3 – Damon Van Dam’s cross-examination

Damon Van Dam’s cross-examination – I
based on transcript of Monday, June 5, 2002

Feldman: good afternoon, sir. Before you came to court today did you review anything to refresh your memory as to the events?
Van Dam: yes. I reviewed the reports done on my interviews with the police, and I reviewed the first, what was it, pretrial or whatever we did when I spoke last time.

Feldman: you mentioned that you had reviewed your I guess testimony. what you meant to say I think was you’ve previously testified in this case. isn’t that right, sir?
Van Dam: yes.
Feldman: and you testified under oath, right?
Van Dam: yes.
Feldman: and you’re aware that there was a transcript of that proceeding prepared.
Van Dam: yes.
Feldman: and you reviewed that transcript.
Van Dam: yes.
Feldman: and at the time on another occasion — this is not the first time you’ve testified under oath, correct?
Van Dam: correct.
Feldman: so what you’re telling us is you reviewed the transcript of your prior testimony under oath. right?
Van Dam: yes.
Feldman: in addition to that, have you met with the district attorney?
Van Dam: with Paul, yes.
Feldman: i’m sorry? you say Paul?
Van Dam: i’m sorry. Jeff.
Feldman: mr. Dusek?
Van Dam: yes.
Feldman: okay.
and when did you meet with mr. Dusek?
Van Dam: met with him earlier today. met with him yesterday.
Feldman: when did you meet with him yesterday, sir?
Van Dam: 5:00 o’clock, somewhere.
Feldman: who was with you?
Van Dam: when I spoke to him? just me and him.
Feldman: yes. Nobody else?
Van Dam: no.
Feldman: all right. Since yesterday has anybody spoken to you concerning any aspect of these proceedings?
Van Dam: no.
Feldman: you’ve not looked at any newspapers, sir?
Van Dam: no.
Feldman: you’ve not looked at any television, is that right?
Van Dam: that’s correct.
Feldman: you’ve not listened to any news, is that right?
Van Dam: no news concerning this.
Feldman: friends have not — you have friends in the courtroom today, don’t you, sir?
Van Dam: yes.
Feldman: you haven’t talked to anybody who was in the courtroom yesterday who passed on information concerning anything that was said.
Van Dam: no.
Feldman: have you spoken with your wife concerning any aspect of your testimony today?
Van Dam: no.
Feldman: yesterday when you were at the district attorney’s office, did you also — are you also aware as to whether or not your wife met with the district attorney?
Van Dam: she spoke with him, yes.
Feldman: did you and your wife speak with the district attorney together?
Van Dam: not concerning this, no.
Feldman: in other words, yes, just not concerning the subject matter of your testimony, sir?
Van Dam: correct.
Feldman: and how much time would you estimate you spent with your wife speaking with the district attorney yesterday?
Van Dam: all three of us together?
Feldman: yes, sir.
Van Dam: a few minutes.
Feldman: when you use the word few, what number comes to mind; what are you trying to communicate? that’s all i’m asking you.
Van Dam: five minutes. approximately.
Feldman: pardon me?
Van Dam: approximately.
Feldman: sir, when these events happened, you were questioned by a number of different law enforcement officers, isn’t that correct?
Van Dam: yes.
Feldman: specifically you spoke to a — well, do you recall the names of the officers?
Van Dam: no.
Feldman: do you recall speaking to a uniformed officer first thing?
Van Dam: yes.
Feldman: and if I told you that his name was Clark, might that refresh your recollection as to his name, sir?
Van Dam: I still couldn’t be sure.
Feldman: all right.
when you spoke with the first officer, was there anyone else present?
Van Dam: no.
Feldman: when you spoke with the first officer, you gave to that first officer the information as accurately as you possibly could, isn’t that right?
Van Dam: it was a very short version of what happened.
Feldman: all right. Following your very short rendition of what happened, did you have occasion to speak to another officer?
Van Dam: yes.
Feldman: and do you recall that this was an officer named Flores?
Van Dam: I believe I recognize Flores’ name.
Feldman: you told us that you had reviewed the police reports of your statements prior to coming to court. is that right?
Van Dam: yes.
Feldman: so you were aware that having reviewed those documents that on February the 2nd you spoke with officer Flores on three separate occasions, isn’t that right?
Van Dam: yes.
Feldman: and then on the 3rd of February, at approximately 1:42 in the morning, you spoke again with officer Flores and another officer named Thrasher. do you recall that, sir?
Van Dam: my recollection from reading the transcripts also was that there was only three meetings that went over into the morning.
Feldman: so, sir, are you telling me you did not speak with officer Flores at 1:42 in the morning in the company —
Van Dam: i’m saying that in my review of the documents that was our third meeting. I could be wrong, but that’s what I saw in the documents.
