Posted in 07/2002 - Trial transcript July 2002

24071 – July 24th 2002 -Transcript of David Westerfield Trial Day 22 – morning 1

   December 22, 2016

TRIAL DAY 22 – PART 1 – morning 1

SAN DIEGO, CALIFORNIA, WEDNESDAY, JULY 24, 2002, 9:00 A.M. (morning 1)

WITNESSES:
James Gripp (forensic artist, recalled to testify about misc. exhibits)
Michael J. Raybould (worked at Singing Hills gold and country club, testified about weather)
Marion Pasas (private investigator, interviewed Heather Mack a witness who said she saw Westerfield coming to Coronado Cays)

–O0O–
(THE FOLLOWING OCCURRED OUT OF THE PRESENCE OF THE
JURY:
THE COURT: ALL RIGHT. IN THE WESTERFIELD MATTER THE RECORD WILL REFLECT THE APPEARANCE OF MR. WESTERFIELD AND COUNSEL, JURORS AND ALTERNATES BEING OUTSIDE, THE PUBLIC AND MEDIA BEING PRESENT.
ALL RIGHT. WHERE ARE WE AT, MR. FELDMAN?
MR. FELDMAN: GOOD MORNING, YOUR HONOR.
THE COURT: GOOD MORNING.
MR. FELDMAN: THIS MORNING THE DEFENSE IS RETURNING TO THE COURT EXHIBITS THAT WERE RELEASED TO US, INCLUDING ONE INADVERTENTLY GOT TO US, 158.
THE COURT: ALL RIGHT.
AND ARE THE —
MR. FELDMAN: I’M SORRY. WITH REGARD TO THE SCHEDULING, DO YOU WANT TO ADDRESS THE SCHEDULING ISSUES?
THE COURT: RIGHT.
MR. FELDMAN: SINCE YESTERDAY WE’VE BEEN ON THE PHONES AND DOING THE REQUISITE INVESTIGATION. I DON’T THINK WE’RE GOING TO BE POSITIONED CERTAINLY AT ALL TODAY. I’M HOPEFUL I WILL KNOW MORE AT NOON TODAY. I WAS SPEAKING TO INDIVIDUALS IN VARIOUS JURISDICTIONS YESTERDAY. I DON’T FEEL AS THOUGH I HAVE AN ANSWER I CAN GIVE TO THE COURT TODAY WITH REGARD TO RODRIGUEZ. WITH REGARD TO GOFF, MY REQUEST WOULD BE I KNOW WE’RE GOING TO NEED MORE THAN TWENTY-FOUR HOURS ON HIM. AND MY REQUEST WOULD BE TO TRAIL HIM INTO NEXT WEEK IF THAT’S NOT UNREASONABLE; BUT I THINK THERE’S PLENTY THAT’S IN FRONT OF US BEFORE WE EVEN REACH THAT ISSUE DEPENDING ON HOW COUNSEL WANTS TO RUN HIS CASE.
THE COURT: WHAT ABOUT YOUR CASE? ARE YOU PREPARED TO REST TODAY?
MR. FELDMAN: WE ARE.
THE COURT: AND IMMEDIATELY?
MR. FELDMAN: WELL, WE HAVE A COUPLE OF ITEMS. ONE OF WHICH IS — I WOULD ASK TO HAVE MARKED AS NEXT IN ORDER.
THE COURT: ALL RIGHT. LET’S USE UP THE ONE.
MR. FELDMAN: A RETAIL INSTALLMENT SALES CONTRACT. AND I’VE SHOWN IT TO COUNSEL, AND HE’S AMENABLE, MR. DUSEK, YOUR HONOR.
THE COURT: ALL RIGHT.
THE CLERK: 184.
THE COURT: ALL RIGHT. 184.
[RETAIL INSTALLMENT SALES CONTRACT AND MOTOR HOME SERVICE CONTRACT MARKED TRIAL EXHIBIT NUMBER 184 FOR IDENTIFICATION.]
