Thomas Payton lived about two months in the home of Billy and Travis Embry-Martin while in foster care, along with his younger brother and sister and two other children.
During that time, Thomas said he heard his sister, Summer, and brother, Hunter, being disciplined by both men.
He testified Monday morning his siblings would be taken into a bathroom and spanked. He said he heard them getting slapped and he heard them cry.
“When they got into trouble, they would get spankings,” said Thomas, now 13 and a sixth-grade student. He said the spankings typically would occur for not eating, not picking up after themselves or for having accidents such as wetting themselves.
“I kind of heard them smacking them,” he said. “I would hear a smack and then they would cry.”
He said the discipline happened “a couple of times a week.”
Thomas, wearing a red shirt, khaki pants and white glasses, was one of several people to take the witness stand Monday as testimony in the murder case against Billy Embry-Martin, 34, came to a close. Embry-Martin is charged in the May 10, 2017, death of Hunter, 4. Their sister was around 2 at the time of her brother’s death. Payton died from blunt force trauma to the back of his head.
Thomas sat and listened to questions from Assistant Commonwealth’s Attorney Teresa Logsdon and defense attorney James Hafley, occasionally shifting in his seat and giving direct answers to dozens of questions.
He was at school May 8, 2017, when Hunter was taken from the Embry-Martin home to Hardin Memorial Hospital with a head injury and then flown to Norton Children’s Hospital.
Less than 48 hours after suffering a head fracture, Hunter died.
Billy Embry-Martin was at home that day with Hunter and Summer. He testified in court Friday and said in a 911 call he was putting away dishes from an early afternoon meal with the children when he heard a thud and then saw Hunter get up and say, “Me OK.” The child then walked into the living room and collapsed, according to his testimony.
Thomas said he never was told what had happened to Hunter, but knew “Hunter got hurt there and we had to leave.” He said once he didn’t like living with the Embry-Martins mostly because of the discipline in the home.
“Sometimes I would and sometimes I wouldn’t,” he said. He did say he enjoyed working in the garage with Travis Embry-Martin. He said he was not spanked while in the Embry-Martin home.
Thomas said he didn’t tell anyone about the spankings such as a case worker or his parents, who he would see for an hour every two weeks.
“I was scared to tell them that I didn’t like living there because I didn’t want to make anyone mad,” he said to a question from Hafley. He and his sister remain in foster care in a neighboring county.
Thomas described Hunter as “the best brother I could ever have. He was sweet and loved everybody.”
Among the others to testify Monday on the fourth full day of the trial was a neighbor of the Embry-Martins and a close friend.
Cara Kramer said she knew the Embry-Martins from their children playing youth soccer together. She said her family had been to the Embry-Martins twice at Thanksgiving and once at Easter.
She described Billy Embry-Martin as “an overall good human being.”
“It’s destroyed him that he can’t be around kids,” she said.
Seated at the defense table, Embry-Martin wiped away tears as Kramer left the courtroom.
She said she allowed a daughter to spend the night at their home and said that’s not something she usually permits. Kramer said the Embry-Martins were “trusted.”
Neighbor Carol West said she frequently saw Billy Embry-Martin in the backyard playing with the children, including May 8, 2017.
She said she “talked at him (Hunter).”
“He would just kind of look at you,” she said. “That was typical.”
West said Embry-Martin didn’t appear to be unusually tired or frustrated May 8, 2017.
“He was typical Billy,” she said. “He seemed fine.”
She said she saw him in the backyard sometime between noon and 1 p.m. the day Hunter lost consciousness and never recovered, reportedly from falling backward from a seating area 26 inches to a flat surfaced floor.
According to an autopsy performed the day after Hunter’s death, the child died from an “inflicted closed head injury” and he had a depressed skull fracture, meaning the fracture pushed into his head.
The jury is expected to hear closing arguments Wednesday morning in the case. If found guilty of murder, Embry-Martin will be sentenced to 20 to 50 years, or life in prison.