4 – Brenda Van Dam cross-examination

Brenda Van Dam cross-examination – II based on transcript from June 6th 2002
Feldman: i’ll do the best I can to stay chronological, which means sequential, but — and I will let you know if I’m changing subjects on you. okay? so at least we can communicate.
Brenda Van Dam: okay.
Feldman: I want to direct your attention first to the 25th of January. on the 25th of January what plans did you have, ma’am

Brenda Van Dam: I had —
Feldman: this is the Friday preceding. it’s where mr. Dusek took you.
Brenda Van Dam: yes.
Feldman: the day before you go to Dad’s I don’t know for the first, second, third, or fourth time, but the first time in our case with Brenda and Denise. I said Brenda. I’m sorry. Barbara. tracking me? I’m just trying to get you focused on —
Brenda Van Dam: I know where you are at.
Feldman: what was your purpose going to Dad’s for that night?
Brenda Van Dam: we were going for girls’ night out because Denise was moving.
Feldman: you had other girls’ nights out, had you not?

mr. Dusek: objection. irrelevant. beyond the scope. 352.
The Court: : overruled. you can answer.
The witness: I had a couple.
Feldman: when you say a couple, what number comes to mind?
Brenda Van Dam: maybe two or three.
Feldman: with regard to the first of the three, when was that, ma’am?
Brenda Van Dam: gosh. the first one was when I went painting with Denise to Ceramic Cafe.
Feldman: I’m sorry. on that date was that the date that you met Barbara Easton for the first time?
Brenda Van Dam: yes.
Feldman: so ultimately the day that you went to the Ceramic Cafe, you actually ended up at Dad’s, did you not?
Brenda Van Dam: yes, we did.
Feldman: and at Dad’s Denise introduced you to Barbara Easton, is that correct?
Brenda Van Dam: no.
Feldman: do you recall having a conversation with a detective named Howard Labore?
Brenda Van Dam: yes.
Feldman: do you recall that that conversation was one of many you had had with law enforcement?
Brenda Van Dam: yes.
Feldman: do you recall that that was one of the later conversations which you had with law enforcement?
Brenda Van Dam: yes.
Feldman: do you recall telling detective Labore or any detective at any time that it was Denise who introduced you to Barbara?
Brenda Van Dam: she did.

Feldman: when was that?
Brenda Van Dam: we actually went to dinner first that night. I met Barbara when Denise came to my home.
Feldman: I’m sorry. when did — you met Barbara when Denise came to your home. when was that, ma’am, please?
Brenda Van Dam: the night that we went to Ceramic Cafe.
Feldman: so are you telling me that you — how is it that Barbara got to your house?
Brenda Van Dam: Denise brought her.
Feldman: okay. and did you have conversations with Denise and Barbara that evening?
Brenda Van Dam: yes.

Feldman: and that was the first time you met Denise and Barbara, correct? I’m sorry. Barbara.
Brenda Van Dam: no.
Feldman: you previously met Barbara?
Brenda Van Dam: you asked me if I had met Denise and Barbara. i knew Denise already.
Feldman: that was the first time, the night of the day, whatever, the evening of the Ceramic Cafe was the first time you had been together with Denise and Barbara?
Brenda Van Dam: yes.
Feldman: and that was at your house?
Brenda Van Dam: yes.
Feldman: and Denise brought Barbara to your house?
Brenda Van Dam: yes. to pick me up.
Feldman: and when she picked you up, you then went to the Ceramic Cafe or you went out to dinner?
Brenda Van Dam: we went to dinner first.
Feldman: and then you went —
Brenda Van Dam: to the Ceramic Cafe.
Feldman: was it another occasion that you had gone to Dad’s with Barbara and Denise?
Brenda Van Dam: that was the first night.
Feldman: I’m sorry. the first night meaning the night of the Ceramic Cafe?
Brenda Van Dam: yes.
Feldman: and approximately when was that, ma’am?
Brenda Van Dam: in August of 2001.
Feldman:so the first time you met Barbara was in August of 2001?
Brenda Van Dam: yes.

(discussion off the record between mr. Feldman and mr. boyce.)
Feldman: in October of 2001 did you have a party?
mr. Dusek: objection. irrelevant. 352.
The Court: : at this point in time sustained. you can lay the foundation in another way, mr. Feldman.

Feldman: directing your attention to halloween of 2001. do you have that date in mind, ma’am?
Brenda Van Dam: yes.
Feldman: you and your husband would have parties, isn’t that correct, on halloween?
mr. Dusek: objection, your honor. 352. it’s the wrong year.
The Court: get the right year.
mr. Feldman: there was a statement —
The Court: you can clarify it with this witness by giving you the year, then.
mr. Feldman: I’m just trying to understand

The Court: I understand.
mr. Feldman: okay.
Feldman: you told us on direct examination in response to one of mr. Dusek’s questions that you, quote, had never, end quote, had a sex party at your house. do you recall that answer?
Brenda Van Dam: yes.
Feldman: now I would like to direct your attention, ma’am, to Halloween of 2001.
Brenda Van Dam: okay.
Feldman: Halloween of 2001 you had a party at your house, did you not?
Brenda Van Dam: yes.
Feldman: present at that party was Barbara Easton, correct?
Brenda Van Dam: yes.
Feldman: Skip Brauberger, correct?
Brenda Van Dam: yes.
Feldman: Denise Kemel.
Brenda Van Dam: yes.
Feldman: and Denise’ husband Andy.
Brenda Van Dam: yes.
Feldman: the party was risque, was it not?
mr. Dusek: objection. vague as to meaning.
The Court: : overruled. you may answer.
The witness: no.
>
Feldman: was there alcohol at the party, ma’am?
Brenda Van Dam: yes.
Feldman: did you have anything to drink that night?
mr. Dusek: objection. irrelevant, your honor, if it’s to impeach this statement.
The Court: : let’s just get to the statement, counsel.
Feldman: isn’t it true that on Halloween evening in the year 2000 you engaged in sex with Denise and Andy and Brendon and — I’m sorry — and Damon?
Brenda Van Dam: yes.
Feldman: so when you told mr. Dusek that you had never had a sex party at your house, had you forgotten that?
Brenda Van Dam: I don’t consider that to be a sex party.
Feldman: had you previous to October, 2001, engaged in consentual sex with another person other than your husband?
mr. Dusek: objection. irrelevant. he’s changing the years.
The Court: : sustained. sustained. sustained.
Feldman: was October of 2001 the first time you had sex with Andy?
mr. Dusek: objection. irrelevant.
The Court: sustained.
Feldman: was October, 2001, the first time you had sex with Denise?
Brenda Van Dam: you need to repeat that question. you have the dates wrong.
Feldman: okay. I’m sorry.
what date was it that was the first time you had sex with Denise?
Brenda Van Dam: I have never — what is he —
Feldman: okay. have you had sex with Barbara Easton before?
Brenda Van Dam: no.
Feldman: isn’t it true you told detective Labore that you had in fact engaged in consentual sexual behavior with Denise?
Brenda Van Dam: yes.
Feldman: and you weren’t lying to detective Labore, were you?
Brenda Van Dam: no.
Feldman: when was it that you had consentual sexual relationships with Denise about which you spoke to detective Labore?
Brenda Van Dam: it was October of 2000.
Feldman: between October of 2000 and October of 2002, how many different times, if any, did you engage in consentual sex with Denise?
Brenda Van Dam: none.
Feldman: how many different times, if any, between October, 2000, and October, 2002, did you engage in consentual sex with Barbara?
Brenda Van Dam: none.
The Court: : this is June, 2002.
mr. Feldman: did i just misstate my dates?