Feldman: and then after you spoke with officer Flores, be it your third or fourth meeting, do you recall speaking with an officer named Kramer?
Van Dam: no, I don’t recall Kramer.
Feldman: another female, a female named Kramer, or a female at least, sir.
Van Dam: not specifically.
Feldman: and then following your conversation with this other person, do you recall speaking with an officer named Thill, t-h-i-l-l?
Van Dam: no.
Feldman: and following your communication with officer Thill, do you recall —
mr. Dusek: objection. misstates the evidence.
The court: he doesn’t recall the specific item. rephrase the question. sustained.
by mr. Feldman:
Feldman: do you recall any communication somewhere around 5:00 o’clock in the afternoon at the either northeastern division or downtown with another officer named Redmond?
Van Dam: no.
Feldman: and do you recall once again on February the 7th speaking with an officer named Thrasher?
Van Dam: I know I spoke with Thrasher. I don’t know about the 7th.
Feldman: the first time the police talked to you, they told you it was very, very important for you to tell them the truth, isn’t that right, sir?
Van Dam: yes.
Feldman: and they communicated to you their belief that it was absolutely essential for them to know the names of every person that had ever been in your residence, isn’t that true?
Van Dam: that had ever been in my residence, no. that’s not true. that’s a pretty long list.
Feldman: pardon me?
Van Dam: every person that had ever been in my residence?
Feldman: well, we’ll say from the month before october, we’ll say from september of the year 2001 until the day of the event, they asked you to tell them the names of everyone that had been in the house, isn’t that true?
Van Dam: what interview are you talking about? i’m not clear on this.
Feldman: i’m just trying to start you chronologically, in whatever sequence you’re comfortable with. i’m just trying to establish didn’t the police tell you that it was in probably the first interview, maybe not the one with clark, but in the next one, that it was very important for you to communicate to them who had been in the house.
Van Dam: I don’t recall the police asking me that detail until much later.
Feldman: i’m sorry? until much later. what do you mean by that, sir?
Van Dam: days, a number of days.
Feldman: so you think that some days passed before any police officer asked you to communicate the names of everyone who had been in your house, is that right?
Van Dam: the names of everyone who had been in my house over the period from september?
Feldman: yes.
Van Dam: yes.
Feldman: isn’t it true, sir, that in your 1:42-in-the-morning interview on February the 3rd detective jody Thrasher speaking to you at the northeastern substation said, quote, what I need is the honest answers from you. okay? I need to know everybody that’s been in that house? do you remember that question?
Van Dam: my problem with this is your time period. she wanted — well, I don’t hear a time period there. and you just gave me a time period from september of 2001.
Feldman: do you recall whether or not your communications were tape-recorded?
Van Dam: some I know were tape-recorded.
Feldman: do you recall whether or not your first communication with detective Thrasher was tape-recorded or at least the communication on February the 3rd, 2002, at 1:42 in the morning?
Van Dam: no, I don’t recall.
Feldman: do you think looking at a transcript of the proceeding might refresh your recollection, sir, as to what was said and what was not said?
Van Dam: yes.
mr. Feldman: i’ve provided counsel, your honor, with a copy of a transcript.
mr. Dusek: we haven’t seen this before, your honor.
mr. Feldman: that’s okay. we just got the tapes last night. by mr. Feldman:

Feldman: sir, i’m giving you two transcripts. one is marked exhibit 26. one is marked exhibit 27. what i’m trying to focus you on at the moment is exhibit 27. again, directing your attention, you indicated to me that looking at the transcript of your tape-recorded interview might refresh your recollection as to the statements that were made to you during your interview with detective Thrasher at 0142 hours on February 3.

Feldman: and, sir, specifically directing your attention to page 2, you can see where it says s the second time at the top of the page. and then s the third time. first I would like you to please read that to yourself.
Van Dam: (the witness complied.) okay.
Feldman: having reviewed exhibit 26, did that now refresh your recollection that in fact officer Flores —
mr. Dusek: objection. improper refreshment, your honor.
by mr. Feldman: Feldman: — stated to you —
The court: at this point in time I believe that’s an incorrect statement. overruled. you may ask the question. by mr. Feldman:
Feldman: does having reviewed that transcript refresh your recollection now that officer Flores said to you at 0142 hours in the presence of detective Thrasher “what I need is the honest answers from you. I need to know everybody that’s been in that house”? that statement was made to you, wasn’t it?
Van Dam: yes.
