOE: Gray or black it looked like to me.
MR. STRANG: Okay.
RODNEY PEVYTOE: But in the burn pit there was short lengths of fragmented wire. When you burn these tires, the rapid oxidation of fire also compromises the steel. And in some cases they can be, with mechanical force, broken. And you find pieces of the steel belts in the pit.
MR. STRANG: Fair enough. And those -- those -- those broken pieces in the pit, though, were by far the smaller quantity?
RODNEY PEVYTOE: Yes, the mass was that ball.
MR. STRANG: Right. And that mass, if from more than one tire, at least was all intermingled?
RODNEY PEVYTOE: Correct. That's what it appeared to be.
MR. STRANG: These are, you presume steel, since they come from steel belted radials?
RODNEY PEVYTOE: Yes.
MR. STRANG: They had a highly oxidized appearance, though, to your eye?
RODNEY PEVYTOE: Correct, which is consistent when they burn.
MR. STRANG: Yes, and by oxidized, I mean rusty.
RODNEY PEVYTOE: Correct. Fire is a process of rapid oxidation, so frequently we see iron or steel that's been exposed to fire, rusting quickly.
MR. STRANG: Yes, and that's where I was going. Fire actually increases the rate of oxidation?
RODNEY PEVYTOE: By its definition it is, yes.
MR. STRANG: Because it's -- fire goes because of oxygen.
RODNEY PEVYTOE: Fire is a rapid self-sustaining oxidation accompanied by the evolution of heat and light in varying intensity.
MR. STRANG: So, in very common parlance, you will get more rapid rusting when iron or steel are submitted to or subjected to fire?
RODNEY PEVYTOE: Many times, yes.
MR. STRANG: To your eye, this mass of rusty, steel wires from the tires, appeared to have bone fragment intermingled with them?
RODNEY PEVYTOE: Correct.
MR. STRANG: You could draw to conclusion from that about how the bone fragments came to be intermingled in the wires?
RODNEY PEVYTOE: That's correct. They were entwined in there to the point where I actually had to physically, so to speak, separate and try to recover. They weren't right on the surface easily removed. But they were into the depth of the wire at times.
MR. STRANG: And you can think of possibilities of how that might have happened, one would be that a body had been atop a -- an intact tire at the time that both were burned?
RODNEY PEVYTOE: That's one possibility.
MR. STRANG: That's one possibility. Another possibility would be that the tires already had been burned at some earlier time and a body was atop that layer? That's the second possibility?
RODNEY PEVYTOE: That's a possibility.
MR. STRANG: A third possibility would be that bone fragments, after the body was burned, not on top of the wires, bone fragments could have been moved into the wires or tossed into the wires, somehow disturbed, so that they were introduced into the wire mesh you have described?
RODNEY PEVYTOE: That's a possibility, yes.
MR. STRANG: And we probably could go on, but the reality is, you can't narrow down to any one of the possibilities we could identify?
RODNEY PEVYTOE: That's correct.
MR. STRANG: Neither could you assign a time frame within which the rusty steel wires that you saw were burned?
RODNEY PEVYTOE: That's correct.
MR. STRANG: You could not assign a time frame within which the bone fragments, or suspected bone fragments you saw, were burned?
RODNEY PEVYTOE: Correct.
MR. STRANG: This area was cool, wet, even cold, when you examined it on November 10th?
RODNEY PEVYTOE: Yes, sir.
MR. STRANG: And just -- just to be clear, the burn pit, or the gray or black area itself, had been excavated before you got to it?
RODNEY PEVYTOE: Correct.
MR. STRANG: By others?
RODNEY PEVYTOE: Yeah, best said, the loose ash was removed from that area.
MR. STRANG: And so you -- you and Rindt and Sielehr, I don't mean disrespect, but it's Special Agents, all of you, found nothing you thought was human in the brown or sandy area here?
RODNEY PEVYTOE: That would be correct, sir.
MR. STRANG: Likewise, you found nothing you thought was human in the grass around the perimeter that you described asking deputies to comb in a grid fashion?
RODNEY PEVYTOE: Correct.
MR. STRANG: Now, by grid fashion, you don't mean that you actually laid out a string grid?
RODNEY PEVYTOE: No, their search pattern was to go shoulder to shoulder and walk north south and then they walked east west over the same area, after they completed it, so that they are crossing it twice. And we call that a grid search pattern.
MR. STRANG: And did they place any of those little flags?
RODNEY PEVYTOE: Yes.
MR. STRANG: They did? Did you examine those things, then, with Deputy Riemer?
RODNEY PEVYTOE: Some of them, I believe we did. Most of it really was not related debris.
MR. STRANG: Right.