The witness: he keeps doing it, and it’s confusing me.
The Court: : okay. let’s be very careful with dates. October of 2002 has not arrived.
mr. Feldman: wrong October. sorry.
The Court: all right.
Feldman: let me redirect your attention to October, 2001. okay? in that time period did you have a relationship with Barbara Easton?
mr. Dusek: objection. vague as to relationship.
The Court: sustained.
Feldman: did you have a sexual relationship with Barbara Easton?
Brenda Van Dam: no.
(discussion off the record between mr. Feldman and mr. boyce.)

Feldman: I’m going to direct you to the 25th of January. okay? at the Dad’s bar. you were dancing with the women, is that correct?
Brenda Van Dam: yes.
Feldman: how much had you had to drink on the 25th of January?
Brenda Van Dam: approximately three to four drinks.
Feldman: and those three to four drinks, they were i think you told us cranberry and vodkas. is that right, ma’am
a: yes.
Feldman: did you also have any beer?
Brenda Van Dam: no.
Feldman: how about mulled wine?
Brenda Van Dam: before we left for Dad’s we did.
Feldman: how about at Dad’s on the 25th?
Brenda Van Dam: no.

Feldman: were you the designated driver on the 25th?
Brenda Van Dam: yes.
Feldman: how much had the other women had to drink on the 25th, if you recall?
Brenda Van Dam: I don’t recall. I didn’t watch them drink.
Feldman: well, did you watch their behavior?
Brenda Van Dam: yes.
Feldman: as a result of your observations of their behavior, were you able to form an opinion as to whether or not they had been drinking?
Brenda Van Dam: yes. q: and what was your opinion
a: Denise drank a little too much.
Feldman: and what behaviors did she manifest that caused you to form the opinion that Denise drank too much?
Brenda Van Dam: she was dancing. she was just being a little on the wild side.
Feldman: when you say a little on the wild side, could you please tell us what you mean to communicate.
Brenda Van Dam: she was dancing with a man, and they were dancing.
Feldman: well, there was something about their dancing that caused you to form the opinion that the dancing was on the wild side. what did you mean to communicate by that, ma’am?

Brenda Van Dam: no. not their dancing. I didn’t say their dancing was on the wild side. I said Denise was a little bit on the wild side.
Feldman: what was it about Denise’ behavior that caused you —
Brenda Van Dam: she was kissing the guy that she was dancing with.
Feldman: had you ever met that guy before?
Brenda Van Dam: I don’t know him.
Feldman: did you participate in any of the dancing on the 25th with that guy?
Brenda Van Dam: I danced with lots of people. I don’t know if I danced with that guy in particular.
Feldman: when you say you danced with lots of people, do you mean to include other men as well as other women?
Brenda Van Dam: I don’t recall.
Feldman: so are you saying you don’t remember whether or not you were dancing with men on the 25th?
Brenda Van Dam: exactly.
Feldman: and is it then fair to infer you can’t say you were not, you just don’t remember whether or not you were?
Brenda Van Dam: exactly.
Feldman: similarly with regard to women, do you remember whether or not on the 25th you were dancing with the women?
Brenda Van Dam: yes, I did.
Feldman: and do you recall was that dancing provocative?
mr. Dusek: objection. vague.
The Court: sustained.
Feldman: was that dancing done in a manner to demonstrate, connote, or infer sexual behaviors?
mr. Dusek: objection. still vague.
The Court: : overruled. you can answer.
The witness: can you repeat the question, please?
mr. Feldman: please.
The Court: : bob. (the last question was read by the reporter.)
The witness: yes.
Feldman: and, in fact, you were kind of in a line dancing together, isn’t that true?
Brenda Van Dam: yes.
Feldman: and you were all hugging each other, isn’t that true?
Brenda Van Dam: yes.
Feldman: and when you were hugging each other, that means that you were embracing in an affectionate manner, does it not?
Brenda Van Dam: yes.
Feldman: and that was in a public forum, correct?
Brenda Van Dam: yes.
Feldman: that was at Dad’s on the 25th, correct?
Brenda Van Dam: yes.

Feldman: did you later speak with a bartender at Dad’s concerning his beliefs or observations of the manner in which you and the other women were dancing?
Brenda Van Dam: I don’t recall.
Feldman: by your answer you don’t recall do you mean to communicate it didn’t happen or you don’t remember whether or not it happened?
Brenda Van Dam: I don’t recall talking to the bartender.
Feldman: do you remember the bartender’s name?
Brenda Van Dam: no.
Feldman: do you recall when you were dancing together and hugging each other that other people would join in?
Brenda Van Dam: I wasn’t watching what other people were doing.
Feldman: well, do you recall one of the women you were with coming up behind you when you were dancing?
Brenda Van Dam: no.

