1 – Brenda Van Dam’s testimony

Brenda Van Dam testimony – I
based on transcript from June 6th 2002

The clerk: would you please state your name and spell it for the record.
The witness: Brenda Van Dam. b-r-e-n-d-a v-a-n d-a-m.

Dusek: good morning, mrs. Van Dam.
Brenda: good morning.
Dusek: you ready?
Brenda: yes.
Dusek: how old are you, ma’am?
Brenda: thirty-nine.
Dusek: what part of the county do you live in?
Brenda: excuse me?
Dusek: what part of the county do you live in?
Brenda: Sabre Springs.
Dusek: how long have you lived up there?
Brenda: four years.
Dusek: do you work, ma’am? do you have a job?
Brenda: not from the home. I have a small business in the home.
Dusek: what type of work do you do?
Brenda: I sell library books to school libraries.
Dusek: how long have you been doing that?
Brenda: only since august. of last year.
Dusek: what hours does that require you to do your work?
Brenda: I make my own appointments when I want to make them, so that way my children are in school I can do appointments, and when they are at home, i’m home with them.
Dusek: all right. how many children?

Brenda: three.
Dusek: who’s the oldest?
Brenda: Derek.
Dusek: how old is Derek?
Brenda: he is ten.
Dusek: what grade is he in?
Brenda: fourth.
Dusek: who is your next child?
Brenda: Danielle.
Dusek: how old was she?
Brenda: seven.
Dusek: if you want some time, ma’am, i think once the first cry is over, then usually you’re able to go.
Brenda: okay.
Dusek: do you want to try to continue? i’m sorry. what grade was she in?
Brenda: second.
Dusek: and the youngest child?
Brenda: Dylan.
Dusek: how old is Dylan?
Brenda: today is his birthday. he turned six.
Dusek: and what grade is Dylan in?
Brenda: kindergarten.
Dusek: where is the school that they go to?
Brenda: it is on Springhurst.
Dusek: how far is that from your house?
Brenda: it’s about a ten-minute walk.
Dusek: how do they get to school?
Brenda: usually i drive them, but I did let Danielle and Derek walk to school together once in a while.

Dusek: would there be times when you would walk with them?
Brenda: yes.
Dusek: you’re married, is that correct?
Brenda: yes.
Dusek: to whom?
Brenda: Damon.
Dusek: how long have you been married to Damon?
Brenda: thirteen years.
Dusek: did you get married here in california?
Brenda: no.
Dusek: where were you married?
Brenda: Florida.
Dusek: when did you move into the home there in Sabre Springs, about?
Brenda: april.
Dusek: of?
Brenda: eighty — i mean ’98, ’99.
Dusek: how long do you think you’ve been there?
Brenda: we’ve been there four years.
Dusek: do you know if you were the first occupant of your home?
Brenda: no. we weren’t.
Dusek: so you bought it from someone else?
Brenda: yes.
Dusek: do you know the people in your neighborhood?
Brenda: yes.
Dusek: all of them, some of them, can you tell?
Brenda: a few of them.
Dusek: did you know an individual named David Westerfield before this thing happened?
Brenda: yes.

Dusek: did you know him by name before this happened?
Brenda: yes.
Dusek: do you see him here in court today?
Brenda: yes.
Dusek: would you point him out, please, and describe what he’s wearing today.
Brenda: he is right there in a gray suit and a white shirt and a purple tie.

the court: the record will reflect identification.