RODNEY PEVYTOE: But we asked them and said, if it wasn't a blade of grass, mark it, we'll search -- sort it out.
MR. STRANG: Decided none of it was of evidentiary value?
RODNEY PEVYTOE: I think Deputy Riemer would have to say what he took or didn't. But there might have been a few pieces that we took just to make sure.
MR. STRANG: Okay. But there, again, the grass area, especially south of the burn area as I'm calling it, that also had been examined and things had been recovered, it was your understanding, on November 8 or 9?
RODNEY PEVYTOE: November 8, I believe it was, yes.
MR. STRANG: You described, later in December, I'm going to relate this to the burn area, going through debris from that burn area, I think it was in the Crime Laboratory, you said?
RODNEY PEVYTOE: Correct.
MR. STRANG: Is that right, in December of 2005?
RODNEY PEVYTOE: Yes, sir.
MR. STRANG: Did you go through debris in the Crime Laboratory in December, 2005, from areas other than this area behind the garage?
RODNEY PEVYTOE: Yes.
MR. STRANG: That included one of the burn barrels from behind the Janda property?
RODNEY PEVYTOE: I believe -- Yeah, I believe we did some examination of burn barrels. At that time I don't know where the barrels are, I just know that it's barrel, shall we say, Barrel A, or B, or whatever, but --
MR. STRANG: Right.
RODNEY PEVYTOE: -- we examined multiple things over the course of several days.
MR. STRANG: Do you remember whether you went through debris from what we've called here the quarry pile? And if that doesn't make any sense to you, because you weren't here --
RODNEY PEVYTOE: You're right, that doesn't make any sense to me.
MR. STRANG: Okay. We have identified a -- or had identified for us a site that was, oh, I don't know, somewhere southwest of the Avery property altogether, in or near the Radandt property to the south?
RODNEY PEVYTOE: Okay.
MR. STRANG: Is that a site you went to?
RODNEY PEVYTOE: At one time on Thursday, maybe on Friday, I went to multiple sites, not to examine them, but to check on the welfare of my fellow agents who were doing those sites. So I didn't participate in those areas, but it's possible I may have stopped and asked if they needed some water, or assistance, or special tools to complete their job.
MR. STRANG: All right. I'm just going to -- I'm going to pop up here the -- an Exhibit 402 and see if -- this -- now this is just a schematic diagram.
RODNEY PEVYTOE: Okay.
MR. STRANG: All right. But, again, north is still up in this, to get you oriented.
RODNEY PEVYTOE: I believe you.
MR. STRANG: And you see the little -- there's a little box there that shows the Avery residence and the garage area?
RODNEY PEVYTOE: Okay.
MR. STRANG: Okay. So the little red utility flag symbol, as you described earlier, that's the -- what's been described here as the quarry pile site. Do you recall now whether you got down there?
RODNEY PEVYTOE: I couldn't tell you. It's entirely possible I may have stopped to just check on my agents, but I can tell you that I did not search that area. If that's -- I looked at one site Saturday morning, briefly, but I don't believe that's the same site that's being depicted here.
MR. STRANG: And you never searched here?
RODNEY PEVYTOE: Not to my knowledge, no.
MR. STRANG: Neither do you know whether you looked in the Crime Lab garage at debris from that site?
RODNEY PEVYTOE: We looked at a lot of debris at the Crime Lab. Some of the debris had rocks in it. Whether that's specifically that one, I don't know. At that time we're just saying this is Item A, Item B, and we're searching it. Nobody had said this is the quarry site, as you described it now. So I can't tell you if I searched that or not.
MR. STRANG: Sure. What you can say is that in going through this debris very carefully on the tarp, one of the things you were looking for were rivets.
RODNEY PEVYTOE: Well, any artifacts of clothing, and rivets would be part of that.
MR. STRANG: Fair enough. Did you personally find any rivets?
RODNEY PEVYTOE: I think there were two found and I think Kevin Heimerl found one. I thought I found one, or Kevin and I were next to each other and we saw one. So, yes.
MR. STRANG: Whether you found it directly or not, you got an eyeball on at least a couple of rivets, if I understand?
RODNEY PEVYTOE: Sure, because I remember we cleaned them off and got a magnifying glass to try to read it.
MR. STRANG: All right. These were brass.
RODNEY PEVYTOE: They were brass colored.
MR. STRANG: Brass colored, okay. You have no idea what the actual metal was?
RODNEY PEVYTOE: No, a lot of times that's just a wash surface on there and not -- the surface color is not typical of it's parent metal.
MR. STRANG: Sure. Okay. But whether a magnet was helpful or not, you don't know, but in any event that was the process --
RODNEY PEVYTOE: Well, I had used magnets on there. When we did that examination, I have a real large, foot long oval shaped magnet that we passed over that area first to remove sometimes those broken wires from the steel belted radials --
MR. STRANG: Sure.