MR. FELDMAN: AND THIS IS A RETAIL SALES CONTRACT. AND, I’M SORRY, A RETAIL INSTALLMENT SALES CONTRACT AND A MOTOR HOME SERVICE CONTRACT WHICH REFLECT 11/12/2000 AS THE APPROXIMATE PURCHASE DATE OF THE MOTOR HOME.
THE COURT: ALL RIGHT.
MR. FELDMAN: SO I DON’T KNOW WHETHER COUNSEL IS AMENABLE TO A STIPULATION. OUR COPY’S A LITTLE BIT XEROXED NOT GREAT. WE PROVIDED THAT TO COUNSEL YESTERDAY. WE WILL GET OTHER COPIES TO THE COURT.
THE COURT: MR. DUSEK, WHAT IS THE POSITION OF THE DISTRICT ATTORNEY AS IT RELATES TO THIS MARKED EXHIBIT?
MR. DUSEK: IT CAN BE MARKED. WE’RE NOT GOING TO CHALLENGE THE FOUNDATION OF IT.
THE COURT: ALL RIGHT.
MR. DUSEK: IT WOULD BE NICE IF WE HAD A LEGIBLE COPY.
MR. FELDMAN: MORE LEGIBLE.
THE COURT: ALL RIGHT. SO WE’LL BRING THAT TO THE JURY’S ATTENTION.
AND WHAT ELSE?
MR. BOYCE: WE’VE GOT THE FOUR BOARDS THAT HAVE BEEN MARKED OF STILLS OFF THE NEWS MEDIA. ONE OF WHICH NEWS BROADCAST, WHAT IS THE MARK MATTHEWS BROADCAST WHICH IS ALREADY IN EVIDENCE. AND THEN THERE IS — THERE WERE TWO OTHER BROADCASTS. AND WE WERE GOING TO CALL JIM GRIPP TO LAY THE FOUNDATION FOR THOSE STILLS OFF THE NEWS MEDIA BROADCAST.
THE COURT: ALL RIGHT.
AND THEN THOSE WILL BE IDENTIFIED.
MR. DUSEK: I THINK THERE’S SOME RELEVANCY PROBLEMS WITH THOSE NEWS MEDIA. WE DO NOT KNOW WHEN THE SITUATIONS WERE TAKEN, WHEN THE PHOTOGRAPHS WERE DEPICTED. BUT WE ALSO SEE NO RELEVANCY ON AT LEAST — THERE ARE SEVERAL OF THE PHOTOGRAPHS ARE STILLS OF THE MARK MATTHEWS INTERVIEW WHICH WE ALREADY HAVE HERE IN COURT. NO PROBLEM WITH THOSE. BUT THE OTHER ONES THERE’S NO RELEVANCY TO THOSE PICTURES. THEY ARE OFFICERS STANDING AROUND OUTSIDE THE WESTERFIELD HOME.
THE COURT: MR. BOYCE.
MR. BOYCE: THEY ARE FROM THE 4TH AND THE 5TH, AND THEY SHOW THE OFFICERS GOING IN AND OUT OF THE HOME. SOME OF THE OFFICERS AREN’T WEARING GLOVES. IT GOES TO CONTAMINATION OF THE CRIME SCENE.
THE COURT: ALL RIGHT.
WELL, YOU LAY YOUR FOUNDATION. I WILL ALLOW THOSE. SO THAT’S NOT GOING TO TAKE A WHOLE LOT OF TIME.
WHAT ELSE IS THERE?
MR. BOYCE: THAT’S IT.
THE COURT: THAT’S IT. AND THEN YOU ARE GOING TO REST?
MR. FELDMAN: WE WOULD RESERVE THE OPPORTUNITY TO MAKE THE MOTIONS THAT ROUTINELY ARE MADE.
THE COURT: ALL RIGHT.
AND ALSO SUBJECT TO RECEIPT OF EXHIBITS.
MR. FELDMAN: YES, YOUR HONOR.
THE COURT: ALL RIGHT.
NOW, THAT BRINGS US TO DOCTORS RODRIGUEZ AND GOFF. MR. CLARKE.