Dusek: do you know if he was living in the neighborhood before you moved in?
Brenda: yes, he was.
Dusek: when you first moved in, did you have any contact with mr. Westerfield?
Brenda: no.
Dusek: why is that?
Brenda: i just never talked to him.
Dusek: any other contacts with him — let me ask you this: when you drive to your house there on mountain pass, do you have to go by mr. Westerfield’s house?
Brenda: yes.
Dusek: is he on the same side of the street as you?
Brenda: yes.
Dusek: did you ever see him or contact him when you were driving back and forth?
Brenda: I would wave.
Dusek: how would he respond?
Brenda: he would wave.
Dusek: would you do that with other neighbors in the neighborhood?
Brenda: yes.
Dusek: until — how many contacts would you say, face-to- face, personal contacts, that you’ve had with mr. Westerfield?
Brenda: four or five.
Dusek: can you remember the first contact where you actually had a chance to speak with him?
Brenda: no.
Dusek: how about regarding the incidents that we’re here in court for today?
Brenda: yes.
Dusek: did you have several contacts around that period of time?
Brenda: yes.
Dusek: about how many?
Brenda: i sold girl scout cookies with Danielle twice.
Dusek: one time would be this year selling girl scout cookies?
Brenda: yes.
Dusek: was there another time?
Brenda: the year before.
Dusek: did you actually have contact with him on the 2001 cookie sale?
Brenda: yes.
Dusek: do you remember anything about that contact?
Brenda: he invited us in. we stepped into his house, sat on the couch while he filled out the cookie form. and his kitchen was taped up with plastic.
Dusek: what did it look like was going on?
Brenda: there was a remodel going on.
Dusek: how long would you say you spent back in the cookie sale in 2001?
Brenda: approximately ten minutes.
Dusek: did you remember his name after that exposure to him?
Brenda: no.
Dusek: describe what you do when you sell girl scout cookies.
Brenda: well, Danielle would ring the doorbell. and she will tell them that she was selling girl scout cookies. and the neighbor would fill out the form. we turn the form in, and then at a later date we would actually deliver the cookies.
Dusek: would Danielle go out alone selling the cookies?
Brenda: no.
Dusek: why not?
Brenda: because I don’t allow her to go out alone.
Dusek: who went with her when she was selling the cookies?
Brenda: I did.
Dusek: now, after that 2001 cookie sale, again you went back to his house selling cookies this year.
Brenda: yes.
Dusek: were there any other houses that you went to?
Brenda: yes.
Dusek: describe how you try to get your cookie sales.
Brenda: well, we first started out two doors down from our house, completed that side of the street, crossed over, went down the street in front of us, and we turned the corner and went down a couple houses because we knew one of the ladies there, and then we crossed over and went down to the corner of Briarleaf and mountain pass, and then we crossed over Mountain Pass, and his house was the last house we went to.
Dusek: do you remember what time of day it was when you went to his house this year?

Brenda: it was probably — it was in that evening.
Dusek: sun up or down or light or dark, anything like that?
Brenda: it was light.
Dusek: do you remember when it was?
Brenda: it was the Tuesday prior to when Danielle was. . .
Dusek: taken?
Brenda: taken.
Dusek: how can you remember Tuesday now?
Brenda: I can remember Tuesday because of a comment that he made to me.

Dusek: all right. we will get to that. Who went with you selling girl scout cookies this time?
Brenda: Danielle and Dylan.
Dusek: Dylan is the youngest of your children?
Brenda: yes.
Dusek: why did he go along?
Brenda: there was no one home to be with him. Derek had a play date that afternoon with a friend.

Dusek: what’s a play date?
Brenda: we just make arrangements for him to play at a friend’s house for a few hours after school.
Dusek: describe for us what happened when you and Danielle and Dylan went to mr. Westerfield’s house regarding the cookies.
Brenda: when we went to mr. Westerfield’s house, he invited us in. I asked him if I could see the remodel.

Dusek: the kitchen area that you had seen?
Brenda: the kitchen area. and so we went into the outer part of the kitchen area.
Dusek: why did you want to see the remodel?
Brenda: I was actually considering changing the knobs on our whole kitchen. and I had been looking at kitchen items. and I wanted to just take a peek.
Dusek: let me show you what we have marked as court’s exhibit 28, this photo display board labeled at the top “Westerfield residence exterior.” it has it looks like four photographs labeled a through d.

(photoboard containing four photographs marked trial exhibit number 28 for identification.)

Dusek: do you recognize what we have depicted there, ma’am?

Brenda: the front of his house.
Dusek: that’s photograph a?
Brenda: the photograph a is the front of his house. photograph b is the side of his house, the corner of the street there.
Dusek: do you recognize what photographs c and d are?

Brenda: they are his backyard.
Dusek: all right. you indicated you went into his residence with Danielle and Dylan.
Brenda: yes.
Dusek: we’ve marked as court’s exhibit 29 another photo display board labeled at the top “Westerfield residence downstairs.” let me get it down here because i’m more concerned about the photographs labeled a, b, c, d, and e.

(photoboard containing eleven photographs marked trial exhibit number 29 for identification.)

Dusek: do you recognize what we have depicted there, ma’am?
Brenda: that is his dining room.
Dusek: referring to photograph a.
Brenda: photograph a. this is actually the kitchen area, and i stood right here.
Dusek: that’s in photograph b. and you’re referring to the bar stools next to the counter.
Brenda: next to the counter.

Dusek: all right. That’s all i need for right now. did Danielle have to wear anything special when she went selling girl scout cookies, a uniform or anything?
Brenda: she was supposed to wear her uniform.
Dusek: did she?
Brenda: no.
Dusek: describe for us what happened when you made contact with him that day selling the girl scout cookies.