RODNEY PEVYTOE: -- and other things. The rivets weren't found in that process, they were actually found visually, so I don't believe it was a ferrous metal.
MR. STRANG: Right. If these things -- if these things weren't ferrous iron or steel, they aren't going to attach to the magnet?
RODNEY PEVYTOE: That would be correct.
MR. STRANG: But you looked very carefully through the debris and were able to find two or three rivets that you were aware?
RODNEY PEVYTOE: Yeah, I thought it was two, but.
MR. STRANG: Okay. You also were looking for the larger button that there might be as a waistband closure on a pair of pants?
RODNEY PEVYTOE: Well, we were going to look for any type of artifacts that we could find.
MR. STRANG: From clothing, period?
RODNEY PEVYTOE: Clothing or human remains.
MR. STRANG: You found no larger, brass colored button from, you know, a blue jean closure at the waistband?
RODNEY PEVYTOE: Not that I recall.
MR. STRANG: Is that something you think you would recall?
RODNEY PEVYTOE: Well, if I found it, I would have, yeah.
THE COURT: Mr. Strang, can you tell me how long you think you might need yet?
MR. STRANG: I have a ways to go and this would be a fine time to break.
THE COURT: All right. Let's take our morning break at this time. Members of the jury, do not discuss the case or this morning's testimony during the break and we'll resume when the break is over.
(Jury not present.)
THE COURT: You may be seated. Counsel, see you in 15 minutes.
MR. STRANG: All right. Thank you.
(Recess taken.)
THE COURT: Mr. Strang, you may resume.
MR. STRANG: Thank you.
CROSS-EXAMINATION CONTD.
MR. STRANG: We were in the basement of the Crime Lab somewhere, when we left off, maybe it wasn't the basement, but it was the Crime Lab?
RODNEY PEVYTOE: All right.
MR. STRANG: You were going through materials in different places on tarps. And if one of those was -- one of those items or areas that you were examining on the tarps was from a burn barrel behind the Janda house, you wouldn't know that other than by the property tag number or whatever it was that identified that -- that debris?
RODNEY PEVYTOE: Correct.
MR. STRANG: You had no opportunity to see the burn barrels behind the Janda house before they were disturbed?
RODNEY PEVYTOE: Correct.
MR. STRANG: But you did testify on direct examination that there -- you saw suspected bone fragments from a burn barrel behind the Janda house, later?
RODNEY PEVYTOE: I believe my testimony was, is that if you are referring to the examination of Saturday the 12th, that we examined some barrels, whether that barrel was from behind the Janda house or not, but one of the barrels we looked at, there was some bone material in it.
MR. STRANG: You looked at a total of four barrels or was it more?
RODNEY PEVYTOE: Four sounds correct.
MR. STRANG: What you are sure of is that only one of them had bone material in it?
RODNEY PEVYTOE: Yes.
MR. STRANG: That bone material -- And it's Saturday, November 12, and we're in the Calumet County Sheriff's Office now, correct?
RODNEY PEVYTOE: Yes.
MR. STRANG: Examining material there?
RODNEY PEVYTOE: Mm-hmm, yes.
MR. STRANG: So the barrels have been transported, somehow, to the Calumet County Sheriff's Office, obviously?
RODNEY PEVYTOE: Correct.
MR. STRANG: There has been a sifting process?
RODNEY PEVYTOE: By myself, or previous, or?
MR. STRANG: If you know?
RODNEY PEVYTOE: I don't know what happened to them. All I can tell you is that when I got there the barrels were there, we removed the contents and went through them.
MR. STRANG: Did you actually remove the contents from the barrel?
RODNEY PEVYTOE: Yes.
MR. STRANG: Okay. Did you sift at that point?
RODNEY PEVYTOE: Much of that debris was too big to sift. Our screens are quarter inch in size so.
MR. STRANG: Okay.
RODNEY PEVYTOE: In -- I don't think any of it could have been sifted, the debris was so massive.
MR. STRANG: Would it have been on tarps on the floor?
RODNEY PEVYTOE: Correct. We would lay a clean tarp down and then go through it. And then I think we would wrap all the material up from the barrel in that clean tarp and then place that into the barrel as a way of making sure that we were recovering everything we looked at.
MR. STRANG: Okay. In spreading the material from the barrel onto the tarps, you did this with caution?
RODNEY PEVYTOE: Yes.
MR. STRANG: I mean, you know, to avoid further breakage of whatever might be in there?
RODNEY PEVYTOE: Yes, some of the stuff, you know, at least initially, I believe the tarp -- the barrel was upright and we were just hand removing it, so to speak.