MR. CLARKE: YES, YOUR HONOR. I CAN INDICATE TO THE COURT THAT WITH REGARD TO DR. RODRIGUEZ, AS I BELIEVE MR. DUSEK OR MYSELF DESCRIBED YESTERDAY, HE IS HERE. HE HAS BEEN HERE SINCE MONDAY I BELIEVE IT WAS, IF I REMEMBER CORRECTLY. AND HE HAS VERY IMPORTANT DUTIES WITH THE UNITED STATES GOVERNMENT NEXT WEEK. HE MUST TESTIFY THIS WEEK.
AS FAR AS DR. GOFF, HE IS PRESENT HERE ALSO. HIS SCHEDULE I BELIEVE IS HE IS UNAVAILABLE MONDAY. I DO NOT KNOW BEYOND THAT. HE IS FROM HAWAII AND FLEW ALL NIGHT TO ARRIVE HERE. HE UNDERSTANDS THAT HE WILL HAVE TO WAIT AN EXTRA DAY UNTIL TOMORROW. SO IT IS VERY IMPORTANT IN OUR VIEW THAT BOTH OF THESE WITNESSES TESTIFY TOMORROW. OTHERWISE WE WILL PROBABLY NOT HAVE THEM AVAILABLE.
THE COURT: ALL RIGHT.
WHAT ABOUT THE STATUS OF REPORTS FROM THE TWO DOCTORS?
MR. CLARKE: THEY WERE COMPLETED AND PROVIDED TO THE DEFENSE EARLY YESTERDAY AFTERNOON, INCLUDING NOTES.
MR. FELDMAN: HOWEVER, WITH REGARD TO THOSE, THERE’S A SIGNIFICANT DATA SETS WITH REGARD TO WEATHER WHICH HAS BEEN IMPLICATED BY CROSS. AND THAT’S WHY I AM INDICATING TO THE COURT IT’S GOING TO TAKE US LONGER RATHER THAN SHORTER BECAUSE COUNSEL HAS PROVIDED, IN FACT, ONE OF HIS WITNESSES, AT LEAST ONE OF THE WITNESSES WE ANTICIPATE WILL BE SOMEBODY OUT OF THE SINGING HILLS WHO WILL TALK ABOUT HOW THEY TOOK THE WEATHER. REGARDLESS, WE NEED THAT DATA ANALYZED, YOUR HONOR.
AND AS THE COURT LEARNED, AT LEAST WITH REGARD TO DR. HASKELL, HE’S UNAVAILABLE. HE’S OUT IN TACOMA OR SEATTLE, IN THAT AREA, DOING A TRAINING SESSION WHICH HE TESTIFIED TO. AND OTHERS THAT I HAVE INVOLVED HAVEN’T BEEN IN A POSITION TO GIVE ME ANSWERS AS TO EVALUATING THE DATA.
I CAN’T INDICATE TO THE COURT AT THIS TIME ON LESS THAN TWENTY-FOUR HOURS’ NOTICE WE CAN PROCEED ON GOFF TOMORROW. BUT I THINK AT MINIMUM WE COULD DEAL WITH THE DIRECT AMONG OTHER OF THE WITNESSES SINCE TOMORROW IS THURSDAY, AND THAT WOULD AT LEAST ALLOW US TO PROCEED INTO IT AND GIVE THE DEFENSE THE OPPORTUNITY TO DO THE REQUISITE INVESTIGATION.
THE COURT: MR. CLARKE.
MR. CLARKE: WE ARE TALKING ABOUT VERY SIMILAR TIME TO WHAT WE WERE PROVIDED WITH REGARD TO DR. HASKELL I MIGHT ADD INITIALLY.
I HAVE A SERIOUS FEAR ABOUT THE AVAILABILITY OF BOTH OF THESE WITNESSES. WE PUT THEM OFF AN ADDITIONAL DAY AT THE COURT’S REQUEST, AND THEY HAVE BEEN ABLE TO COMPLY WITH THAT. BUT THURSDAY I THINK MAY VERY WELL BE THE DEADLINE FOR BOTH OF THESE WITNESSES.