Feldman: directing your attention to exhibit 27, although the sequence is incorrect with regard to the exhibit numbers, sir, 27 is a transcript of an interview by that same officer, officer Flores, with you conducted February 2nd at 1750, which is, I think, 5:50 p.m. do you recall being asked questions concerning the specific events that had preceded the disappearance of your daughter?
Van Dam: yes.
Feldman: and do you recall the officers telling you that it was essential that you tell them the truth?
Van Dam: yes.
Feldman: and you understood at that time that it was essential that you tell the truth, the complete truth, to the police, isn’t that right?
Van Dam: yes.
Feldman: however, it’s also the case, is it not, that you were making decisions as to what you believed to be relevant as opposed to what they were asking, isn’t that right?
Van Dam: yes.
Feldman: and as a result of your decisions, you decided what was appropriate for you to disclose and what was not appropriate for you to disclose, isn’t that true?
Van Dam: yes.
Feldman: and you lied to the police, isn’t that true?
Van Dam: moments before being told the gravity of the situation and how important it was, yes, I did. moments after that I told the truth.
Feldman: sir, you first talked to officer Clark at 9:40 in the morning, sir. you didn’t tell officer Clark about the events that occurred that evening with Barbara Easton, did you?
mr. Dusek: objection. argumentative and testifying.
The court: overruled. you can answer that yes or no.
the witness: I told officer Clark a very shortened story of what happened that night. many details were left out of what I told the first officer.
Feldman: among the details that you left out were your marijuana use the night preceding, isn’t that true?
Van Dam: yes.
Feldman: the fact that Barbara Easton had gotten in bed with you the night before, that’s true, isn’t it?
Van Dam: yes.
Feldman: the fact that your wife had had some form of communication from David Westerfield the wednesday preceding or thursday preceding, isn’t that right?
Van Dam: that doesn’t relate at all to anything.
Feldman: when the officers were talking to you, and specifically whether it be clark or Thrasher or Flores, they specifically told you that someone knew the layout of your house, isn’t that correct?
Van Dam: I assume so.
Feldman: and that that someone, whomever it may have been, likely knew that you had a dog, isn’t that correct?
Van Dam: I believe so.

Feldman: and the officers indicated to you that in their view the dog would have been familiar with whomever might have been in your house earlier in the day, isn’t that right?
mr. Dusek: objection. that’s hearsay.
The court: overruled.
did they indicate that to you?
mr. Dusek: it should not be offered for the truth, then.
The court: it is not for the truth of it, just simply that the statement was made.
the witness: I don’t recall that statement being made.
Feldman: so let me direct your attention back to exhibit 26. and look at, please, the first full paragraph on the page and the last three sentences up from the bottom of the first full paragraph.
The court: is that page number 1?
Feldman: yes, your honor. sorry.

Feldman: have you had a chance to review that, sir?
Van Dam: yes.
Feldman: it’s correct, is it not, that you were told that somebody knew exactly the layout of your house and they knew where Danielle’s room was? that statement was made to you, wasn’t it?
Van Dam: Steve Flores apparently made that statement.
Feldman: and Steve Flores also said they knew how to get in and out of your house and they knew about the dog, correct?
Van Dam: yes.
Feldman: and steve Flores said that they knew the dog wasn’t going to bite him or bark or you know what I mean.
mr. Dusek: objection. this is testifying to hearsay, your honor, for improper purposes.
The court: it is. unless there’s some valid reason. sustained.
Feldman: you understood when the officer was communicating with you that it was important that they get everything out in the open so that things don’t keep coming up and then having to keep reinterviewing you. correct?
Van Dam: correct.
Feldman: and by 1:42 in the morning on the 3rd of February, — let me back up for a moment. you first discovered or believed that your daughter was missing somewhere 9:30 in the morning on the 2nd, isn’t that right, sir?
Van Dam: yes.
Feldman: your interview with Flores, then, is approximately twelve to fifteen hours later, isn’t it?
Van Dam: yes.
Feldman: the interview with Flores that’s memorialized as exhibit 26, that occurs at 1:42 in the morning, correct? it’s at the very top of the page, sir.
Van Dam: it says 1:00 a.m.
Feldman: keep reading into the first sentence where it says: the time is.
Van Dam: okay.
Feldman: sir?
Van Dam: yes. I see it.
Feldman: that was the first time, was it not, after you had denied your marijuana use, never admitted to anything going on with Barbara Easton, that the officer said I need to know everything and told you that Barbara had talked to the other detectives, correct?
Van Dam: could you repeat that question?
Feldman: yes.
1:42 in the morning, in your communication with Flores and Thrasher, it was at that time for the first time that the officers told you they had talked with Barbara Easton and basically the cat was out of the bag. true?
Van Dam: true.