MR. STRANG: Okay. Again --
RODNEY PEVYTOE: Yes, yeah.
MR. STRANG: Again, for good cautious handling?
RODNEY PEVYTOE: Correct.
MR. STRANG: Spread it out on the tarps, carefully?
RODNEY PEVYTOE: Yes.
MR. STRANG: And the things that you identified as possible bone fragment from one of the barrels, you thought, in general, looked larger than, in general, the suspected bone fragments from the burn pit behind the garage had looked?
RODNEY PEVYTOE: Correct.
MR. STRANG: Now, obviously there's some variation in size in both -- in bone fragments from both places?
RODNEY PEVYTOE: Correct.
MR. STRANG: And these aren't uniformly sized pieces by any means?
RODNEY PEVYTOE: No, you're correct on that.
MR. STRANG: But taking it on the whole, it looked to you like most of the fragments from the barrel were a bit larger than most of the fragments from the burn area?
RODNEY PEVYTOE: Well, from the barrel, as you are describing it, there were only a few bones recovered. I don't know the exact number. It might have been four, or three, something like that. It was certainly single digit numbers. From the burn pit, there were, you know, tens of hundreds found of small fragmentation, and probably by the end, in the high hundreds of small fragments.
MR. STRANG: Well, and we have had Dr. Eisenberg, so we have got, you know, a better sense of what she eventually identified as human as opposed to nonhuman bone. So I don't need to try to get numbers out of you.
RODNEY PEVYTOE: Okay.
MR. STRANG: Okay. But in general, little bit bigger bone fragments from the barrel than from the burn area?
RODNEY PEVYTOE: Yeah, they were noticeably larger.
MR. STRANG: Burned in both cases?
RODNEY PEVYTOE: I believe, yeah, they looked like they had some thermal exposure.
MR. STRANG: You have had experience, obviously, as an arson investigator, with burnt human bone?
RODNEY PEVYTOE: Yes.
MR. STRANG: From sort of light burning on through complete incineration?
RODNEY PEVYTOE: Yes.
MR. STRANG: You know that as burn -- as bone, human bone, becomes progressively more burned or charred, it becomes fragile?
RODNEY PEVYTOE: Yes, and it shrinks and you get some spiral fracturing of it as you go.
MR. STRANG: Right. It shrinks because you are losing moisture?
RODNEY PEVYTOE: Right. The fire dehydrates the body process as part of that incineration.
MR. STRANG: Exactly. And so you will get some spiral fracturing of the bone, all on its own?
RODNEY PEVYTOE: Correct. And some shrinkage of the bone.
MR. STRANG: Which again causes breakage?
RODNEY PEVYTOE: Yes.
MR. STRANG: But beyond that, once the fire is out, you know that those pieces are fragile once burned or calcined?
RODNEY PEVYTOE: Right.
MR. STRANG: Part of the reason for the care with the contamination paths, and getting down on hands and knees, and the grid system of recovery?
RODNEY PEVYTOE: That would be one of the reasons for doing it in that manner, yes.
MR. STRANG: The bones, in general, which you saw in the burn area, looked like they had been subjected to additional breakage, to which the bones in the burn barrel had not?
RODNEY PEVYTOE: There were smaller fragmentations so, yes.
MR. STRANG: The work that you did in the burn area, ultimately -- not ultimately -- but later, after you had gone through for all items of possible evidence you could see, it included actually removing that pitcher's mound, so to speak?
RODNEY PEVYTOE: Yeah, other agents did that. But, yes, that soil area was examined.
MR. STRANG: Examined in the sense of a backhoe was brought in or a skidster or something?
RODNEY PEVYTOE: I didn't participate in that, but, yeah there was a -- a skidster or bobcat type excavator that was used.
MR. STRANG: Okay. Sort of this stuff was dug out, gathered somewhere for further examination?
RODNEY PEVYTOE: Correct. Where we had removed all of the foreign debris from the area, then that area was exhumed to see if there was anything intermed (sic) in the soil.
MR. STRANG: Did -- Did you later have a chance to participate in the examination of all of that soil?
RODNEY PEVYTOE: I didn't, other agents did.
MR. STRANG: All right. You don't know what, if anything, was found in that?
RODNEY PEVYTOE: I wasn't there. I was examining these other areas on Friday. A couple times I did come back to that area to talk to them to see if they needed additional resources. But I wasn't an active participant in that.
MR. STRANG: All right. And so this area you described as really looking like a possible future construction site, you know, something like a pad that a building might have contemplated, that area just gets swept clean, essentially.
RODNEY PEVYTOE: Yes, it was exhumed and examined and then deposited elsewhere.