Brenda: Danielle and Dylan and I went inside. we were standing in the dining room area. I was standing next to the counter. he filled out the form, the cookie form, on the counter.
Dusek: did the kids remain with you the entire time you were in the house?
Brenda: Danielle and Dylan wanted to go out to the backyard to see the pool.
Dusek: how do you know they wanted to do that?
Brenda: they came to me and asked me if they could.
Dusek: do you recall where you guys were when that happened?
Brenda: standing at the counter.
Dusek: in the kitchen area?
Brenda: in the kitchen area.
Dusek: what happened when they asked to go look at the pool?
Brenda: I asked him if it was okay with him. and he said yes.
Dusek: him is?
Brenda: mr. Westerfield.
Dusek: did you know his name at that time, remember his name at that time?
Brenda: I didn’t know his name. I could not read his writing on the cookie form from the year before. i never — I didn’t know his name.
Dusek: once you gave the kids or mr. Westerfield gave the kids the okay, what happened to the kids?
Brenda: they went out to the back for a few minutes.
Dusek: did you have your eye on them or not?

Brenda: I could hear them, and I could see them a little bit.
Dusek: did the defendant say anything about the kids as they went outside, what to do or what not to do?
Brenda: he said don’t get too close to the edge; don’t fall in.
Dusek: was there any discussion between you and the defendant while the kids were outside?
Brenda: yes, there was. mr. Westerfield was at Dad’s cafe the Friday before.

Dusek: so that would be three or four days before the cookie sale?
Brenda: exactly.
Dusek: had you been there also?
Brenda: yes, I was.
Dusek: we’ll get to that in a minute, but continue with what you discussed.
Brenda: I was with two of my friends. he was very interested in one of my friends.
Dusek: how do you know that?
Brenda: he said your friends look like a lot of fun.
Dusek: who are your friends’ names?
Brenda: Denise and Barbara.
Dusek: those were two gals you had been at Dad’s ?
Brenda: yes.
Dusek: what else did the defendant say?
Brenda: he said to tell Barbara that I had a rich neighbor that I could introduce him to.
Dusek: what did you say or do?
Brenda: I told him that this, the coming Friday , that they were trying to talk me into going out, but my husband had planned to take Derek snowboarding.
Dusek: where was he supposed to go?
Brenda: to Big Bear.
Dusek: do you know where he was going in Big Bear?

Brenda: snow summit.
Dusek: how long he was going to stay or when he was going to go up?
Brenda: he was going to leave Friday , and they were going to return on sunday.
Dusek: did you tell the defendant that?
Brenda: I didn’t tell him which days they were leaving coming back.
Dusek: what did you tell him about you might be back at Dad’s ?
Brenda: I told him that I would — if I was going, that I would have to find a babysitter. and I didn’t know if that was going to happen. but i also told him if I was there, I would introduce him to Barbara.
Dusek: how did the defendant react?
Brenda: he liked the fact that he might get to meet Barbara.
Dusek: did you guys discuss anything else while you were there in the kitchen area?

Brenda: yes, we did.
Dusek: he made a comment to me. he asked me — well, when i — he asked me why I didn’t introduce him to my friends.
Dusek: what did you tell him?
Brenda: I said i don’t even know your name; how could I have introduced you to them. and he said, well, hi, i’m David Westerfield. and he gave me two of his business cards.
Dusek: did you take the cards?
Brenda: yes, I did.
Dusek: did you shake hands?
Brenda: i don’t recall.
Dusek: what happened then?
Brenda: and then he said why don’t you write you and your husband’s name down on this piece of paper. and he said I have parties.
Dusek: all right.
Brenda: I have barbecues where the kids come and people bring their own food to cook. and i also have — he has family parties and I have adult parties.
Dusek: what did you say?
Brenda: i finished writing my name down and gave it to him.
Dusek: why did you do that?
Brenda: I was in the middle of writing it down. I didn’t feel like ripping it up and taking it away and being rude. he referred to the adult parties as barbecues also.

Dusek: all right. Let me show you what we have marked as court’s exhibit 35, a brown envelope that contains a looks like a notepad with Prudential real estate with some writing at the top.

(brown paper bag and contents [notepad] marked trial exhibit number 35 for identification.)

Dusek: do you recognize that, mrs. Van Dam?
Brenda: yes.
Dusek: what is that?
Brenda: that’s my handwriting and my name and my husband’s name and the phone number.
Dusek: can you hold it up so we can see it.
Brenda: (the witness complied.)
Dusek: all right. you’re doing that. So we don’t lose it, let’s put it back in the bag and get it off the table. What did you do with the name and address after you filled out the information, ma’am?