Feldman: now, you told me just I think a moment ago that it was only a couple of moments’ time between the time you decided it was appropriate not to tell the truth and the time you decided it was appropriate to tell the truth. do you recall that?
Van Dam: yes.
Feldman: this is actually a fifteen-hour period of time, is it not?
Van Dam: I was asked as far as marijuana use was what I was referring to. I was not asked — well, I don’t know where in these interviews, but when I was asked, I answered no. when I was told it was important to tell the truth, I answered yes. it happened that fast.
Feldman: well, later on February the 3rd, at about 1:45 in the afternoon, you had a communication at the police station with a particular officer named Paul Redden, do you recall that?
Van Dam: no.
Feldman: do you recall mr. Redden specifically asking you whether or not you had used any drugs?
Van Dam: no. I don’t recall speaking to him at all.
Feldman: do you recall telling the police, any officer, in response to a direct question did you use any drugs, your answer no?
Van Dam: yes. as a matter of fact, that’s what I was referring to before. they asked me the direct question. I answered no. out of nervousness. they said I don’t care about your — i’m paraphrasing — I don’t care about your drug use; I care about finding your daughter. tell me the truth. and I said yes.
Feldman: you’re saying they. but i’m talking about an interview that occurred with just between yourself and a single officer whose name is Redden. and i’m specifically asking you if you recall being asked the question “were you drinking anything that night,” and your answering “I had two beers with dinner. I think I had one more playing video games.” do you recall that?
Van Dam: I don’t recall speaking to officer Redden.
Feldman: and so you do not recall Redden asking you the question did you have any drugs that night and your answering no at 3:00 o’clock or so in the afternoon of February the 3rd, 2002?
Van Dam: unless it’s the specific question that was followed by I don’t care about that and my answering yes moments later, no, I don’t recall it. that’s the only time I recall being asked about drugs is when I followed that answer with an answer of yes, I used them moments later.
Feldman: so then you don’t recall the officers telling you that it was important, early, before you talked to the officer Redden or whomever, you don’t recall the officers telling you that they needed to know the name of everybody that had been in the house?
Van Dam: no.
Feldman: but you understood that one of the reasons it was necessary for the officers to know who had been in the house was because of the obvious belief communicated to you that the police believed someone who may have been responsible for the disappearance of your daughter was familiar with the inside of your house?
mr. Dusek: this is hearsay from the officers, your honor, being misused.
The court: overruled. you may answer.
the witness: ask the question again, please.
mr. Feldman: may we?
The court: Bob. (the following was read by the reporter:
Feldman: but you understood that one of the reasons it was necessary for the officers to know who had been in the house was because of the obvious belief communicated to you that the police believed someone who may have been responsible for the disappearance of your daughter was familiar with the inside of your house?”)
The court: before the witness answers the question, ladies and gentlemen, I just want to remind you questions are not evidence. we have gone over this before. it’s only the answers that are meaningful.
you may answer, mr. Van Dam.
the witness: can I have it again? that was an awfully long question.
The court: certainly. (the last question was read by the reporter.)
the witness: yes.
Feldman: and in fact you never mentioned Barbara Easton and your acquaintance with Barbara Easton until the detective specifically told you that her job as one of the detectives was to find out who was in your house and who took your daughter, right?
Van Dam: as far as I recall Barbara Easton was on the list of people that were in the house, along with Denise, Rich, and — and i’ve lost his name now. my frustration. and Keith. as far as I remember, those names were given to the police way early on.
Feldman: but I think you told mr. Dusek on direct that your time sense has been affected by the events. is that right?
Van Dam: yes.
Feldman: sir, on direct examination you told mr. Dusek that on Friday night, February the 1st, your wife’s two friends showed up at the house. do you recall that?
Van Dam: yes.
Feldman: the two friends that you referred to as your wife’s friends would be Barbara Easton and Denise Kemel, is that right?
Van Dam: yes.
Feldman: they were your friends also, weren’t they?
Van Dam: yes.
Feldman: in fact, they were your intimate friends, isn’t that true?
Van Dam: yes.
Feldman: and there had been other occasions prior to the 1st of February that you had been intimate with Barbara Easton, isn’t that true?
mr. Dusek: objection. vague as to intimate. let’s find out.
mr. Feldman: all right.
The court: yes.
Feldman: all right, sir. you — i’m sorry. sir, it’s correct, isn’t it, that on at least three separate occasions you had had sexual intercourse with Barbara Easton prior to February 1st?
Van Dam: no.
Feldman: how many times?
Van Dam: once.
Feldman: where was that?
Van Dam: Barbara’s house.
Feldman: weren’t there other occasions where you attempted to have intercourse with Barbara Easton?