MR. STRANG: You were asked, and I don't remember, I think it was the 11th of November, which would have been a Friday, you were asked by Special Agent Fassbender to look at some other sites on the general Avery salvage property?
RODNEY PEVYTOE: Correct.
MR. STRANG: One of them was where debris had been dumped down, sort of off the south edge of the yard, behind Steven Avery's house, into what has also been called the pit here where the cars were stored?
RODNEY PEVYTOE: Correct. As I showed you in the one exhibit, that area, yes.
MR. STRANG: That just turned out to be junk of no interest?
RODNEY PEVYTOE: Correct.
MR. STRANG: Another area was the wood furnace?
RODNEY PEVYTOE: Correct.
MR. STRANG: Now, does the 11th sound -- am I recalling your testimony right, that this was the 11th.
RODNEY PEVYTOE: Yes, the Friday the 11th.
MR. STRANG: All right. So about 11 days, 12 days, after you understand that Ms Halbach had been to the Avery property to take photographs of a van.
RODNEY PEVYTOE: Correct.
MR. STRANG: At that time you found the wood furnace cold to the touch?
RODNEY PEVYTOE: Yes, it was.
MR. STRANG: All right. This was obviously the first third of November?
RODNEY PEVYTOE: Correct.
MR. STRANG: It had been sleeting and raining and doing all kinds of things at various times during the 11 or 12 days?
RODNEY PEVYTOE: That's what I understand. It didn't do that while I was there, but it was cold a couple times while I was there.
MR. STRANG: It wouldn't surprise you that a furnace would be cold to the touch if it hadn't been used in a day, or two, or whatever?
RODNEY PEVYTOE: You know, I guess the one thing with that unit, it holds multiple gallons of water. And I would think that that water would retain heat well after the fire was out, for a period of time. At that time, I don't know, but I think if it had been used in the recent past it still might have had some temperature in it because of the size of that boiler and the amount of water it would have contained.
MR. STRANG: In the water?
RODNEY PEVYTOE: Correct, in the water chamber, that's the principle it works on.
MR. STRANG: And the water chamber is where?
RODNEY PEVYTOE: It surrounds the combustion chamber.
MR. STRANG: Okay. And that your understanding was, it was used to heat some of the commercial buildings for the business?
RODNEY PEVYTOE: I think so. It has underground lines, so I didn't follow to what they went to, but.
MR. STRANG: But whether the heat was on in the pole barns, or whatever buildings it was intended to heat?
RODNEY PEVYTOE: That I don't know.
MR. STRANG: The smelter also was cold to the touch?
RODNEY PEVYTOE: Correct.
MR. STRANG: Or, you know, ambient temperature, so to speak?
RODNEY PEVYTOE: Yeah, it didn't seem to have an unusual temperature.
MR. STRANG: Right. By ambient temperature, I mean, just to the touch it was consistent with what the air was?
RODNEY PEVYTOE: It seemed so, I didn't take its temperature, but.
MR. STRANG: I understand, I understand you didn't take its temperature, but about how -- Let's back up just a minute. You simply forgot to make a report about the smelter, didn't you?
RODNEY PEVYTOE: Correct, I should have added a couple sentences to one report or made a special report. We made a photo log and took the photos, but it was a mistake on my part.
MR. STRANG: And I'm not here to beat you up about that.
RODNEY PEVYTOE: Thank you.
MR. STRANG: In fact, I'm trying to throw you a line a little bit, in the sense that I'm going to -- necessarily you are going to have to go off your memory --
RODNEY PEVYTOE: Okay.
MR. STRANG: -- on the smelter here, other than the photographs --
RODNEY PEVYTOE: All right.
MR. STRANG: -- which are similar if you want to take a look at them. Okay. Actually, maybe we will. this area in the -- this one will do as well as anything. Which one is that?
RODNEY PEVYTOE: This is Exhibit No. 490.
MR. STRANG: Okay.
RODNEY PEVYTOE: This exhibit is one of those that I took looking down into the melting pot, if you will.
MR. STRANG: Yeah, that was --
RODNEY PEVYTOE: The smelter.
MR. STRANG: By the melting pot, we could call it the chamber?
RODNEY PEVYTOE: Sure.
MR. STRANG: We could call it the combustion area?
RODNEY PEVYTOE: Sure. It's where the metal and the heat come together to form a liquid.
MR. STRANG: Right. Exactly, where it's intended to melt aluminum, right?
RODNEY PEVYTOE: Appears to be so.
MR. STRANG: So it appeared. And you saw transmissions and parts like that stacked up outside the smelter building?
RODNEY PEVYTOE: Correct.
MR. STRANG: Transmissions are aluminum?
RODNEY PEVYTOE: I believe that they are.