THE COURT: WELL, THE PROBLEM THAT I SEE WITH — DR. RODRIGUEZ I DON’T HAVE A PROBLEM. AND I DON’T SEE THAT THERE’S ANY REASON HE CAN’T TESTIFY TOMORROW BASED ON EVERYTHING I HEARD.
AS FAR AS DR. GOFF IS CONCERNED, I’M ANTICIPATING THAT HE’S GOING TO BE A RATHER LENGTHY WITNESS IF EVERYTHING THAT’S BEEN REPRESENTED IS CORRECT. I DON’T SEE A PROBLEM WITH HIM BEING TAKEN ON DIRECT TOMORROW AFTERNOON. BUT THE FACT IS THAT THE CROSS-EXAMINATION IS PROBABLY GOING TO GO OVER TO MONDAY. SO YOU BETTER MAKE SURE WITH DR. GOFF THAT HE’LL BE AVAILABLE ON MONDAY. GIVEN THE CIRCUMSTANCES WE’VE GOT, I’M NOT SURE THAT THAT’S UNREASONABLE.
ALSO, EVEN ASSUMING THAT BOTH DOCTORS RODRIGUEZ AND GOFF TESTIFY TOMORROW, I DON’T THINK THERE’S ANY ASSURANCE THEY WOULD BE COMPLETED TOMORROW. SO RODRIGUEZ I THINK IS NOT A PROBLEM. WE’LL BE ABLE TO GET HIM ON HIS WAY BECAUSE HE’S GOING TO TALK ABOUT A VERY FINE ISSUE. GOFF I’M A LITTLE BIT MORE CONCERNED ABOUT. AND ESPECIALLY SINCE OBVIOUSLY I’M AWARE THAT MR. FELDMAN HAS HIS OWN EXPERTS AVAILABLE TO ANALYZE THE REPORT.
SO THE WAY I’M GOING TO LEAVE IT IS THIS: I’M GOING TO — DR. RODRIGUEZ WILL BE ON TOMORROW AND CONCLUDED. DR. GOFF WILL BE — YOU CAN DO YOUR DIRECT TOMORROW, AND I’M ANTICIPATING CROSS ON MONDAY. IF DR. GOFF IS IN AN UNTENABLE POSITION, I NEED TO KNOW THAT AS QUICKLY AS YOU FOLKS CAN LET ME KNOW IT, AND I WILL RECONSIDER THAT. BUT I THINK THAT WAY IT ACCOMMODATES THE CONCERNS OF THE DEFENSE AND AT THE SAME TIME ALLOWS DR. GOFF TO BE HANDLED AS EXPEDITIOUSLY AS WE CAN. SO WE’LL SEE WHERE WE’RE AT.
MR. CLARKE: FINE.
THE COURT: ALL RIGHT.
OKAY. LET’S GET THE JURY IN, AND THEN WE’LL COVER THE LAST OF THE DEFENSE’ CASE.
(END OF PROCEEDINGS OUT OF THE PRESENCE OF THE JURY.)

THE COURT: GOOD MORNING, LADIES AND GENTLEMEN. WELCOME BACK. TOO BAD THE PADRES COULDN’T CONTINUE LAST NIGHT, BUT HOPEFULLY THE NICE WEATHER TODAY WILL LEND ITSELF TO A VICTORY.
WE ALL KNOW THAT WE’RE NOT GOING TO BE GOING TO WHERE THE SURF MEETS THE TURF TODAY, SO FOR ALL OF YOU THAT HAD YOUR BONNETS READY FOR OPENING DAY, I’M SORRY; YOU’RE NOT GOING TO BE ABLE TO ATTEND.
LADIES AND GENTLEMEN, I FEEL IT’S MY DUTY AT THIS TIME TO LET YOU KNOW PRETTY MUCH WHERE WE’RE AT AND SOME OF THE THINGS THAT ARE LIKELY TO OCCUR, BECAUSE THEY DIRECTLY AFFECT THE AMOUNT OF TIME THAT YOU WILL BE IN THE COURTROOM OR MAY NOT BE IN THE COURTROOM.