Van Dam: there were other occasions when I was with Barbara Easton, but we did not attempt to have intercourse.
Feldman: with regard to Denise Kemel, had you had intimate relations with Denise Kemel?
Van Dam: if by intimate relations again you mean sex, yes.
Feldman: I mean sex. So when you told mr. Dusek on direct examination that Denise and Barbara were your wife’s friends, you also meant to include the fact that they were your very close friends as well, isn’t that true?
Van Dam: yes.
Feldman: these individuals, these two women, had been acquainted with the upstairs of your residence, isn’t that true?
Van Dam: everyone in the house that night had been in the house, all over the house, on prior occasions. in the kids’ rooms, in the backyard. they are all friends.
Feldman: isn’t it the case that Barbara Easton was not a close relation of — let me say that a different way. Isn’t it true your wife communicated to you that she was uncomfortable with Barbara Easton’s talking to your daughter?
mr. Dusek: objection. hearsay. The court: at this point in time sustained. and also there’s no foundation.
mr. Feldman: all right. Did you have any communications with your wife concerning her comfort or lack of comfort regarding Barbara Easton in your house on the night of February 1?
mr. Dusek: objection. hearsay. irrelevant.
The court: it appears to call for hearsay answer. sustained.
by mr. Feldman:
Feldman: on February the 1st, was that — was it unusual for your wife to have girls’ nights out?
mr. Dusek: objection. irrelevant.
The court: overruled. You can answer that.
the witness: not unusual.

Feldman: and were you aware for instance, that in the week preceding, on the 25th, there had been a girls’ night out?
Van Dam: I believe the previous Friday night, if that was the previous Friday night, they went out.
Feldman: when you say they went out, i’m sorry, who?
Van Dam: the same three ladies.
Feldman: so does that mean on the 25th Barbara and Denise came to your house and then went out with your wife to Dad’s, as best you can recollect it?
Van Dam: I know they went out to Dad’s. i’m not clear on whether they came over. the details of who came over where.
Feldman: were they smoking marijuana on the 25th, do you remember?
Van Dam: I don’t even recall if they came over the house that night.
Feldman: do you recall your wife coming back on the 25th?
Van Dam: not specifically. I know she came home, but I don’t specifically recall.
Feldman: in the week before, i’ll say between the 25th and the 2nd, i’m sorry, 1st of February, do you recall any discussions between yourself and your wife where the name David Westerfield came up?
mr. Dusek: objection. hearsay.
The court: overruled. that can be just answered yes or no.
the witness: yes.
Feldman: and did your wife call you at work on a particular day to communicate — i’m not asking you for the detail — did your wife call you at work during the week to advise you of something concerning David Westerfield?
mr. Dusek: objection. it’s irrelevant unless we know the matter, and that’s going to be hearsay.
The court: overruled. you may answer.
the witness: did she call me?
mr. Feldman: yes.
the witness: yes.

Feldman: and did you and your wife engage in a discussion concerning David Westerfield during the week?
Van Dam: yes.
Feldman: what did you say to your wife during that communication?
mr. Dusek: objection. it’s hearsay. it’s irrelevant and without knowing the whole thing, which is hearsay.
The court: overruled. you’ve got the percipient witness sitting right here. You may answer what you said.
the witness: specifically I don’t recall. I mean I can relay the basis of the conversation.
Feldman: please.
Van Dam: is that —
mr. Dusek: that’s hearsay, your honor, for both sides.
The court: it includes the wrong side. let’s be specific, mr. Feldman. sustained.
Feldman: to the extent you can — well, didn’t you tell your wife that you were surprised that david westerfield had mentioned a party?
Van Dam: yes.
Feldman: and isn’t it true your wife never told you that she gave David Westerfield —
mr. Dusek: objection. hearsay — by mr. Feldman:
Feldman: — the telephone —
mr. Dusek: — as to what she said.
The court: as to what she said, sustained. and the form of the question indicates that, mr. Feldman. rephrase.
Feldman: did you ask your wife whether or not she had given her telephone number to David Westerfield in the week between the 25th of january and February the 1st?
Van Dam: I don’t specifically recall asking her that, no.
(discussion off the record between mr. Feldman and mr. Boyce.)
Feldman: sir, let me just direct your attention, and i’ll try and run it chronologic, okay, chronologically, to February the 1st. I think you told us that on direct examination you had a phone communication with your wife some time after you came home or as you were coming home from work. is that right?
Van Dam: you’re starting Friday now I think?
Feldman: i’m trying to go to the 1st, yes, friday.
Van Dam: before 6:00 o’clock?
Feldman: before you came home, before the pizza, before any of that. you’re just getting off of work. that’s where i’m trying to start you.