Brenda: i gave it to David Westerfield.
Dusek: did you guys discuss anything else while you were there at his house?
Brenda: well, we went out front, took the kids, and we went out front, and they were playing on the rocks.
Dusek: was it — before you went outside, was there any discussion regarding “in cahoots”?
Brenda: actually that happened while we were out front.
Dusek: all right. Brenda: what happened is —
Dusek: let me stop you before we go out front. how long would you say the kids were out back looking at the pool?
Brenda: about three minutes.
Dusek: then where did they go?
Brenda: they stayed with me.
Dusek: where in the —
Brenda: in the dining area they stood with me.
Dusek: when did they go upstairs?
Brenda: no one ever went upstairs.
Dusek: how do you know?
Brenda: because Dylan asked me if he could go upstairs, and I told him absolutely not.
Dusek: why?
Brenda: and David Westerfield said, oh, you can go upstairs. go ahead. and I said no, he can’t.
Dusek: who did the — who did Dylan obey, you or mr. Westerfield?
Brenda: me.
Dusek: where did he go then, your child?
Brenda: he stayed in the dining room with me.
Dusek: did you see them go in any other rooms downstairs?
Brenda: no.
Dusek: do you remember any laundry, clothing, loose articles in the family room or living room area on the couch or chairs?
Brenda: actually the house was very tidy.
Dusek: what do you mean by that?
Brenda: it was clean and spotless.
Dusek: you didn’t see any loose articles on the couches there in the family room or living room?
Brenda: nothing.
Dusek: did the kids sit on anything while they were inside the house?
Brenda: no.
Dusek: was there any other discussion while you were still inside the house, ma’am?
Brenda: not that i recall.
Dusek: as you left, you were about to tell us about another conversation. where did that take place?
Brenda: we walked out in front of his house, on his sidewalk. and the neighbor had a little pile of rocks out front. i guess they were putting them in the backyard. the kids were playing on those, and we were standing on the sidewalk. and he started to talk about “in cahoots” and that they have wednesday night specials. and he was going there the next night. and he said i should come along and bring my friends. and I told him i don’t go out during the week. i don’t go out very often. and as I was leaving, he said don’t forget to wear your boots to “in cahoots.”

Dusek: did you know what “in cahoots” was?
Brenda: I had no idea.
Dusek: do you know where it is?
Brenda: no.

Dusek: did he actually fill out the forms for the cookies?
Brenda: yes.
Dusek: let me show you what I have previously had marked as court’s exhibit 34, looks like this multi-page document, it appears to be two pages connected together with a stapler here in court.

(girl scout cookie order form marked trial exhibit number 34 for identification.)

Dusek: do you recognize what this is?
Brenda: it’s the girl scout cookie form.
Dusek: if you could hold it up,. . .
Brenda: (the witness complied.)
Dusek: there’s a smaller form that’s on the top. what is that?
Brenda: this is the form that Damon took to work with him.
Dusek: and there appears to be some writing on it, some cookie orders. is that right?
Brenda: yes.
Dusek: those orders are ones he got at work?
Brenda: yes.
Dusek: underneath there appears to be a long form that unfolds. what is that?
Brenda: that is the form that Danielle and i took when we sold cookies together.
Dusek: could you hold up the form where you see all the orders that are taking place.
Brenda: (the witness complied.)

Dusek: was mr. Westerfield’s name on there some place?
Brenda: right here.
Dusek: it appears to be the dark black basic —
Brenda: by number twelve.
Dusek: could you read that writing?

Brenda: no.
Dusek: did he order some cookies?
Brenda: yes.
Dusek: there also appears to be a yellow sticky attached to the form. what is that?
Brenda: this year the girl scout council decided that they would like to donate some boxes of cookies to the men and women overseas, so they were taking donations. and that is actually showing that mr. Westerfield donated one box of cookies to be sent to them.
Dusek: and the other people’s names that are listed on that yellow sheet are people who did a similar purchase?
Brenda: yes. they’re all donating.

Dusek: all right. After you had the conversation regarding the rocks, did you then go about your business?
Brenda: yes. we went back home.
Dusek: how much were the cookies?
Brenda: four dollars a box.
Dusek: all right. now, i think you — i’m sorry.
Brenda: they may have been three dollars. I can’t remember.
Dusek: all right. Brenda: i’m sorry.

Dusek: you mentioned that at this cookie-selling situation there was a discussion regarding a previous contact with the defendant. is that correct, you had seen him a couple days before?
Brenda: at the Dad’s ?
Dusek: that’s what i’m talking about.
Brenda: yes.
Dusek: which day of the week was that, do you remember?
Brenda: a Friday.
Dusek: do you remember the date?
Brenda: january 25th.
Dusek: had you gone there to Dad’s ?
Brenda: yes.
Dusek: who did you go with?