Feldman: and do you recall her putting her hands around your waist while you were hugging others?
Brenda Van Dam: no.
mr. Feldman: your honor, I would ask to have marked as court next in order a transcript, a copy of which i provided counsel.
The Court: : all right. it will be marked 38 for identification.
mr. Feldman: your honor, for the record I will describe it as an interview by detective Howard Labore, I’m sorry, a transcript of the tape of the interview of detective Howard Labore with Brenda Van Dam on February the 7th. it has been bates stamped.
The Court: : all right. february 7th. it will be marked 38 for identification.
mr. Feldman: thank you.
(transcript of tape-recorded interview of Brenda Van Dam by detective Howard Labore on february 7, 2002, marked trial exhibit number 38 for identification.)
Feldman: ma’am, I’m going to give this to you so that you can have a copy of it with you. first of all, you recall you told me about speaking with detective Labore, right?
Brenda Van Dam: yes.
Feldman: you recall that that was tape-recorded, right?
Brenda Van Dam: yes.
Feldman: I would like to direct your attention to page 49 of that transcript. the first word at the top of the page should be d. h. l., Colon, during. are you looking — is that the same on your copy, top of the page? it says d. h. l., Colon.
Brenda Van Dam: yes.
Feldman: okay. could you just please read that to yourself.
Brenda Van Dam: (the witness complied.) okay.
Feldman: now, isn’t it true, ma’am, you told detective Labore that when you were dancing —
mr. Dusek: no foundation, your honor.
The Court: : overruled. conclude your question.
Feldman: isn’t it true, ma’am, that you told detective Labore that while you were dancing she came up behind you when you were dancing and put her hands around your waist?
Brenda Van Dam: around mine?
Feldman: yes.
Brenda Van Dam: it doesn’t say that.
Feldman: what does it say?
Brenda Van Dam: I was talking about Denise and Barbara dancing.
Feldman: oh. so it was Denise and Barbara who were dancing, not you, is that correct?
Brenda Van Dam: I was dancing, but in this statement I’m talking about Denise and Barbara dancing.
Feldman: so when you said, quote, oh, we were kind of all in a line dancing together, so we were kind of all hugging each other, —
Brenda Van Dam: where are you?
Feldman: at b. v. d.
mr. Dusek: objection. improper impeachment.
The witness: maybe I’m in the wrong place. can you just see if I’m in the right place?
The Court: just a minute.
mr. Dusek: it’s not inconsistent. no foundation.
The Court: overruled at this point in time. make the reference so the witness knows where you’re at, mr. Feldman.
mr. Feldman: yes, your honor. thank you.
Feldman: ma’am, I’m at page 49. I’m staying right there at the top where it says d. h. l., we started — you saw the word during. where it says b. v. d. and the word oh starts the sentence, o-h. do you see that?
mr. Dusek: that’s not on my page, your honor.
The witness: that’s not on my page.
The Court: : okay. all right. we will find out what the problem is.
mr. Feldman: i got a problem with the transcript. that’s what i got. excuse me.
(pause.)
The witness: it’s on 48. I’m sorry.
(pause.)

mr. Feldman: well, we have a little glitch with the transcripts. i’ll confess to that. but I can show you where I’m talking about.
The Court: : that’s fine.
mr. Feldman: excuse me.
Feldman: I would like to direct your attention, it’s your page 48. I’m sorry. mr. Feldman: and for counsel’s information it’s discovery page 248.

Feldman: and, again, the line is b. v. d. I’m just pointing it out for you, ma’am. when you said, oh, we were —
mr. Dusek: I’m sorry. which line, what number line?
mr. Feldman: page 48.
(mr. Feldman pointed on mr. Dusek’s copy.) mr. Feldman: i’ve shown it to counsel.
The Court: : all right.
Feldman: you indicated when you said to detective Labore, oh, we were kind of all in a line dancing together, so we were kind of all hugging each other. and then the three of us would get together. but there were more people joining in. what did you mean to communicate, ma’am?
Brenda Van Dam: we were all in a line dancing, like you do the line dancing with the shoulder thing or you hold the waist.
Feldman: and earlier or later on didn’t you indicate, quote, we hugged from the rear?
Brenda Van Dam: is that the next line you’re talking about?
Feldman: actually I would — just let me test your recollection, and then if i need to refresh your recollection on the transcript, I will be happy to do that. do you want to try it that way? I will ask you what your memory is, and then i’ll focus you on the transcript if that helps. okay?
Brenda Van Dam: okay.
Feldman: was Barbara that evening being touchy-feely or grabby?
Brenda Van Dam: yes.
Feldman: did Barbara grab your breasts?
Brenda Van Dam: no.
Feldman: did she try to grab your breasts?
Brenda Van Dam: yes.
Feldman: and did you indicate to Barbara that you didn’t appreciate that behavior publicly?
Brenda Van Dam: no.
Feldman: you have engaged in behavior similar to that with Barbara privately, though, isn’t that true?
Brenda Van Dam: yes.
Feldman: so she was taking something that you had done privately and making it publicly on the dance floor at Dad’s on the 25th of January, isn’t that true?
mr. Dusek: objection. irrelevant. 352.
The Court: : sustained. sustained. you need not answer, ma’am.
Feldman: was Dad’s pretty crowded on the 25th of January, ma’am?
Brenda Van Dam: yes.
Feldman: so was there a lot of people that had joined in this kind of i think you called it line dancing?
Brenda Van Dam: i couldn’t tell you how many there were.
Feldman: well, did it seem like much of the bar was —
Brenda Van Dam: no.
Feldman: — engaged?
Brenda Van Dam: no, not the whole bar.
Feldman: some of the bar?
Brenda Van Dam: maybe ten, fifteen people.
Feldman: and these were ten or fifteen people who you had not met before, is that correct
Brenda Van Dam: i knew Denise and Barbara.
Feldman: other than Denise and Barbara?
Brenda Van Dam: no. I did not know the rest of them.
Feldman: do you recall whether or not David Westerfield was a participant in that line dancing?
Brenda Van Dam: I do not recall.
Feldman: and by your answer do you mean to communicate you’re not sure whether it happened or it did not happen?
Brenda Van Dam: I don’t remember if it happened.
Feldman: but do you recall that mr. Westerfield was present that night, correct?
Brenda Van Dam: yes, he was.
Feldman: now, was it that night that he offered to buy you drinks?
Brenda Van Dam: yes.
Feldman: and did you accept drinks?
Brenda Van Dam: yes.
Feldman: and how many drinks did he buy you?
Brenda Van Dam: I do not know.
q: well, you told us you had i think three or four vodkas, is that right? you’re not —
Brenda Van Dam: i think maybe he bought one.
Feldman: and did he buy drinks for the other ladies?
Brenda Van Dam: yes.
Feldman: and mr. Westerfield was being appropriate, was he not?
mr. Dusek: objection. vague as to what appropriate is.
The Court: : sustained.
Feldman: he was being polite, was he not?
Brenda Van Dam: I didn’t have much contact with him, but the contact I did, yes.
Feldman: and he was being sociable in that contact that you had with him, correct?
Brenda Van Dam: yes.
Feldman: that evening isn’t it true that Denise was sexually dancing with a woman?
Brenda Van Dam: yes.
Feldman: and is it the case that Denise and Barbara were rubbing their bodies together?
mr. Dusek: objection. relevancy on this date.
The Court: sustained. sustained.
mr. Feldman: on relevance, your honor?
The Court: yes.
mr. Feldman: all right.
Feldman: later on the week you told us that mr. Westerfield had asked you why you did not introduce him to your friends that evening. do you recall that was your testimony?
Brenda Van Dam: yes.