MR. STRANG: They looked aluminum to you, in any event. And this -- this chamber, you stood on top and took a photograph down into it?
RODNEY PEVYTOE: That's correct.
MR. STRANG: Correct? About how high up was that -- was the edge on which you were standing?
RODNEY PEVYTOE: You know, I'm not real sure. It was -- It took me something to climb up onto it and that's why I asked Mike Rindt, the special agent with me, to hand me the camera, so I'm going to estimate it was 4 and a half to 5 feet.
MR. STRANG: Let's go at it this way, from your observation in the smelter, did that -- did the open top that you are looking down into, did that appear to be the way at which one would, you know, toss in the things you wanted to melt?
RODNEY PEVYTOE: Yes, it looks like the product would be introduced through the top area.
MR. STRANG: So, however high it was, it was not so high that someone couldn't, you know, sort of throw the transmission in, or whatever aluminum?
RODNEY PEVYTOE: I don't know how they use it, but it looks like things could be loaded into the top, yes.
MR. STRANG: All right. And then they melt and they run out, channeled, the molten aluminum runs out channels into ingot molds?
RODNEY PEVYTOE: Correct.
MR. STRANG: When the ingot's cool and then you can recycle and sell it to an aluminum recycler?
RODNEY PEVYTOE: I assume so, yes.
MR. STRANG: Yeah. All right. And that chamber itself, on the melting pot as you called it, in Exhibit 490, give me a sense of the dimensions of that?
RODNEY PEVYTOE: I'm not really sure. The opening on the top is smaller than the actual melting chamber.
MR. STRANG: Okay.
RODNEY PEVYTOE: As we noted from the photographs. I would hate to be inaccurate here, because I'm just going from memory from almost two years ago or a year and a half ago, 24 by 24, somewhere in that neighborhood. And that's, you know, shall we use the term, guesstimate?
MR. STRANG: Yeah. Sure. And that's why I threw you the lifeline, you didn't write a report, you are going by memory. But a guesstimate would be 2 feet by 2 feet, something like that?
RODNEY PEVYTOE: Yeah, I would say in that general neighborhood. Could be 20 inches, it could be 26 inches, but.
MR. STRANG: Fair enough. I mean, we're in the ballpark?
RODNEY PEVYTOE: Yeah.
MR. STRANG: Okay. And, roughly, again, a cubicle in shape?
RODNEY PEVYTOE: Yes.
MR. STRANG: Or cubic, whatever the word is?
RODNEY PEVYTOE: Square, square opening on top.
MR. STRANG: Although the chamber itself was larger than the opening, per se?
RODNEY PEVYTOE: Yes, there was some extension off to the sides that I had tipped to look into.
MR. STRANG: All right. So if in fact this thing was, you know, useful for melting an automobile transmission, whether it's 24 inches, or 20 inches, or 26 inches, or whatever the heck it is, it is large enough to get an automobile transmission into, to your eye?
RODNEY PEVYTOE: Or at least a portion of it and then it would melt into that area.
MR. STRANG: You never climbed down into the melting pot?
RODNEY PEVYTOE: I stuck my head down in there and reached around, but I did not physically step into it.
MR. STRANG: That sort of answers, I think, the question, but I will nail it down. So there was no close examination of the debris, or the -- whatever, the slag, or melted contents at the bottom of that chamber?
RODNEY PEVYTOE: No, I bent over and looked in there, because of not being able to see, and used a flashlight and actually examined it. So I got my head close to it, so I could see the best and looked into that area. And then I physically disrupted the bottom of it with my hand so I was within arms reach --
MR. STRANG: Okay.
RODNEY PEVYTOE: -- in order to see if there was any debris that was covered by this aluminum or slag that was on top. Or there's some old rusted metal in there.
MR. STRANG: Then you took nothing out of interest?
RODNEY PEVYTOE: Correct.
MR. STRANG: I'm going to look at my notes just for a moment and see that I covered what I wanted to cover with you. If you will bear with me.
RODNEY PEVYTOE: Sure.
MR. STRANG: The only thing I over looked was the car seat back out at the burn barrel?
RODNEY PEVYTOE: Yes.
MR. STRANG: Okay. Your guess was that this may have been from an SUV?
RODNEY PEVYTOE: It didn't look like a car seat. It -- I thought it was like a bolt in backseat of like an older SUV, bus seat type thing. It was more tubular steel and construction.
MR. STRANG: All right. But you have no idea, really, in the end, what car this would have come from or vehicle this would have come from?
RODNEY PEVYTOE: That's correct.
MR. STRANG: How old the vehicle would have been?
RODNEY PEVYTOE: I have no idea.
MR. STRANG: You are just trying to give us an idea of the appearance?
RODNEY PEVYTOE: Correct.