Brenda: Denise and Barbara.
Dusek: was there a reason for going?
Brenda: yes, there was. Denise was moving out of town. and they actually wanted to go to Dad’s the Friday that Damon had planned to take Derek snowboarding, and I told them that i probably wouldn’t be able to go that weekend because there was already plans made. and so we went the Friday before.
Dusek: had you been to Dad’s before?
Brenda: yes.
Dusek: so the trip on the 25th was your second time to Dad’s ?
Brenda: actually that was my third time to Dad’s .
Dusek: over what period of time?
Brenda: since I lived there.
Dusek: do you remember the other two times you had been to Dad’s ?
Brenda: the first time I went to Dad’s we were out with Liz and Rich brady, and it was his birthday. and we went there after dinner and had a quick drink. and then we left. The second time I went there I had gone to dinner with Denise. and that’s when i first met Barbara. she brought Barbara along. Denise and I were going to go to dinner. and then we were going to go paint ceramics.

Dusek: how long ago was that?
Brenda: that was probably last august.
Dusek: all right. Now I would like to go back to the 25th of january. how did you get to Dad’s that day?
Brenda: i drove.
Dusek: who did you drive?
Brenda: Denise and Barbara.
Dusek: so they had come to your place?
Brenda: yes.
Dusek: before you headed out to Dad’s on that occasion, did you do anything at the house with Denise and Barbara? was anything going on at the house?
Brenda: yes.
Dusek: what did you do?
Brenda: we smoked marijuana.
Dusek: where?
Brenda: in the garage.
Dusek: once you did that, did you go to Dad’s

Brenda: yes.
Dusek: who drove?
Brenda: i drove.
Dusek: about what time did you get over there, can you remember?
Brenda: we got over there about some time between 9:00 and 9:30.
Dusek: were you paying attention to the time?
Brenda: no.
Dusek: were you trying to keep track of it to remember now?
Brenda: no.
Dusek: what happened when you arrived?
Brenda: when we arrived, Denise talked to the person at the front for a while, and then we went to the bar. and David Westerfield was already there. he was there.
Dusek: did you know him by name at that point?
Brenda: no.
Dusek: did you know who he was?
Brenda: I knew he was my neighbor.
Dusek: did you know anything else about him?
Brenda: not a whole lot. I knew that he liked sand toys. i saw those out in front of his house.
Dusek: all right. Had he ever been to your home to your knowledge?

Brenda: no, not to my knowledge.
Dusek: had he ever been into your backyard to your knowledge?
Brenda: no.
Dusek: had he ever been into your garage to your knowledge?
Brenda: no.
Dusek: did you have any contact with the defendant there at Dad’s on the 25th?
Brenda: yes. he said hello. he asked me if he could buy us a drink.
Dusek: did he?
Brenda: he did.
Dusek: describe that.
Brenda: what he bought us?
Dusek: how he did it.
Brenda: oh, he just said can i buy you a drink. that was on the 25th?
Dusek: yes.
Brenda: yes.
Dusek: did you guys let him?
Brenda: we did.
Dusek: what did you drink?
Brenda: I had a cranberry and vodka.
Dusek: after he bought the drink, did you have any more contact with the defendant?

Brenda: we may have spoken one or two more times, but it was very limited.
Dusek: what were you doing there that evening?
Brenda: I was dancing with my friends, spending time with my friends.
Dusek: how much contact would you say you had with the defendant that day on the 25th, that evening on the 25th at Dad’s ?
Brenda: I may have spoken to him three times.
Dusek: do you remember the subject of what you spoke about, if you can?
Brenda: no.
Dusek: how long would you say you remained at Dad’s on the 25th?
Brenda: ’til about 1:30.
Dusek: did you do some drinking there?
Brenda: I did.
Dusek: what did you drink?
Brenda: cranberry and vodka. water. diet coke.
Dusek: how about your girl friends; were they drinking?
Brenda: yes.
Dusek: do you remember what they were drinking?
Brenda: Barbara drinks vodka and tonic, and Denise drank cranberry and vodka.
Dusek: when you say you were dancing on that occasion, who were you dancing with?
Brenda: all three of the girls were dancing together, and that was basically about it.
Dusek: how about any guys; were you dancing with any guys there on the 25th?
Brenda: i don’t recall.
Dusek: how about Brenda — or Barbara or Denise; do you know if they were dancing with any of the guys there?
Brenda: yes.
Dusek: how long did you stay?