Feldman: isn’t it true that on the 25th you told Barbara and Denise, you guys, you’re probably making everybody in this place excited, end quote?
mr. Dusek: objection. relevancy on that date.
The Court: overruled. you may answer yes or no.
The witness: yes.
Feldman: and isn’t it true detective Labore asked to clarify excited by asking you the word horny, and you answered yes?
Brenda Van Dam: yes.
Feldman: and you indicated to your friends that evening that you said the words more or less you probably realize that every man in this bar is probably paying attention to you. right?
Brenda Van Dam: yes.
Feldman: when you got home that evening, did you tell your husband Damon about the women’s behavior?
mr. Dusek: objection. relevancy. hearsay.
The Court: : overruled.
you can answer that yes or no.
The witness: to be honest with you, I don’t recall. I don’t know if i told Damon.
Feldman: and you told us the bar is, I don’t know, i think you told us 2.3 miles and four minutes, something like that, from your house. is that right, ma’am?
Brenda Van Dam: yes.
Feldman: and do you recall on the 25th how did you get home?
Brenda Van Dam: Denise. no. i drove that evening.
Feldman: are you not sure?
Brenda Van Dam: i drove that evening.
Feldman: my question is: are you not sure?
Brenda Van Dam: I’m positive.
Feldman: all right. when you mentioned Denise, what were you thinking of just then?
Brenda Van Dam: Denise drove the night we went to Ceramic Cafe.
Feldman: that was on the earlier occasion, is that correct, ma’am?
Brenda Van Dam: yes.

Feldman: on both the evenings of the 25th and the evening of the 1st of february, both Barbara and Denise were at your house, that’s correct, isn’t it?
Brenda Van Dam: yes.
Feldman: and with regard to each of those women, both you and your husband had engaged in sexual relations with them and their male partners, isn’t that true?
mr. Dusek: objection. beyond the scope, your honor.
The Court: : at this point it is, but she can be recalled. why don’t you approach the bench, both of you.
mr. Feldman: yes, your honor.
The Court: : bob.
(sidebar discussion, out of the hearing of the jury, as follows: proceedings not part of the public record. (end of sidebar discussion.)

mr. Feldman: could I please have the question read back?
The Court: okay. Bob.

(the following was read by the reporter:
q: and with regard to each of those women, both you and your husband had engaged in sexual relations with them and their male partners, isn’t that true?”)

The witness: yes.
Feldman: I would like to direct your attention now to the week following January the 25th. okay?
Brenda Van Dam: yes.
Feldman: in that week you told us there was some kind of girl scout cookie sale. is that right?
Brenda Van Dam: yes.
Feldman: and you were going door to door I guess within your neighborhood to your neighbors’ houses to purchase or, rather, to sell cookies, is that right?
Brenda Van Dam: yes.
Feldman: one day that week you went to mr. Westerfield’s house, isn’t that correct?
Brenda Van Dam: I only sold cookies one day. that’s correct.
Feldman: and you told us today that something happened that caused you to form the opinion that it was tuesday of that week. do you recall that on direct examination?
Brenda Van Dam: yes.
Feldman: previously you’ve testified, have you not, that you weren’t sure what day of the week it was that you actually went to mr. Westerfield’s residence?
Brenda Van Dam: yes.
Feldman: your prior testimony was given at a time when the events were fresher in your mind than they are today, is that correct?
Brenda Van Dam: yes.
Feldman: are you telling us, then, today that in your view your testimony has changed from the time of the preliminary hearing to today concerning the date you went to mr. Westerfield’s residence?
Brenda Van Dam: can you repeat the question?
Feldman: are you telling us today that your testimony has changed from today under oath and the date you testified under oath at preliminary hearing concerning the subject matter of the date you went to mr. Westerfield’s house in the week between 1/25 and 2/1?
Brenda Van Dam: yes. I remember the date.
Feldman: so — but the question is: are you telling me, then, your testimony on the subject or are you admitting that —
mr. Dusek: asked and answered.
Feldman: — that your testimony on the subject has changed?
The Court: : it’s been asked and answered. sustained.
Feldman: what, if anything, was presented to you that caused you to change your opinion as to the date?
Brenda Van Dam: me just going over the conversation that took place with mr. Westerfield the night or the evening of selling cookies.
Feldman: when you say me just going over, what do you mean to communicate? you’ve thought through it a number of times?
Brenda Van Dam: i tried to remember it more, yes.
Feldman: all right and what have you done to assist yourself in trying to remember it more?
Brenda Van Dam: just thought about what we talked about more.
Feldman: so do you feel that the more you think about a subject the more you are able to accurately recollect it?
Brenda Van Dam: yes.
Feldman: and is it your testimony today that it’s your best opinion that it was tuesday of that week that you were selling cookies to mr. Westerfield?
Brenda Van Dam: yes.
Feldman: part of the process of selling girl scout cookies involves filling out forms, is that right?
Brenda Van Dam: yes.
Feldman: I would like to direct your attention to what’s been previously marked . . .
The Court: : 34.
mr. Feldman: I’m seeing, but it’s two pages. just wasn’t sure if both pages, your honor, —
The Court: : yes.
Feldman: I would like to direct your attention, ma’am, to what’s been previously marked exhibit 34. is there any place on that form that indicates the date of any of the sales?
Brenda Van Dam: no.
Feldman: is there anything that indicates the date or the time you were going to deliver the cookies?
Brenda Van Dam: no.
Feldman: but there is something that indicates the name David Westerfield, isn’t that true?
Brenda Van Dam: yes.
Feldman: and what did mr. Westerfield purchase?
Brenda Van Dam: two boxes of samoas and two boxes of aloha chips.
Feldman: okay. was there something about — you told us on direct something about there was a charity, I guess the girl scout troop or however that’s described was making additional sales to send money overseas.
Brenda Van Dam: they were sending boxes of cookies overseas.
Feldman: that’s essentially, conceptually, anyway, a charity.
Brenda Van Dam: yes.
Feldman: is there anything that indicates mr. Westerfield may have purchased an additional box or anything for that charity?
Brenda Van Dam: yes.
Feldman: what is that?
Brenda Van Dam: he purchased one box.
Feldman: and is there anything on the form that in any way allows you to leave like a receipt so that the purchaser —
Brenda Van Dam: no.
Feldman: — gets the document or evidence of the purchase?
Brenda Van Dam: no.
Feldman: so if I understand correctly, you and your daughter and your son — I’m sorry, ma’am. which son was it?
Brenda Van Dam: Dylan.
Feldman: he’s your youngest, right?
Brenda Van Dam: yes.
Feldman: — went to mr. Westerfield’s residence on tuesday and knocked on the door, right?
Brenda Van Dam: yes.
Feldman: and mr. Westerfield invited you in, is that right?
Brenda Van Dam: yes.
Feldman: and you told us you didn’t know him, but you’d seen him at the — I guess at the bar the preceding Friday. is that right?
Brenda Van Dam: I didn’t know his name, but, yes, I did.