Van Dam: yes.
Feldman: so as you got off of work, you telephoned your wife to find out what the arrangements were for dinner.
Van Dam: we spoke. I don’t recall who telephoned who.
Feldman: all right. You understood, though, that before you got home she had left the house to go get pizza, is that right?
Van Dam: yes.
Feldman: and when you came home, you told us on direct examination your wife was not at home. correct?
Van Dam: correct.
Feldman: who was taking care of the children?
Van Dam: Derek was in charge for the few minutes that she was gone, between when she was gone and I was home.
Feldman: how much time would you estimate elapsed between the time you arrived home and the time Brenda got home?
Van Dam: not long. thirty seconds. a minute. maybe two minutes. probably not much longer than two minutes.
Feldman: all right. And then the family ate dinner, is that right?
Van Dam: yes.
Feldman: and you understood that Barbara and Denise were planning to come over so that Brenda could go out and have another girls’ night out. correct?
Van Dam: yes.
Feldman: what time did the women arrive as best you can recollect it, meaning Denise and Barbara?
Van Dam: before 8:00 o’clock.
Feldman: when they arrived, do you recall whether or not it appeared as though they had been drinking?
Van Dam: I don’t recall.
Feldman: do you recall telling the police that you thought that it appeared as though they were drinking?
Van Dam: I don’t — I don’t recall that. I may have.
Feldman: all right. How much time elapsed after they arrived and the time you can recollect them being in the garage?
Van Dam: five to fifteen minutes.
Feldman: in that five to fifteen minutes, do you remember whether or not Barbara Easton had any form of communication with your daughter Danielle?
Van Dam: yeah. I believe her and Denise were both sitting at the kitchen table talking to Danielle, talking to each other and Danielle.
Feldman: and I think you told us on direct that at that point you thought your wife was upstairs taking a shower.
Van Dam: I think it was a little earlier I heard her taking a shower. but she was upstairs.
Feldman: okay. She had not come downstairs yet, is that a fair statement?
Van Dam: yes.
Feldman: when your wife came downstairs, did she then suggest or escort the ladies into the garage?
Van Dam: I was playing the video games. I don’t know.
Feldman: okay.
so you were paying attention to the video games, you were not paying attention to what they were doing, is that a fair statement?
Van Dam: correct.
Feldman: and that was after you had consumed what you told us two beers, right?
Van Dam: yes.
Feldman: then it’s your recollection the women went into the garage, is that right?
Van Dam: yes.
Feldman: how long were they in the garage before you went into the garage, if you recall?
Van Dam: I don’t recall.
Feldman: at some point you made the decision to go into the garage, is that correct?
Van Dam: yes. I believe it was at a lull in the video game.
Feldman: you then went into the garage, is that right?
Van Dam: yes.
Feldman: what did you see?
Van Dam: they were out there. they were smoking a joint. I don’t know if they were drinking or not. i’m not sure.
Feldman: what about you; did you have a beer when you went out that time?
Van Dam: I don’t think so.
Feldman: do you recall testifying or telling any police that you probably did have a beer at that time?
Van Dam: I say I don’t think so because i’m pretty sure when I went out I didn’t have one. I don’t recall whether I got the third one I drank then or whether I went out later and got it when I started the pizza with Dylan again.
Feldman: when you started what?
Van Dam: when I started eating pizza with Dylan again.
Feldman: but you did smoke marijuana with the women, is that right?
Van Dam: I believe I did have one or two puffs.
Feldman: and did you feel the effects of the marijuana?
Van Dam: a little bit.
Feldman: and then did the ladies then leave?
Van Dam: a little while after that. I went back to the video game for a while.
Feldman: so you left the garage and they stayed in the garage is what you’re saying, is that a fair statement?
Van Dam: yes.
Feldman: all right. Then you went back and played video games and then you recall that your wife and the women back in the house, is that a fair statement?
Van Dam: yes.
Feldman: and then the women left, is that right?
Van Dam: yes.
Feldman: as best you can recollect it, what time?
Van Dam: around 8:00.
Feldman: Rich Brady, you had known him for a while, isn’t that correct?
Van Dam: yes.
Feldman: he was your supplier of marijuana, wasn’t he?
Van Dam: yes.
Feldman: he was there later that night, wasn’t he?
Van Dam: yes.
Feldman: you told us that you were eating cookies. do you recall that?
Van Dam: yes.
Feldman: was marijuana in those cookies?
Van Dam: no. they were packaged “chips ahoy” cookies.
Feldman: is that before or after the women had returned?
Van Dam: that was after.
Feldman: was that before or after you were in bed with Barbara Easton?
Van Dam: that was after.