Brenda: ’til about 1:30.
Dusek: do you know if the defendant was still there when you left?
Brenda: I have no idea.
Dusek: why not?
Brenda: because I wasn’t keeping track of him.
Dusek: aside from the contact you had with the defendant that you described for us here, can you remember any other contact with him on the 25th at Dad’s ?
Brenda: no.
Dusek: when you went home, who did you go home with?
Brenda: i drove Denise and Barbara back to my house so they could get their car.
Dusek: how many guys did you bring home?
Brenda: none.
Dusek: did you invite anybody to come home with you?
Brenda: no.
Dusek: was there a sex party at the house when you got home?
Brenda: there’s never been a sex party at my house.

Dusek: did they, once mom and dad or, i’m sorry, once Barbara and Denise got back to your house, did they remain at the area, at the house there for a while?
Brenda: no. they got right into Denise’ car and went home.

Dusek: all right. From that occasion your next contact with him was when you bought the cookies, is that right?
Brenda: yes.
Dusek: and then your next outing would have been — I would like to move up now to february 1st, that Friday. are you with me now?
Brenda: yes.
Dusek: you told us that there were plans for Damon to go to the mountains snowboarding type thing.
Brenda: yes.
Dusek: who was going to remain at home if that plan went through?
Brenda: Danielle, Dylan, and I.

Dusek: did there come a time when his plans to go snowboarding on that Friday changed?
Brenda: yes.
Dusek: when was that?
Brenda: thursday. Dusek: how did it change, do you know?
Brenda: he decided to go up with his friend bill libby on sunday instead.
Dusek: about when were those plans changed, can you tell us?
Brenda: thursday.
Dusek: thursday. Did you have plans for that Friday night?

Brenda: no. I was going to be with my children.
Dusek: did they eventually change?
Brenda: they did. since Damon was not going, I told him that Denise had called, and she wanted me to go. and he said, well, go ahead and go. so I went .
Dusek: was there a reason for this outing?
Brenda: because Denise was leaving.
Dusek: leaving what?
Brenda: she was moving away.
Dusek: did you make dinner that night?
Brenda: no, I did not.
Dusek: what did you do for dinner?
Brenda: i ordered pizza.
Dusek: where is the pizza place?
Brenda: pizza, domino’s.

Dusek: where is it from your house?
Brenda: it’s about a mile from our house.

Dusek: how did you get the pizza?
Brenda: i drove and got it.
Dusek: did you go with anybody?
Brenda: myself.
Dusek: where were the kids?
Brenda: they were at home.

Dusek: alone?
Brenda: yes.
Dusek: did you have any contact with them while you were getting the pizza?
Brenda: before I left actually i called Damon to see how far —
mr. Feldman: objection. not responsive.
the court: overruled. You can conclude your answer.

The witness: before I left, i actually called Damon and asked him how far away from home he was. and he said just a few minutes. so i ran out, got the pizza. and the entire time I was gone I was on the phone with Danielle, talking to her.
mr. Feldman: your honor, motion to strike. not responsive.
the court: sustained. You can cover it in other ways. The jury is to disregard the last comment.

by mr. Dusek:
Dusek: while you were driving to the pizza, were you speaking with anybody?
Brenda: yes. I was on the phone with Danielle the entire time.
Dusek: what were they doing when you left the house?
Brenda: they were watching t.v. in the family room.
Dusek: how long were you gone would you say?
Brenda: approximately six minutes.
Dusek: when you got home, was Damon there, do you know?
Brenda: he was.
Dusek: what happened when you got home?
Brenda: i took the pizza inside, and we got ready and ate dinner.
Dusek: who all had dinner with you?

Brenda: just our family.
Dusek: where did you eat?
Brenda: at the kitchen table.
Dusek: did some time that evening Barbara and Denise show up for the trip out?
Brenda: yes, they did. it was about 8:00 o’clock, maybe a little bit after 8:00.
Dusek: were you keeping track of the time?
Brenda: no, I was not.
Dusek: do you know if they came together or separately?
Brenda: they came together.
Dusek: what happened when they arrived? what were you doing, do you remember?
Brenda: actually when they arrived, I heard that they came up and Danielle and I went out front, and we hid behind the truck. and when they came around the corner, we booed them, and we scared them.
Dusek: then what happened?

Brenda: then we went inside, and I was cleaning up the kitchen some from dinner. Danielle continued to write and read at the table. the boys were playing video games.
Dusek: how about Barbara and Denise; what did they do when they came in, do you remember?
Brenda: they came in and said hello to the children, and then they were just standing in the kitchen talking to me while I was cleaning up.
Dusek: what’s the next thing that happened?
Brenda: we went into the garage.
Dusek: who did?
Brenda: Danielle — excuse me. Denise, Barbara, and I.

