Jurors hear short day of testimony in Modery homicide trial
WASHINGTON – Jurors once again had a short day of testimony in the Gregory Modery homicide trial Thursday.
Modery’s attorney, Fred Rabner, had asked that there be no testimony Thursday in order to allow him to prepare a new defense in light of video evidence Judge Katherine Emery Wednesday ruled is admissible. The video reportedly shows Modery with Martos at the Pilot Truck Stop in Bentleyville several hours after Ohio medical consultant Ira Swearingen was last seen. Swearingen was on his way to Uniontown to assist with surgery when he disappeared Dec. 12, 1999.
Modery and Martos have both been charged with homicide, aggravated assault, kidnapping, robbery, tampering with evidence and conspiracy in Swearingen’s death. Martos pleaded guilty to first-degree murder in the case. Rabner contends his client is innocent and the charges against him are the result of mistaken identity.
Prior to Tuesday morning, Rabner believed there was no physical evidence against his client, including any video surveillance evidence. Rabner said that since the new evidence has surfaced, he needs to redesign his strategy for Modery’s defense.
Rabner made his request for the trial to be recessed for the day when the court day began at 9:30, before the jury was seated.
“I was given from 2:00 in the afternoon (Wednesday) until now, 9:30 (Thursday) to prepare. From 2:00 until 5:00 is not sufficient time to prepare for that large of a change in the case,” Rabner said.
The request was denied and District Attorney John Pettit called his first witness, Pennsylvania State Trooper Steven Thompson. Thompson was the arson investigator called out when Swearingen’s burned rental car was found in Greene County.
“This vehicle was completely burned. Everything that could burn, did burn,” Thompson said. “This fire wasn’t put out by a fire department. It burned itself out.”
Thompson said it was impossible to tell where the fire had begun since the destruction was so complete. The only burn pattern he could distinguish was caused by paint on the car bubbling before burning off. Thompson said that was a sign that an accelerant had been used.
Thompson said a road flare cap was also found at the scene, which could indicate that a flare was used to start the fire.
“It’s very hot. It’s a chemical fuse and it burns pretty hot, and it burns pretty quick. It would catch anything very, very fast,” Thompson said.
Thompson said all of the debris from the burned car was sifted to see if it contained any evidence, whether it was luggage tags or human remains, but nothing was found. The ignition tumbler was located intact, showing that the vehicle hadn’t been hot-wired, but the key was not in the ignition, Thompson said.
Following Thompson’s testimony, Rabner again asked for a recess in the trial. The jury was escorted out of the courtroom for a short break. Before they returned, Rabner again addressed Judge Emery.
“This was a very, very momentous decision you made yesterday and you have not given me time to prepare. You’re injecting an appeal in this case, “Rabner said. “Honestly, your honor, I need more time. I understand your concern about the jury, but the case is not about the jury, it’s about the defendant.”
Pettit said he had two witnesses he could call that did not involve the videotape evidence.
“I’m on the horns of a dilemma. I don’t want to support Mr. Rabner because he is my adversary, but I don’t ever want to try this case again,” Pettit said.
Emery gave Rabner until Friday morning to prepare his case based on the new evidence, but only after Pettit had called two more witnesses for the morning. The FBI agent who found the empty .45-caliber casing at the alleged murder scene testified, saying the area was combed twice in a shoulder to shoulder search, once on foot, the second on hands and knees. The casing was found on a third search of the area using a metal detector.
Trooper James McElhaney was called back to the stand testifying about television listings from Dec. 12, 1999. A future witnesses is expected to recount what was on television as part of establishing the time frame for Swearingen’s kidnapping.
Emery then dismissed the jurors for the day.
“I apologize for this early dismissal, but it is necessary for a fair trial. We will resume tomorrow at 9:15,” Emery told the jurors.