Feldman: I think you told us on direct that approximately one fifty — between 1:54 and 1:57 it was your recollection you heard — I know you call it an excursion, but I think you said the truck arrived. do you recall that?
Van Dam: yes.
Feldman: so you recall that it was a couple of minutes before 2:00 o’clock in the morning that your wife returned. is that correct?
Van Dam: yes.
Feldman: right before then, shortly before then, though, something had happened with the dog, is that correct?
Van Dam: yes.
Feldman: was that right before your wife arrived, was that a time when you recall possibly waking up or hearing your dog whining?
Van Dam: yes.
Feldman: my question was kind of ambiguous. i’m sorry. Did the dog wake you, do you remember?
Van Dam: I believe so.
Feldman: do you remember hearing the security beeps or chirps as you called them?
Van Dam: no.
Feldman: do you remember whether or not there was a light flashing?
Van Dam: no.
Feldman: by your answer do you mean to communicate it was not flashing or you do not remember whether or not it was flashing?
Van Dam: I do not remember seeing any lights flashing.
Feldman: but you did later in the morning, is that right? 3:30, when you got back up, did you see a light flashing then?
Van Dam: yes, I did.
Feldman: but you at about five to 2:00, around the time your wife came home, you don’t remember there being any flashing lights, correct?
Van Dam: I don’t remember there being any flashing lights.
Feldman: was it unusual for the dog to behave in the manner that it behaved that caused it to wake you up?
Van Dam: a bit unusual. but when her bed is not in the room, she tends to be like that. it’s only been a very few times, three or four times, that her bed has not been in the room.
(discussion off the record between mr. Feldman and mr. Boyce.)
Feldman: when the women came home, were you sleeping?
Van Dam: no.
Feldman: did you tell the police that you were half dozing, half not dozing?
Van Dam: I was — I may have said that to the police. I was in a groggy state, but the t.v. was on, and I don’t sleep with the t.v. on, so I was groggy but awake.
Feldman: is it your view that if — i’m sorry. on February the 1st the dog was about a year old, wasn’t it?
Van Dam: I believe her birthday is in april. so. . .
Feldman: do you remember telling any law enforcement officers that you had a fairly big dog, if somebody didn’t know her, looked like she would make a lot of noise? do you remember that?
Van Dam: I don’t specifically remember telling them that, but I wouldn’t be surprised if I did.
Feldman: and how big was the dog?
Van Dam: my estimate is about sixty pounds. she was probably a little smaller then.
Feldman: i’m sorry. you just indicated — let me ask you again. when the dog was whimpering, didn’t you think that was odd?
Van Dam: not that odd.
Feldman: didn’t you tell officer Flores that at about 1:45 in the morning, when you woke up and the dog was whimpering, you thought that was odd?
Van Dam: I may have told Flores that, yes.
Feldman: and if you had told that to Flores, would it be true?
Van Dam: yes.
Feldman: when the women came in the house, what’s the next thing you recall? did you hear the door open?
Van Dam: yes.
Feldman: did you hear men’s voices downstairs?
Van Dam: yes.
Feldman: were you expecting there to be men there that night?
Van Dam: no.
Feldman: did you invite any men over that night?
Van Dam: no.
Feldman: did you discuss with Brenda whether or not it would be appropriate for her to bring you back any men that night or women?
Van Dam: can you ask that question again?
Feldman: yes. Before your wife went partying that night, did you discuss with her whether it would be appropriate for her to bring back, I don’t know, people to party with?
Van Dam: before my wife went out to the cafe to dance —
Feldman: yes.
Van Dam: — that night, we did not specifically discuss whether friends of ours that did not go with her would come back or not.
Feldman: did you discuss with her whether or not friends of yours would go to bed with you?
Van Dam: no.
Feldman: isn’t it true that when your wife came home and she entered with Barbara, both Brenda and Barbara went upstairs?
Van Dam: yes.
Feldman: and Barbara jumped into bed next to you, isn’t that true?
Van Dam: yes.
Feldman: and at that point Brenda left, didn’t she?
Van Dam: I don’t know whether it was that point or a few minutes later. I think she might have used the restroom upstairs, but yes.
Feldman: and it was dark in your room at that point, was it?
Van Dam: yes.
Feldman: so is it your testimony that Barbara came upstairs into your bed and your wife left the room?
Van Dam: yes.
Feldman: and how much time elapsed between the time your wife left the room while you were in bed with Barbara and the next time you recall seeing your wife that evening?
Van Dam: three to five minutes.
Feldman: and what were you and Barbara doing in that three-to-five-minute period of time?
Van Dam: kissed, snuggled a little.
Feldman: well, you say kiss and snuggled a little. Could you please tell the jury what do you mean by snuggle a little?