Dusek: what for?
Brenda: to smoke marijuana.
Dusek: were you smoking anything else besides marijuana?
Brenda: Denise and Barbara smoked cigarettes.
Dusek: was there any drinking going on in the garage?
Brenda: Denise and Barbara shared a beer.
Dusek: where did they get the beer?
Brenda: from the refrigerator in our garage.
Dusek: did anybody join you in the garage?
Brenda: Damon did.
Dusek: what did he do?
Brenda: he smoked marijuana.
Dusek: what do you mean smoked; did he have a separate cigarette?
Brenda: no. no. it was only one cigarette, and he took a couple puffs, and then he went back inside.
Dusek: how long would you say you remained out in the garage with the three girls, the two other girls, i’m sorry?
Brenda: we stayed out ten to fifteen minutes talking.
Dusek: do you remember anything happening out there while you were in the garage?
Brenda: we opened the side garage door to let some — let the smoke out.
Dusek: did anyone get or make a phone call?
Brenda: not that i know of.
Dusek: do you know if Denise received a phone call while she was there?
Brenda: i don’t.
Dusek: do you recall who opened the side door?
Brenda: no, i don’t.
Dusek: all right. What happened when you were done there in the garage?
Brenda: we all went inside.
Dusek: do you know if anybody closed that side garage door?
Brenda: no, i don’t.
Dusek: what happened when you got back inside?
Brenda: we went back into the kitchen, and I was doing some more stuff in the kitchen. Barbara was talking to Danielle. the boys were being very loud. they were playing video games and — and we just kind of talked a little bit.
Dusek: did you eventually leave?
Brenda: yes.
Dusek: about what time?
Brenda: I would say — I would say we left about 8:30.
Dusek: and who drove?
Brenda: I did.
Dusek: in which car?
Brenda: my Excursion.
Dusek: where did you go?
Brenda: we went to Dad’s .
Dusek: about how far away is that?
Brenda: it’s about four minutes away. 2.3 miles.
Dusek: how do you know that?
Brenda: because you asked me to drive there.
Dusek: when you got to Dad’s, do you remember where it was that you parked?
Brenda: I had to park behind Dad’s cafe.
Dusek: why?
Brenda: because the parking lot was pretty full.
Dusek: describe what Dad’s is.
Brenda: Dad’s is a restaurant during the day. and then there’s a certain time in the — at night that it turns into a bar.
Dusek: let me show you what I have previously had marked as court’s exhibit 30, a photo display board labeled at the top “Dad’s cafe and steakhouse, 12735 Poway road.” it has two aerial photographs, a and b.

(photoboard containing two photographs marked trial exhibit number 30 for identification.)

Dusek: do you recognize what we have depicted here, miss Van Dam?
Brenda: yes, i do.
Dusek: do you see Dad’s in either of these pictures?
Brenda: yes.
Dusek: using photograph a, which building is it?
Brenda: this one.
Dusek: the one that appears to have the red siding?
Brenda: yes.
Dusek: and also is that same building visible in photograph b?
Brenda: yes.
Dusek: and do you see the parking lot running around —
Brenda: yes.
Dusek: — the building?
Brenda: yes.
Dusek: do you see about where it was that you parked?
Brenda: it was right here.
Dusek: why don’t you take that red felt pen there in front of you and put a box about where your car was parked.
Brenda: (the witness complied.)
Dusek: all right. you’ve done that. thank you. in photograph b.
did you see any vehicles you recognized at Dad’s ?
Brenda: no.
Dusek: did you see any motor homes there?
Brenda: no.
Dusek: do you know whether or not mr. Westerfield has a motor home?
Brenda: yes, he does.
Dusek: you know what it looks like?

Brenda: yes.
Dusek: did you see it there that night?
Brenda: no.
Dusek: do you know if he had any other cars, any other vehicles that he drives around?
Brenda: he has a black S.U.V.
Dusek: did you happen to see that that night?
Brenda: no, I did not.
Dusek: describe for us what happened when you went inside.
Brenda: we went inside. we were talking to the gentleman at the door. you have to pay a little fee to get in. and we were talking to him for a few minutes. and then i noticed that mr. Westerfield was already at the bar. and I told Denise — Barbara, I had told her beforehand that he wanted to meet her. and I pointed him out to her.