Feldman: so he invited you in, is that right?
Brenda Van Dam: actually I asked if i could see the remodel.
Feldman:you invited yourself in?
Brenda Van Dam: he asked us to come in, and I asked him if i could see the remodel.
Feldman:so you entered the residence?
Brenda Van Dam: yes.
Feldman: you were inside the residence about fifteen minutes, isn’t that true?
Brenda Van Dam: approximately.
Feldman: some of the conversation addressed the cabinetry in the kitchen, is that right?
Brenda Van Dam: yes.
Feldman: some of the conversation addressed the I guess you described knobs of some kind. is that correct?
Brenda Van Dam: yes.
Feldman: and how long would you estimate that took?
Brenda Van Dam: maybe three to four minutes.
Feldman: then there were discussions while your children — actually where your children mentioned they wanted to go outside, right?
Brenda Van Dam: yes.
Feldman: and they went outside, didn’t they?
Brenda Van Dam: yes.
Feldman: when they went outside, they went out a side door, didn’t they?
Brenda Van Dam: a back door.
mr. Feldman (to juror number 18): excuse me, ma’am. I’m afraid I’m going to hit you. so please let me know if it gets too close.
Feldman: behind you now i’ve got mr. Westerfield’s residence up. I guess my first question is: is this the cabinetry or the corian tops that attracted your attention?
Brenda Van Dam: yes.
Feldman: and are these the I guess the cabinet portions that attracted your attention?
Brenda Van Dam: yes.
The Court: mr. Feldman, record.
mr. Feldman: I’m sorry. thank you.
Feldman: when i referred to this and circled, I was pointing to exhibit d of — I’m sorry — d of exhibit 29. is that right? is that what you were answering me about, ma’am, just the photo and the identification number?
Brenda Van Dam: yes.
Feldman: and when I pointed to another area and another photograph, I don’t see the e on it, —
The Court: looks like the e has fallen off.
mr. Feldman: it does.
Feldman: but it’s the photo immediately to the right of d on 29, correct?
Brenda Van Dam: yes.
Feldman: now I would like to direct your attention to C or A. let’s try A. I’m pointing to what appears to be a door at A. do you see that, ma’am?
Brenda Van Dam: yes.
Feldman: is that the door your children went out?
Brenda Van Dam: is the kitchen right beside it?
Feldman: well, I’m asking you, ma’am.
Brenda Van Dam: yes.
Feldman: so the kids went out the door and apparently there’s a pool. I will see if I can scrounge up another photograph, and I’m using photograph a to articulate that. correct?
Brenda Van Dam: yes.
mr. Feldman: it’s not hide and seek, your honor; it’s just the lawyer’s inability to locate the exhibits.
mr. Dusek: it’s a little one.
mr. Feldman: thank you. the more help the merrier. ahh. thank you, counsel.
Feldman: I’m now trying to direct your attention to what’s been previously marked 28. and specifically direct your attention to photograph c and photograph d of 28.
Brenda Van Dam: okay.
Feldman: do these photographs appear to accurately depict the condition of mr. Westerfield’s backyard on or about the tuesday between the 25th and the 1st?
Brenda Van Dam: yes.
Feldman: and when you mentioned that your children were interested in the pool, we see in 28-c the pool. do we not?
Brenda Van Dam: yes.
Feldman: and is that the pool to which you were making reference?
(mr. boyce secured the exhibit.)

mr. Feldman: i needed the help.

Feldman: similarly we see in 28-d it appears to be another angle of the same pool, is that right?
Brenda Van Dam: yes.
Feldman: and this is the backyard area in which your kids played, is that right?
Brenda Van Dam: they didn’t play.
Feldman: they remained outside?
Brenda Van Dam: for a few minutes. they looked at the pool.
Feldman: okay. so the kids were out for a few minutes while they were looking at the pool and you were talking to mr. Westerfield you told us for a few minutes and you were in the house for fifteen minutes. what did you do in the other nine minutes or so?
Brenda Van Dam: I was talking with mr. Westerfield.
Feldman: when your children were out back, do you recall whether or not they closed the door?
Brenda Van Dam: I don’t recall.
Feldman: so they could have been in the backyard or accessing the garage or any area and you wouldn’t have known it, isn’t that true?
Brenda Van Dam: that’s not true.