MR. STRANG: Okay. This thing was burned?
RODNEY PEVYTOE: Yes.
MR. STRANG: It was sitting outside of the actual indented burn pit or indentation?
RODNEY PEVYTOE: On the 11th, when I examined it, it was off to the side.
MR. STRANG: Up sort of on the elevated area?
RODNEY PEVYTOE: Yeah, adjacent to the pit, to the right, as I was facing the north.
MR. STRANG: The areas adjacent to the pit, or the indentation, did not look as if they had been used to burn anything, did they?
MR. STRANG: This was gravel and sand showing no signs of ash or other burning?
RODNEY PEVYTOE: Correct.
MR. STRANG: So you have no idea how the -- whether it was agents who put the seat there or how that came to be adjacent to the burn area?
RODNEY PEVYTOE: That's correct. I can only tell you it was there when I examined it.
MR. STRANG: It, too, was rusty?
RODNEY PEVYTOE: Yes, it was oxidized.
MR. STRANG: But, again, that could have happened very quickly in the fire?
RODNEY PEVYTOE: Yes.
MR. STRANG: Or it could have happened with the elements over a longer period of time?
RODNEY PEVYTOE: That I don't know, because a lot of times those -- those items have a surface coating on them that inhibits the rust --
MR. STRANG: Okay.
RODNEY PEVYTOE: -- by it's appearance. And I also recall that there was a seat belt buckle found, that would look like it would be consistent with a car seat.
MR. STRANG: Mm-hmm. Sure.
RODNEY PEVYTOE: That buckle had the nylon web burned off of it. So I was under the distinct impression that that car seat, or vehicle seat, had been burned.
MR. STRANG: So am I. I mean it was missing all the padding?
RODNEY PEVYTOE: Right.
MR. STRANG: Right. I mean, it was just down to the metal?
RODNEY PEVYTOE: Correct.
MR. STRANG: But -- But, again, whether -- whether it was burned and then left out in the elements and that, you know, the process of being in the elements after being burned account for all the rust, or whether it was just rapid oxidation from being burned, you are not in a position to tell us?
RODNEY PEVYTOE: That's correct. I mean, the fire makes it happen quicker, but it actually rusts after the fire.
MR. STRANG: Okay. Fair enough. See, we -- we don't -- we don't have any idea when this seat was burned?
RODNEY PEVYTOE: No, I just know that it was burned.
MR. STRANG: Right. And we can say it probably wasn't burned where -- where it sat when you saw it?
RODNEY PEVYTOE: Correct.
MR. STRANG: You didn't see any bone fragments, or anything of interest, sort of intermingled into the components of that seat?
RODNEY PEVYTOE: That's correct.
MR. STRANG: The springs or anything like that?
RODNEY PEVYTOE: I did not.
MR. STRANG: So what was of interest was that it was a car seat?
RODNEY PEVYTOE: Correct.
MR. STRANG: That's all I have. Thanks.
THE COURT: Mr. Fallon, any redirect?
MR. FALLON: Just a couple questions. Thank you.
REDIRECT EXAMINATION BY ATTORNEY FALLON:
MR. FALLON: Counsel asked you some questions regarding the spool of left over radial -- steel belted radial tire?
RODNEY PEVYTOE: Yes.
MR. FALLON: And is it possible, from the condition in which you examined it, that one other scenario is that it had been -- could have been raked out of a fire?
RODNEY PEVYTOE: Yes, that's another one of the possibilities of how the bone and the mass of the wires got together as they are, through attending of the fire.
MR. FALLON: And I wanted to have you elaborate a little further on another point counsel raised, and that is, eventually there was a bobcat that was used to excavate the site entirely?
RODNEY PEVYTOE: Correct.
MR. FALLON: Specifically, so that we're clear, that did not happen on November 10th; is that correct?
RODNEY PEVYTOE: That's correct, it happened on the 11th.
MR. FALLON: On the 11th. And prior to doing that, you mentioned something about after all the items were removed from the pit?
RODNEY PEVYTOE: Correct.
MR. FALLON: And what was the surface of the ground like, at that point, after all of the loose debris and everything was removed?
RODNEY PEVYTOE: In the bottom of the burn pit?
MR. FALLON: Yes.
RODNEY PEVYTOE: In the bottom of the burn pit, it was a real -- it had an appearance, I guess you could call it like blacktop, but it was very crusty and black and thick mass that came off as if it had been adhered to. It's consistent of what I have seen in fires like that. And we broke that apart to make sure, some of it was soil, some of it was burnt remains of what appeared to be tire products in there.
MR. FALLON: All right. Well, that was my next question, that crusted surface, like, is that consistent with the residue left over from tires burning?