Dusek: what happened?
Brenda: she went directly up to him and introduced herself to him.
Dusek: did you hear the exchange?
Brenda: the only part I heard was we weren’t — well, sorry, I hope you didn’t think we were being rude last week. and something to that nature. but that’s all I heard.
Dusek: who was saying that?
Brenda: Barbara was saying that to mr. Westerfield.
Dusek: did he appear to be with anybody when you first saw him there?
Brenda: no.
Dusek: did you expect any of your other friends to be there that night?
Brenda: no.
Dusek: what happened as you got in, after you got in and Barbara went up to the defendant?
Brenda: we all stood there for a minute, and then Barbara and Denise and i took a seat at the bar. and mr. Westerfield came up to us and said ladies don’t buy their own drinks, and he threw some money on the bar.
Dusek: did you ask him to do that?
Brenda: no.
Dusek: what happened after he threw the money on the bar and offered to buy drinks?
Brenda: we allowed him to buy us a drink.
Dusek: what did he buy you?
Brenda: I had vodka and cranberry, and that’s it.
Dusek: i think we have some photographs from — let me show you what’s been marked as court’s exhibit 31, another photo display board. this one is labeled at the top “Dad’s cafe and steakhouse.” it appears to have photographs a through e on there.

(photoboard containing five photographs marked trial exhibit number 31 for identification.)

Dusek: do you see what we’re talking about, ma’am?
Brenda: yes.
Dusek: photograph a, is that basically an exterior shot of the front of Dad’s ?
Brenda: yes.
Dusek: standing on what, Poway road or at least the area of Poway road?

Brenda: yes.
Dusek: do you see approximately where it was that you parked your car?
Brenda: you can’t see my car from here.
Dusek: why not?
Brenda: because my car is behind the building.
Dusek: okay. What do we have in photograph b?

Brenda: that’s the inside.
Dusek: showing what areas?
Brenda: this is the bar area.
Dusek: on the left-hand side of the photograph?
Brenda: on the left-hand side of the photograph is the bar area, and this is the dance floor.
Dusek: that appears to be on the central part of the photograph that now appears to have tables and chairs on the floor.
Brenda: yes.
Dusek: what does the floor material look like? is it wood?
Brenda: it looks like wood.
Dusek: on the right-hand side of photograph b, what does that show the area going to?
Brenda: this area is going to the pool tables. they’re back here.
Dusek: and that’s in the far side of photograph b?
Brenda: yes.
Dusek: are the pool tables in a separate room?
Brenda: yes.
Dusek: let me direct you down to photograph d. what does that area show?
Brenda: those are the pool tables.
Dusek: how many are there?
Brenda: two.
Dusek: are there any other games in that room?
Brenda: fooz ball and other video game.
Dusek: photograph c, what is that showing us, from what angle?
Brenda: this is actually the bar from the other side of the bar. this is the back door over here.

Dusek: the bar area that you referred to appears to be the turquoise-colored siding with the —
Brenda: this is the bar.
Dusek: which is the turquoise —
Brenda: yes. the turquoise siding is the bar. and this area with the wood floor is the dance floor. and this area that’s a little bit higher off the ground is where the band sets up.
Dusek: that’s on the left-hand side of photograph c?
Brenda: yes, it is.
Dusek: photograph e, what is that showing us?
Brenda: this is actually the smoking area where people go if they want to smoke a cigarette.
Dusek: is that in the front of Dad’s ?
Brenda: that is in the front right here.
Dusek: so that’s the area you’re pointing to on the photograph a?
Brenda: exhibit a, yes.
Dusek: where was it that you went with your two girls, girl friends, when you entered?
Brenda: we entered, and we walked right in here. there’s a guy at the door that lets you in.
Dusek: that’s on the right-hand side of photograph b?
Brenda: yes.
Dusek: and then you went — you said you went to the bar. where would that be?
Brenda: we came straight back here and went to the bar here.
Dusek: and that would be the corner of the bar on the left-hand side of photograph b?
Brenda: yes.
Dusek: you and who else?
Brenda: Barbara was already standing here with mr. Westerfield. he was here.
Dusek: right by the corner of the bar?
Brenda: yes. and Denise and i came up after.

Dusek: all right. after the defendant bought the round of drinks, you and your girl friends did what?
Brenda: we actually pulled out this center chair so that we could all sit together, because we were there to be together. we pulled out the center chair and scooted these two in so we could all talk.
Dusek: how were the chairs arranged?
Brenda: kind of in a triangle.
Dusek: so you would be looking at each other?
Brenda: yes.
Dusek: and what did you —
Brenda: we were talking.
Dusek: where was the defendant after he bought you the round?
Brenda: he was still behind me.
Dusek: was he included in your conversation?
Brenda: no.
Dusek: did you make any efforts to converse with him at that point?
Brenda: well, i felt guilty because I was in this seat, the first of the three, and my back was turned to him, and he had just bought us a drink. and we weren’t really talking to him, so i turned to him and said i’m not — i’m sorry. I hope we’re not being rude, but i came here to be with my friends.
Dusek: so what happened?
Brenda: and he said that’s okay.
Dusek: did any of your friends or acquaintances —
the court: we’ve got hands up. all right, ladies and gentlemen, we are going to take the morning break.


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