Feldman: because?
Brenda Van Dam: because they wouldn’t wander off. they would come and ask me first.
Feldman: okay. so what you’re telling us is you don’t — they were not within your continuous eyesight, correct?
Brenda Van Dam: but i could hear them.
Feldman: you didn’t see them, you heard them, right?
Brenda Van Dam: i could hear them in the backyard, yes.
Feldman: and you knew they were in the backyard as opposed to the garage because how?
Brenda Van Dam: because i knew where they were at. i could hear the voice coming from that direction.
Feldman: when you say that direction, do you know whether or not there’s a door which may lead from the backyard area into the garage area of mr. Westerfield’s house?
Brenda Van Dam: I would assume there must be, but the garage is in the front of the house.
Feldman: at your house can you get into the house from the side yard?
Brenda Van Dam: yes.
Feldman: do you know whether or not you can get into mr. Westerfield’s house from the side yard?
Brenda Van Dam: I don’t know.
Feldman: at some point the kids wanted to go upstairs, isn’t that true?
Brenda Van Dam: yes.
Feldman: and you told us on direct examination mr. Westerfield said no problem. that’s what you told us on direct, correct?
Brenda Van Dam: yes.
Feldman: but you also told us on direct you said no, problem, meaning no, comma, there was a problem, right?
Brenda Van Dam: I did not want Dylan going upstairs.
Feldman: later in that same conversation the subject matter of “in cahoots” came up, isn’t that correct?
Brenda Van Dam: while we were out front it did.
Feldman: was that a different conversation?
Brenda Van Dam: we walked to the door, and he walked out front, and he started talking about “in cahoots” when the kids were playing.
Feldman: all right. did you understand at least from mr. Westerfield that “in cahoots” was really a cowboy bar?
Brenda Van Dam: he said don’t forget to wear your boots to “in cahoots.” I had no idea what it was.
Feldman: does Dad’s favor country music as opposed to we will say rock and roll?
Brenda Van Dam: no, not that I know of.
Feldman: when you said no, I didn’t like the way — my question wasn’t good. what kind of music do they play at Dad’s?
Brenda Van Dam: the nights I was there the bands played eighties music.
Feldman: and was keith stone a member of one of the bands?
Brenda Van Dam: no.
Feldman: does he have a relative that’s a member of one of the bands?
Brenda Van Dam: he had a friend.
Feldman: who was in the band that played on both the 25th and the 1st?
Brenda Van Dam: i only know of the 1st.

(discussion off the record between mr. Feldman and mr. boyce.)

Feldman: when you went outside on the day of the cookie purchase, were your children outside spreading rocks around the neighbor’s?
Brenda Van Dam: no. they were on the pile of rocks and the rocks were falling down a little bit off the pile, and I asked them to stop.
Feldman: was that at mr. Westerfield’s house or was that at someone else’s house?
Brenda Van Dam: it was the next-door neighbor’s driveway.
Feldman:okay. and was all that done within your sight?
Brenda Van Dam: yes.
Feldman: and when was it that mr. Westerfield asked you and you gave to him — I’m trying to find the exhibit — your handwritten phone number and your husband’s phone number? let me direct your attention, ma’am, to what’s been previously marked as 35. exhibit 35 I have just removed from this envelope has a pen, too. it says notes, prudential, but it says Damon and Brenda, and then there’s a phone number, is that right?
Brenda Van Dam: yes.
Feldman: is that mr. Westerfield’s handwriting?
Brenda Van Dam: no.
Feldman: whose handwriting is it?
Brenda Van Dam: mine.
Feldman: and you gave mr. Westerfield your home — this is your home number, right?
Brenda Van Dam: yes.
Feldman: and it wasn’t related to a business communication you had with him, was it?
Brenda Van Dam: no.
Feldman: so you gave mr. Westerfield your home number, is that right?
Brenda Van Dam: yes.
Feldman: because?
Brenda Van Dam: he asked for it. he gave me one of his business cards.
Feldman: and the two of you were talking about going to Dad’s the next Friday, isn’t that true?
Brenda Van Dam: I had mentioned that i might be there.
Feldman: and he mentioned that he might be there, isn’t that true?
Brenda Van Dam: he said that he wanted to meet my friend Barbara and that he was going to be at Dad’s. and i told him that i might be there if i could get a babysitter.
Feldman: okay. so you had a discussion with mr. Westerfield on what your recollection is the Tuesday of the week preceding the 1st. and you advised him at that point that you were going to get a babysitter potentially to allow you to go to Dad’s that Friday night, right?
Brenda Van Dam: I was going to attempt to.
Feldman: and that you were going to go to Dad’s with your two girl friends who had been there the previous night.
Brenda Van Dam: yes.
Feldman: previous Friday. the same two girls who had drawn the attention of many of the males in the bar according to you, isn’t that true?
Brenda Van Dam: yes.
Feldman: the same two girls who you did not tell the police had been upstairs in your house on the 1st of february, correct?
Brenda Van Dam: Denise was never — can you repeat the question? it’s very vague.
Feldman: what time was it on the 1st of february that the women arrived at your house, ma’am?
Brenda Van Dam: it was approximately 8:15.
Feldman: before the women had arrived at your house, you had gone shopping at Mervyn’s, isn’t that true?
Brenda Van Dam: yes.
Feldman: and at the same time as you went shopping at Mervyn’s, you had taken Danielle to go shopping at Mervyn’s, that’s true, isn’t it?
Brenda Van Dam: yes.
Feldman: and you had taken the boys to go shopping also, isn’t that true?
Brenda Van Dam: yes.
Feldman: where were the boys shopping?
Brenda Van Dam: Danielle and i were looking at clothes at Mervyn’s, and the boys wanted to run next door to toy depot.
Feldman: is this in a shopping center, ma’am?
Brenda Van Dam: yes.
Feldman: what shopping center?
Brenda Van Dam: it’s a — in Carmel Mountain.
Feldman: a large shopping center?
Brenda Van Dam: it’s a strip mall.
Feldman:all right.
so you went to Mervyn’s and Danielle was trying on clothes, and the boys were next door doing something else, is that correct?
Brenda Van Dam: yes. for a few minutes.
Feldman: and you were helping Danielle try on clothes, is that right?
Brenda Van Dam: yes.
Feldman: and then you left her alone, didn’t you?
Brenda Van Dam: yes.

Feldman: and you left her alone and then you went some place else, is that right?
Brenda Van Dam: i told her to stay in the dressing room until i got back, and that I was going to go pay for the boys’ purchase. Dylan was getting a birthday present. and i ran over and grabbed it and came back.

mr. Feldman: your honor, motion to strike as not responsive. I didn’t ask —
The Court: : overruled. the answer will stand.
Feldman: you left your daughter alone while you went and got your boys, isn’t that true?
Brenda Van Dam: yes. left her in the dressing room.
Feldman: and then when you came back, she was still in the dressing room, right?
Brenda Van Dam: yes.