Van Dam: I rolled over and put my arm around her, rubbed her back some.
Feldman: and where was your wife?
Van Dam: downstairs.
Feldman: and Barbara was a woman with whom you had had intimate relations previous.
Van Dam: yes.
mr. Dusek: objection. asked and answered.
The court: overruled. the answer was yes. it’s done. Next question.

Feldman: where was Denise?
Van Dam: she was downstairs.
Feldman: you don’t recall that Denise also came upstairs and went into the bathroom with Brenda?
Van Dam: no, I don’t recall that.
Feldman: at some point in time Brenda had to come back upstairs and tell you she was getting embarrassed, isn’t that true?
Van Dam: I don’t know if it was embarrassed, but she wanted us to come downstairs, yes.
Feldman: and she — as a result of what she said, you then got out of bed, is that correct?
Van Dam: yes.
Feldman: and Barbara was there, correct?
Van Dam: yes.
Feldman: and when Brenda came in, you were still in the process of hugging and kissing her, is that correct?
Van Dam: not kissing. only I believe I kissed once or twice and then just laid there.
Feldman: and when you got out of bed, sir, how were you dressed?
Van Dam: underwear.
Feldman: what kind of underwear?
Van Dam: jockeys.
Feldman: and did you, when you got out of bed, was Barbara still there?
Van Dam: yes.
Feldman: and did you get dressed?
Van Dam: yes.
Feldman: from your underwear into clothing while Barbara was there?
Van Dam: put clothes over my underwear.
Feldman: and then you went downstairs, is that right?
Van Dam: yes.
Feldman: on one of the occasions that — well, strike that. Law enforcement asked you to provide them your best opinion as to who might have been responsible for the disappearance of your daughter, isn’t that right?
mr. Dusek: objection. speculation. third party.
The court: sustained. You need not answer.
Feldman: in 2001 you had a halloween party, is that right?
Van Dam: yes.
Feldman: your halloween parties you previously have described as risque, isn’t that true?
mr. Dusek: objection. irrelevant. 352.
The court: sustained.

Feldman: to clarify timing, sir, with regard to Denise Kemel, when did you have sexual relations with Denise Kemel?
Van Dam: october, 2000, I believe.
Feldman: and since then?
Van Dam: no.
Feldman: regard to Barbara Easton, I think you told us you only had sexual relations with her one time. was that your testimony, sir?
Van Dam: yes.
Feldman: but isn’t it true that on at least three separate occasions either you had sex or you attempted to have sex with Barbara Easton in the presence of your wife?
Van Dam: yes.
Feldman: when you had relations with Kemel, who else was present?
mr. Dusek: objection. irrelevant.
The court: overruled.
the witness: my wife and her husband.

Feldman: was that at your house?
Van Dam: yes.
Feldman: in your bedroom?
Van Dam: yes.
Feldman: okay. At 2:30 or thereabouts in the morning, after the people left, that is, Rich Brady and Keith and the women left, and you decided to go to sleep with your wife, were the lights turned off?
Van Dam: yes.
Feldman: and is it a matter of your custom and practice, sir, that when you go to sleep upstairs the overhead lights are turned off?
Van Dam: yes.
Feldman: and with regard to the lights in your children’s room, is it your custom and practice to turn the lights off in their rooms when they go to sleep?
Van Dam: except for the nightlights, yes.
Feldman: okay. And the nightlights are lights which are only designed to radiate a small amount of light, not to illuminate the entire area, is that correct?
Van Dam: the entire area being?
Feldman: the whole room like an overhead light.
Van Dam: well, after it’s dark in the room, they illuminate the whole room.
Feldman: do you know the wattage on the nightlights?
Van Dam: no.
Feldman: are they the kind of nightlights you just plug into the wall as opposed to, you know, lamps that you might turn on?
Van Dam: yes. small incandescents.
Feldman: i’m sorry?
Van Dam: small incandescents, like christmas tree lights, but clear.
Feldman: thank you.
Van Dam: plug in the wall.
Feldman: all right. thank you. With regard to your daughter Danielle, did she play hide and seek?
Van Dam: she had.
Feldman: were there occasions when you became upset with your daughter for being on the other side of the gate without permission?
Dusek: objection. vague as to when.
The court: try and be specific as to time, counsel. sustained.
Feldman: excuse me, your honor.
Feldman: within the previous we’ll say six months, six to eight months, were there occasions that you became upset with Danielle for going out and playing outside the gate?
Van Dam: no.
Feldman: your honor, I recognize the time, but I can expedite this process if you will give us a recess at this point.
The court: oh, that’s fine. i’m completely amenable.
Feldman: thank you.

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