GALLIPOLIS — Walter E. Stewart took the witness stand Tuesday during the third day of testimony in his capital murder trial in Gallia County Common Pleas Court.

Stewart, 77, Wellston, is charged with aggravated murder in the shooting deaths of John Paul Holley and Carolyn Merry as well as the attempted murder of David Merry at the Holley Brothers Stone Yard on April 28.

The state rested its case Tuesday morning after hearing testimony from Montgomery County Chief Deputy Coroner Dr. Lee Lehman, whose office performed the autopsies of Merry and Holley, and Daniel Davison, forensic scientist, Bureau of Criminal Investigation and Identification.

Lehman testified that both Merry and Holley died from gunshot wounds to the head and were looking in the direction from which the shots were fired. He said the wounds were similar in shape, which he called keyhole, meaning that the bullets or fragments of the bullets entered and exited in the same vicinities. Lehman could not determine the position the victims were in when shot based on their wounds because of the head’s ability to rotate.

Davison processed gunshot residue tests submitted for Merry, Stewart, Stewart’s wife, Luanne, and the driver’s side of Stewart’s vehicle. He testified that all the tests except for Merry’s came back positive. It was determined that a person does not have to fire a gun to test positive for residue, they could be nearby when a weapon was fired and still test positive. A sample was not taken from the passenger side of Holley’s truck from where earlier testimony alleged Stewart had shot Merry.

After the state rested, Defense Attorney Robert Krapenc made a motion to dismiss the aggravated murder charge regarding Holley because he said no evidence was introduced showing prior calculation and design in his death. Meigs County Common Pleas Court Judge Fred Crow III, who is presiding over this case following the recusal of Gallia County Common Pleas Court Judge D. Dean Evans, overruled the motion.

Stewart took the stand first for the defense and explained a bit about his business arrangement with Merry and Holley. Basically, Stewart Construction signed a contract with CMJ Enterprises, which he said consisted of Merry and maybe Holley, in December 2005 to lease approximately 650 acres of Merry’s property to mine stone. It took a year or so, but they eventually obtained permits to work approximately 91 acres and set up a stone mining plant in or near the area of the stone yard referred to as the pit complete with a crusher and several conveyors. Merry was renting the scalehouse to Stewart and he was also paying royalties on every ton of stone sold.

At some point, profits dwindled and he said that in the summer of 2008 Stewart Construction began working to reclaim the land back to its original state so they could get their bonds back on those acres. Around the same time, Stewart’s son, Jack began operating Rodney Stone across from Bodimer’s on Jackson Pike where he sold stone that he was purchasing from a supplier.

In regard to April 28, Stewart testified that he and his wife were planting potatoes around 4 p.m. when their son, Terry, received a call from Jack that Holley had told him not to load any more stone from Holley Brothers until he talked to his dad.

Stewart said that he, his wife, and Terry drove down to Rodney Stone to talk with Jack and see what they should do. They ended up deciding that they should go over to Holley Brothers and take some pictures because they thought Holley may have been taking some materials off the back part of the quarry and Stewart said they didn’t want to be responsible for reclaiming land they weren’t using, thus the need for pictures.

Walter drove his truck, Jack drove his truck, and all four went to the quarry. They were up on the hill when Merry and Holley pulled up in Holley’s pickup. Holley pulled his truck around so that the driver’s side doors of he and Stewart’s trucks were facing each other approximately six feet apart, according to Stewart. He said Jack and Terry Stewart then drove to the back of the quarry in Jack’s truck to take their pictures.

He testified that after Holley pulled up, he asked about Stewart’s new truck and Stewart talked about having transmission trouble with his old one. He said Holley then asked why Stewart hadn’t paid him any money this month. Stewart said he didn’t figure he owed him any money because Holley’s son had taken approximately $1,200 worth of stone that he didn’t take across the scales, indicating that Holley would take care of it.

According to Stewart, Holley said he figured they owed him some money and Luanne Stewart interjected and said they weren’t dealing with him, they’re dealing with Merry. At that point, Stewart said Merry started talking about Jack stealing her dad’s telephone number, presumably for his business at Rodney Stone, and a computer, which later testimony by Luanne alleged had been struck by lightning and replaced.

Stewart said Merry started yelling at them and her face turned “red as fire.” He said she then brought up the 12 gauge shotgun and aimed it at them from the passenger seat. According to Stewart, he thought she was going to shoot so he grabbed his gun and shot as quick as he could. He said he shot at Merry, but hit Holley. Merry then slid out the passenger side door and he fired two more shots at her that also missed, Stewart testified. He said he then saw her through the glass and shot two or three more times at her, all from the driver’s seat of his truck. He said he then waited a little bit and didn’t see Merry come up so he walked around Holley’s truck and saw her lying there amid a large amount of blood.

Stewart maintained that had he not shot her, she would have shot him and he did not have time to drive away since his truck was not running at the time of the altercation. He said that he had not seen the shotgun prior to Merry aiming it at them and it all happened within a matter of seconds. He also testified that he’d heard Merry had pulled a gun in the past on more than one occasion, leading him to believe that she would have shot him.

Stewart testified that David Merry came on the scene after the shooting occurred and he never fired his weapon at him. He also said that he always kept that gun loaded in his truck and later testimony by Luanne and Terry corroborated those statements.

Testimonies later given by Luanne and Terry on the witness stand were largely consistent with prior testimonies as to the sequence of events. However, Luanne said she did not tell Det. Chad Wallace that Holley had pulled a gun on them in the past, which he indicated during his testimony Monday. She said Holley had never pulled a gun on them at any time. The rest of her testimony matched her husband’s version of events fairly well.

Keith Robie was also called to testify by the defense since he and his son were hauling stone from the quarry around the time of the shootings. He said he heard six gunshots fired that day, two in quick succession, a pause, another gunshot, another pause, and then three more quick shots.

Court is scheduled to reconvene today at 8:45 a.m.