Feldman: but by then you had your boys with you, correct?
Brenda Van Dam: yes.
Feldman: and then you took them home, is that right?
Brenda Van Dam: yes.
Feldman: I’m changing subjects. how frequently would your daughter get haircuts?
Brenda Van Dam: not very frequently.
Feldman: you told us about — i think you told us about two on direct examination. one was for the passport picture.
Brenda Van Dam: yes.
Feldman: and i think you mentioned September. when previous to September, ma’am?
Brenda Van Dam: probably June.
Feldman: do you have any pictures of her as she appeared in June?
Brenda Van Dam: she only got a very little trimmed off her hair so her hair was growing long. she was letting it grow out. there was never a real haircut.
Feldman: well, there was a trim, right?
Brenda Van Dam: tiny, quarter-of-an-inch trim each time.
Feldman: okay. so how long was her hair in June, if you know?

Brenda Van Dam: in June?
Feldman: yes.
Brenda Van Dam: probably — probably to the near the middle part of her back.
Feldman: same as in September?
Brenda Van Dam: it was a little bit longer in September.
Feldman: and the September photo, is that one of the photos that mr. Dusek showed you?
Brenda Van Dam: that’s a September photo.
(discussion off the record between mr. Feldman and mr. boyce.)

Feldman: I want to redirect, changing back. on the date of the cookie sale, as part of the conversation that occurred between you and mr. Westerfield, mr. Westerfield was discussing with you his interest in your friends, isn’t that right?
Brenda Van Dam: yes.
Feldman: and you indicated to mr. Westerfield that Denise was like twenty-six years old, isn’t that right?

Brenda Van Dam: yes.
Feldman: and mr. Westerfield said that’s too young for me, what about the tall one, isn’t that right?
Brenda Van Dam: yes.
Feldman: who was the tall one?
Brenda Van Dam: Barbara.
Feldman:how old’s Barbara?
Brenda Van Dam: I have no idea.

Feldman: is she older than twenty-six?
Brenda Van Dam: yes.
Feldman: is she older than thirty-six?
Brenda Van Dam: yes.
Feldman: and it was after that communication that mr. Westerfield asked you why didn’t you introduce me to her, and you said, well, I didn’t know your name, you said I didn’t know your first name, isn’t that correct?
Brenda Van Dam: yes.
Feldman: and it was at that point he said dave Westerfield and gave you the spectrum business card, is that right?
Brenda Van Dam: yes.
(discussion off the record between mr. Feldman and mr. Boyce.)

Feldman: in the course of that communication with mr. Westerfield, I’m still sitting on the same day of the cookie sale, the subject matter of mr. Westerfield having parties came up, didn’t it?
Brenda Van Dam: yes.
Feldman: and mr. Westerfield, you later told police, said that he had adult parties, isn’t that correct?
Brenda Van Dam: adult — yes.
Feldman: at preliminary hearing I asked you the same question, didn’t i?
Brenda Van Dam: I don’t recall.
Feldman: didn’t you tell us you reviewed the transcripts of preliminary hearing before coming to court, ma’am
Brenda Van Dam: yes, I did.
Feldman: and at preliminary hearing wasn’t that the first time it was suggested to you that the adult parties mr. —
mr. Dusek: objection, your honor.
may we approach the bench?
The Court: : certainly. Bob. (sidebar discussion, out of the hearing of the jury, as follows: proceedings not part of the public record. end of sidebar discussion.) (discussion off the record among the defense.)

Feldman: when mr. Westerfield mentioned that he had adult parties, in point of fact that meant something in particular to you, isn’t that right?
mr. Dusek: objection. calls for speculation.
The Court: : overruled. you can answer that yes or no only, ma’am.
The witness: will you repeat the question?
mr. Feldman: please.
The Court: : bob.
(the following was read by the reporter:
q: when mr. Westerfield mentioned that he had adult parties, in point of fact that meant something in particular to you, isn’t that right?”)

The witness: yes.
Feldman: didn’t necessarily mean the same thing to mr. Westerfield as it meant to you, did it?
mr. Dusek: objection. that calls for speculation.
The Court: : sustained. you need not answer.
Feldman: as a result of the statement, you called your husband, didn’t you?
Brenda Van Dam: yes.
Feldman: and what did you say to your husband?
mr. Dusek: relevancy, your honor.
The Court: : let’s be more specific to avoid any problems, mr. Feldman.
Feldman: did you tell your husband that mr. Westerfield had invited you to an adult party?
Brenda Van Dam: no.
Feldman: did you tell your husband that you were surprised that mr. Westerfield had a common interest with you and your husband?
Brenda Van Dam: no.
Feldman: didn’t you discuss with your husband the subject matter of mr. Westerfield’s remark concerning adult parties?
Brenda Van Dam: yes.
Feldman: and what was your husband’s spontaneous response?
mr. Dusek: objection. hearsay.
The Court: : sustained.
mr. Feldman: spontaneous —
The Court: : we have had him testify. the area has already been covered.
next question, mr. Feldman.
mr. Feldman: yes, your honor.
Feldman: how long did you talk to your husband in that telephone call after mr. Westerfield made the remark that he did?
Brenda Van Dam: just a couple minutes.
Feldman: I’m sorry. and it — was it before or after mr. Westerfield’s remark that you wrote out your home phone number?
Brenda Van Dam: it was during.
Feldman: isn’t it true that it was your opinion that mr. Westerfield would mention out of the blue a conversation about adult parties because your friends were really loose with the guys at the bar the week before?
Brenda Van Dam: can you repeat that?
Feldman: sure. isn’t it true that you were — isn’t it a correct — let me withdraw that.
is it the case that your belief as to the reason mr. Westerfield would out of the blue offer to you any mention of an adult party, the reason for that mention was because of the behavior of your friends at the bar the week preceding?
Brenda Van Dam: I’m not — I don’t understand the question.
Feldman: let me try it a different way. isn’t it correct you have described the behavior of Barbara and Denise on the 25th of January as really loose with the guys, end quote?

