The preliminary hearing for a Turlock restaurateur accused of setting fire to his popular eatery, got underway Tuesday, but because of scheduling conflicts, the hearing won’t conclude and a ruling won’t be issued for more than a month from now.
Tracy Smith and his cousin Jeremy Britt are accused of burning down the Red Steer restaurant. The Stanislaus County District Attorney’s Office contends Smith was motivated to set fire to the eatery because business was declining and he was badly in debt.
The preliminary hearing is being held to determine if there is enough evidence to hold Smith and Britt over for trial. Smith is facing a charge of arson and Britt is charged with aggravated arson, because he has a prior conviction for arson.
Smith also has separate cases against him unrelated to the fire, alleging he passed checks with insufficient funds to cover the amounts.
The Red Steer was severely damaged during a fire on May 28, 2009. A street sweeper reported seeing smoke come from the building at 203 S. Golden State Blvd. at 4:18 a.m. The eatery has been closed since that day, though a second location opened in Modesto.
The first witness of the day was Turlock City Fire Department Capt. Jason Bernard, who testified there was a strong odor of gasoline present inside the building.
During his investigation of the fire, Bernard found multiple sites that showed evidence of gasoline and that nine samples were collected and sent to the Department of Justice for analysis. All the samples came back positive for flammable liquid, Bernard said.
A review of all the major appliances in the restaurant ruled out an electrical fire, Bernard testified.
The investigation revealed that the fire started in the attic.
During Turlock Police Detective Jason Tosta’s testimony, the prosecution laid out evidence of Smith’s mounting debts.
Tosta stated he had spoken to a couple of vendors and business owners who said they were owed substantial amounts of money from Smith and/or the Red Steer. One food company owner told Tosta that Smith owed him $58,000 and that his food was only deliverable by cash payments, plus an additional $1,000 payment. The day before the fire the food was not delivered because the money was not there, Tosta said.
Tosta testified that when he started adding up the debts they were “well in excess of $1 million.”
During separate interviews with the detective, both Smith and Britt said they had been working at the restaurant hours before the fire was reported and that the alarm was damaged during their work.
Tosta testified that Smith told him during one of those interviews that numerous payroll checks from the restaurant had bounced and that he was “bleeding it dry” to save his framing company that was struggling as the housing market tanked.
Deputy District Attorney Samual Getrich presented evidence that on the day before the fire both Smith and Britt had been questioning other business owners in the area if they used surveillance cameras. Both men were picked out of photo line-ups. Britt allegedly told the business owners he was asking because his vehicle had been broken into. Tosta testified an auto burglary report had been made for Britt 53 days prior to the fire.
During the hearing Tosta testified that suspicions about Smith’s involvement in the arson grew when the detective learned from the insurance company that Smith was seeking an early pay-out. The insurance company representative told Tosta that was “absurd” because Smith would get far less money than if he just waited for his settlement. Smith told Tosta during their interview that he was seeking an advance not an early pay-out.
Smith’s attorney, Alexandria Carl, put forth the argument that the majority of the $1.1 million insurance coverage would have gone to the mortgage company.
Britt is being represented by defense attorney Kirk McAllister.
The testimony is set to resume at 9:30 a.m. March 25 in Department 2 of Stanislaus County Superior Court.
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