Testimony Given in Death of Mortician : Poison: The prosecutor says the rival undertaker developed an animosity that led him to kill the victim with oleander.

Testimony began Monday in the preliminary hearing of a Pasadena undertaker accused of poisoning a rival mortician with oleander, a crime prosecutors say is the first case of its kind in the country.

David Wayne Sconce, 33, faces charges of murder in the death of Timothy Waters, 24, who died in a Camarillo Hospital the day after Easter, 1985.

Sconce is serving a five-year sentence for ordering two men to beat Waters. He also is serving five years for stealing dental gold from bodies and disposing of up to 8,000 bodies a year in multiple cremations at his family’s Pasadena Crematorium in Altadena--violations of funeral home laws that prosecutors have made the cornerstone of their case.

Minutes into Sconce’s preliminary hearing in Ventura County Municipal Court, the prosecutor admitted that he cannot prove that Waters even saw Sconce just before he died on April 8, 1985.

“It’s our Achilles’ heel,” said special prosecutor Harvey Giss, a Los Angeles County deputy district attorney appointed to the case because of his familiarity with the Pasadena cases.

But Giss told Judge John J. Hunter he will present testimony on a chain of events that proved Sconce felt increasing animosity toward Waters for discussing the funeral home violations, and poisoned him with oleander, a toxic plant that grows wild throughout Southern California.

Waters spent the night of April 5 house-sitting his sister’s house in Zuma and eating Chinese food while watching television with his best friend, testified the friend, Scott Sorrentino.

They ate from the same cartons, and Waters seemed healthy the next morning, Sorrentino testified.

But Waters grew ill on Saturday and by April 7, Easter Sunday, “he looked terrible,” testified his sister, Susan Waters. “He was sweating very much and he had no coloring in his face at all. He said he was really, really sick, the sickest he had ever felt.”

She testified that she threw the Chinese food away and later ruled it out as the cause of her brother’s illness when she learned Sorrentino did not become ill.

Susan Waters said her brother apologized for leaving a shattered water glass where he had dropped it in her laundry room because “he was too weak to pick it up.”

On Sunday, Timothy Waters managed to eat Easter dinner with about 30 friends and relatives at his parents’ house in Camarillo, testified his mother, Mary Lou Waters.

But on Monday, he looked even worse, testified Mary Lou Waters, who described watching her son die.

“He said, ‘I’m so cold, Mother, get me an afghan,’ ” she said. “I said it wasn’t cold, but I got him an afghan and he went to lay down. In about five minutes his eyes started rolling back in his head, and I thought he was teasing, I said, ‘Tim, stop it!’ And then I realized what was happening.”

Timothy Waters’ family called paramedics, but he died in a hospital a few hours later, his mother testified.

At the time, Ventura County Coroner Dr. John Holloway ruled that Waters, who weighed more than 300 pounds, died of a faulty heart, swollen lungs and malfunctioning liver, testified the current coroner, Dr. F. Warren Lovell.

However, on learning that the Los Angeles County district attorney’s office suspected Waters was poisoned with a plant extract described in a book titled “The Poor Man’s James Bond,” Lovell began consulting toxicologists here and in other states. Lovell said he sent samples of Waters’ body tissue and fluids in January, 1988, to Dr. Frederick Rieders, a prominent Philadelphia toxicologist. Seven months later, Rieders concluded that there was enough oleander in Waters’ system to have killed him, Lovell said.

During his opening statement, Giss said Waters had told another undertaker, Richard Gray, that Sconce was stealing gold teeth he had pulled from bodies and cremating up to 8,000 bodies a year.

Giss said he will present witnesses to testify that Sconce “told several people, ‘If anybody ever tries to interfere with what I’m doing here . . . I will kill them.’ ”

Giss said that Sconce twice “hired two thugs to beat Mr. Waters.” They collected a $1,000 fee after falsely telling Sconce that the beating was carried out, but later carried out the beating of Waters on Feb. 12, 1985, a crime to which Sconce and the assailants later pleaded guilty, Giss said.

Roger Diamond, Sconce’s court-appointed defense attorney, sought to weaken the prosecution’s accusation that his client was the only one who could have murdered Waters.

Diamond asked Waters’ sister whether she kept any toxins in her house or oleander plants on her property, but she answered no to both questions.

Diamond also asked the victim’s mother, sister and best friend whether Waters was homosexual and whether there was any truth to a statement by Richard Gray that Waters picked up men on Santa Monica Boulevard and brought as many as two or three a day to his hotel room in Burbank. All three said Waters was heterosexual and had never done what Gray allegedly described.

The three also denied any knowledge of Diamond’s suggestion that Waters had vandalized Gray’s car or angrily turned over a table during a meal with him.

Sconce has vowed that he will move to have the body of Waters exhumed to prove there is no trace of oleander in Waters’ system.