Brenda Van Dam: yes.
Feldman: and isn’t it true, then, that your belief as to why mr. Westerfield might have said something about having adult parties was because of your belief that your friends were really loose with the guys at the bar the week before?
mr. Dusek: speculation on her part as to what he meant.
The Court: : sustained. you need not answer, ma’am.
Feldman: back to the 1st. okay? after you picked your sons up and went back to Mervyn’s, where did you go?
Brenda Van Dam: we went home.
Feldman: approximately what time was it?
Brenda Van Dam: boy, you know, I don’t know.
Feldman: before sunset?
Brenda Van Dam: yes.
Feldman: getting to be dinnertime?
Brenda Van Dam: yes.
Feldman: so you decided to get pizza for the kids, right?
Brenda Van Dam: for the family.
Feldman: you weren’t planning to cook that night, right?
Brenda Van Dam: shopping took longer than I thought, so i decided not to cook.
Feldman: but you had already had plans for another girls’ night out with Denise and Barbara, isn’t that true?
Brenda Van Dam: yes.
Feldman: didn’t you tell mr. Dusek on direct examination that the reason you went out on the 25th was because Denise, that was the last day she was going to be in town, she was going to move out of town, that was on the 25th, right?

Brenda Van Dam: Denise was leaving on the 3rd. the reason I had to go on the 25th is because my husband was taking our oldest son snowboarding on the 1st. those plans changed during the week. and which gave me the opportunity to go.
Feldman: twice, correct?
Brenda Van Dam: yes.
Feldman: approximately what time did Damon come home from work on the 1st, if you recall?
Brenda Van Dam: I don’t know exact time.
Feldman: because you weren’t home, were you?
Brenda Van Dam: no.
Feldman: when you did get home and eat dinner, what’s the next thing you did after that?
Brenda Van Dam: we had pizza, and i think i got changed and then i started cleaning up the kitchen.
Feldman: did you go upstairs and take a shower?
Brenda Van Dam: I don’t remember if i showered or not.
Feldman: for the limited purpose of refreshing your recollection, i think your husband testified you did take a shower. does that refresh your memory as to whether you took a shower?
Brenda Van Dam: you know, it doesn’t.
Feldman: okay. about what time did the other girls show up, then?
Brenda Van Dam: about 8:15.
Feldman: when they showed up, could you tell whether or not they had been drinking?
Brenda Van Dam: no, i could not.
Feldman: do you recall telling an officer that it appeared to you as though they were fairly tuned or toasted in your word?
Brenda Van Dam: not at that point in the night, no, they weren’t.
Feldman: okay. so you think they were sober at least when they showed up at your house on the 1st?
Brenda Van Dam: yes.
Feldman: then did you offer them any alcohol or did they help themselves to some alcohol in your house?
Brenda Van Dam: they shared a beer.
Feldman: how do you know that they shared a single beer?
Brenda Van Dam: i saw them drinking it. they said we don’t want to drink a whole one; we will share one.
Feldman: so, in other words, the three of you by then had gone into the garage, is that right?
Brenda Van Dam: yes.
Feldman: and the reason you went into the garage was because you were planning to smoke a joint, isn’t that true?
Brenda Van Dam: yes.
Feldman: and you had the garage — I guess the lock was altered in a particular way to make sure that you were allowed privacy when you chose to engage in whatever you engaged in in the garage from your kids.
mr. Dusek: objection, your honor, to the phrase of the question, whatever you engaged in.
The Court: sustained. rephrase it. be specific.
Feldman: you locked the door to conceal your illegal activities from your children, isn’t that true?
mr. Dusek: objection. argumentative.
The Court: : overruled. you can answer.
The witness: yes.
Feldman: did you participate in drinking any alcohol in the garage before you went to Dad’s that evening?
Brenda Van Dam: no.
Feldman: you did smoke marijuana, though, didn’t you?
Brenda Van Dam: yes.
Feldman: approximately how much time were you in the garage smoking marijuana before Damon came in?
Brenda Van Dam: approximately three minutes.
Feldman: and when Damon came in, what, if anything, did Damon do?
Brenda Van Dam: he smoked.
Feldman: so the four of you basically went out in the garage and got high together, is that a fair statement?
Brenda Van Dam: yes.
Feldman: and then Damon left the garage, leaving you and the other two females in the garage, is that right?
Brenda Van Dam: yes.
Feldman: now, do you recall anything about anybody opening a garage door to let the smoke out?
Brenda Van Dam: yes.
Feldman: please tell me about that. explain that, please.
Brenda Van Dam: the garage door was opened a little bit to let the smoke out.
Feldman: in exhibit 14 can you see the garage door in any of the photos?
Brenda Van Dam: no.
Feldman:on which side of the house is the garage door?
Brenda Van Dam: if you’re looking at the house?
Feldman: as we look in either A or B, ma’am, yes, please.
Brenda Van Dam: the left side.
Feldman: okay. so if we look at photograph A on 14, you said the left side, am i pointing to the right area, ma’am?
Brenda Van Dam: yes.
Feldman: and I’m now directing your attention to what’s been previously marked 18, and more specifically G, is this the garage door that was open, ma’am?
Brenda Van Dam: yes.
Feldman: do you recall who opened it?
Brenda Van Dam: no.
Feldman: does this garage door, where does it lead to?
Brenda Van Dam: our side yard.
Feldman: and where does the side yard lead to?
Brenda Van Dam: there’s a gate that leads to the outside, and then the backyard.
Feldman: directing your attention to 24-a. is this I guess a view of the garage door from the side yard that you just described?
Brenda Van Dam: yes.
Feldman: and B appears to be a trash can. are we looking into the garage in B?
Brenda Van Dam: yes.
Feldman: there appears to be some red stuff that I’m circling in b-24, and we see apparently some more of the red stuff with an a by it in c of 24. is this Layla’s blood is that what you were talking about?
Brenda Van Dam: I have no idea what that is.
Feldman: so we don’t know what — this is not — earlier on direct you were asked a question about Layla bleeding. this is not the area in which you were making reference?
Brenda Van Dam: no.
Feldman: did Layla ever bleed on a beanbag chair?
Brenda Van Dam: not that I know of.
Feldman: did you ever bleed on a beanbag chair?
Brenda Van Dam: no.
Feldman: to your knowledge did — I’m sorry. specifically directing your attention to 23-J. did you ever bleed on this chair, ma’am?
Brenda Van Dam: no.
mr. Feldman: your honor, could we take a break, please?
The Court: : all right. ladies and gentlemen, we will go ahead and take the afternoon break a little bit early. please remember the admonition of
[–]

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