RODNEY PEVYTOE: It's similar to what I have seen in that same situation, yes.
MR. FALLON: All right. And did you remove that layer of soil?
RODNEY PEVYTOE: Yes.
MR. FALLON: All right. And I take it, it was only after that, then, after all the other items of evidentiary significance were removed, that an excavation occurred, on Friday, the 11th?
RODNEY PEVYTOE: That's correct.
MR. FALLON: All right. Are fires -- excuse me -- Are tires considered an accelerant?
RODNEY PEVYTOE: I guess it would depend on the method that it's used. It certainly can be used to accelerate, as a good fuel, into a fire scene. So you hear of people using it to set brush piles on fire, as the initial igniter, because it burns with great intensity for a given period of time. So, depending on it's use, yes, I would say it's an accelerant.
MR. FALLON: It would be a solid accelerant rather than liquid?
RODNEY PEVYTOE: In it's original form and then it converts during the fire process.
MR. FALLON: Because it's primarily an oil based product?
RODNEY PEVYTOE: Correct.
MR. FALLON: All right. Now, in your investigation of the materials, did you come across any evidence of any other liquid accelerant?
RODNEY PEVYTOE: There was a couple jugs that had like a black oil in it, but what its role in it or not, I don't know.
MR. FALLON: You don't know if that played any part at all in -- in -- in the fire itself?
RODNEY PEVYTOE: That's correct.
MR. FALLON: Okay. You mentioned something about tires, do they give off a lot of energy when they burn?
RODNEY PEVYTOE: Yes, they are a very good source of energy, heat energy.
MR. FALLON: Do you have any idea?
RODNEY PEVYTOE: Well, the one pound of tire gives you roughly 15,000 BTUs of energy. The average passenger tire, according to the tire manufacturers, think it's about 20 pounds. So depending on the orientation and a few other things, you are looking at about 300,000 BTUs per tire.
MR. FALLON: Do all tires have steel belt -- are they all steel belted radials or are there different types of tires that wouldn't have steel belts in them?
RODNEY PEVYTOE: There are different tires. A lot of times trailer tires, are smaller tires for utility vehicles, won't have steel belts. There's also bias ply tires which don't have a steel belt in it. So we see the steel wires there as the remains of steel belted tires, but in those other types of belts -- or tires, when they are burned, we basically just see the black ash, like we saw in the bottom of this pit remains.
MR. FALLON: Are they also considered like a possible solid accelerant, even though they don't have any steel in them?
RODNEY PEVYTOE: Correct, they are a very good fuel.
MR. FALLON: That's all. Thank you.
THE COURT: Mr. Strang.
RECROSS-EXAMINATION BY ATTORNEY STRANG:
MR. STRANG: I think, probably, we can agree, counsel misspoke, at least in the tires that you and I are familiar with, they are not primarily oil or petroleum based, but primarily rubber based, aren't they.
RODNEY PEVYTOE: Well, I think they are synthetic rubbers, I don't recall the exact breakdown, there's multiple compounds in there.
MR. STRANG: Okay. You are not an expert here to tell us about the composition of tires?
RODNEY PEVYTOE: No, I have information data about it that I use as a resource, but I'm not into tire manufacturing.
MR. STRANG: They can be used as an accelerant in a fire, growing in the same way that I suppose crumpled newspaper can be used?
RODNEY PEVYTOE: Well, it can be, but I think a tire is better because the tire, in its solid format, burns with great intensity for a longer period of time than crumpled newspaper.
MR. STRANG: Sure.
RODNEY PEVYTOE: So it's giving off a lot of energy in a concentrated area over a given period of time, much longer than paper, so I would consider it to be a much better product for that purpose.
MR. STRANG: Right. And so would I, you know, newspaper burns pretty quickly. But the idea is when you say accelerant here, this is something used to get a fire going?
RODNEY PEVYTOE: Or to enhance its combustion process.
MR. STRANG: All right. And you -- you -- you have acquired your knowledge about the BTUs generated by a tire through your professional training?
RODNEY PEVYTOE: Correct.
MR. STRANG: You have, just in the same way, I guess, you have acquired knowledge about other possible components of other accelerants in a fire?
RODNEY PEVYTOE: Correct.
MR. STRANG: This isn't knowledge you came to the job, a quarter century ago, with?
RODNEY PEVYTOE: No, I don't think so.
MR. STRANG: That's all I have.
THE COURT: All right. The witness is excused.
RODNEY PEVYTOE: Thank you, your Honor.
THE COURT: Were there any exhibits that -- introduced that this witness -- that either party is requesting admission of?
MR. FALLON: I think we moved into evidence the photographs, without objection, as I understand it.
THE COURT: They are all in already, very well. The State may call it's next witness.