IT IS ANTICIPATED THAT THIS MORNING THE DEFENSE WILL BE RAPIDLY IDENTIFYING SOME EXHIBITS AND THEN CONCLUDING ITS CASE IN CHIEF. AND THEN WE’RE GOING TO GO INTO THE REBUTTAL PHASE WHICH IS THE PEOPLE’S OPPORTUNITY TO PRESENT EVIDENCE REBUTTING WHAT THE DEFENSE HAS PRESENTED.
REBUTTAL PHASES OF TRIALS ARE VERY UNIQUE BECAUSE THEY COME ON VERY SUDDENLY. IN OTHER WORDS, WHEN A CASE ENDS, THE PRIMARY CASE, WHETHER IT’S THE PEOPLE OR THE DEFENSE, WHEN ALL THE EVIDENCE IS CONCLUDED AND WE HIT THE REBUTTAL PHASE, THE LAWYERS HAVE TO SCAMPER AROUND AND IN MANY CASES GET EXPERTS BACK THAT MAY HAVE TESTIFIED OR CONSULT WITH OTHER EXPERTS. WHENEVER YOU’RE DEALING WITH EXPERT TESTIMONY AND EXPERT WITNESSES, YOU HAVE TO DEAL WITH THEIR CALENDARS WHICH ARE ALREADY PRETTY MUCH IN PLACE.
TO MAKE A LONG STORY SHORT, I’M ANTICIPATING CERTAIN PROFESSIONAL TESTIMONY IN THIS PARTICULAR CASE, THE REBUTTAL PHASE. AND, AS A RESULT, THERE MAY BE SOME DISJOINTED DAYS WHEN WE’RE NOT GOING TO BE ABLE TO HAVE THOSE PEOPLE HERE. SO HOPEFULLY WE’LL BE ABLE TO GIVE YOU ENOUGH OF A HEADS UP THAT YOU CAN PLAN YOUR DAYS ACCORDINGLY. BUT DON’T BE SURPRISED IF ALONG THE WAY THERE AREN’T SOME GLITCHES IN THIS PARTICULAR PHASE OF THE TRIAL.
WHEN THE PEOPLE CONCLUDE THEIR REBUTTAL CASE, INCIDENTALLY, THE DEFENSE ALSO HAS WHAT IS KNOWN AS SURREBUTTAL, WHICH IS THEIR OPPORTUNITY TO REBUT WHAT THE PROSECUTION HAS PRESENTED. AND THAT MAY ALSO LEND ITSELF TO A LITTLE BIT OF HERKY-JERKINESS AS WE GO THROUGH THIS.
THERE’S ONE OTHER POINT I WANT TO COVER. THE LAWYERS AND I YESTERDAY AS A PART OF OUR DISCUSSION DISCUSSED THE FACT THAT I THINK ALL OF US, MEANING THE COURT AND BOTH SIDES, WOULD LIKE TO HAVE YOU WHEN WE ARE IN DELIBERATION TO DELIBERATE ON FRIDAYS. IN OTHER WORDS, WHEN THE CASE IS SUBMITTED TO YOU FOR PURPOSES OF MAKING A DECISION, AT THAT TIME HAVE YOU DELIBERATING ON FRIDAYS. I KNOW SOME OF YOU MAY HAVE MADE COMMITMENTS ON UPCOMING FRIDAYS. SO I’M JUST THROWING THIS OUT TO LET YOU KNOW THAT OUR PREFERENCE IS GOING TO BE THAT UNLESS YOU HAVE AN UNAVOIDABLE CONFLICT, WHETHER IT BE TRAVEL ARRANGEMENTS, MEDICAL APPOINTMENTS, OR ANYTHING LIKE THAT, THAT YOU CLEAR YOUR CALENDARS NOT THIS FRIDAY, BECAUSE THIS FRIDAY WE’RE STILL GOING TO BE ABLE TO ABIDE BY THE WAY WE’VE BEEN DOING THINGS, BUT PERHAPS STARTING THE FRIDAY OF NEXT WEEK. AGAIN, I’M GOING TO KEEP YOU POSTED, AND, AGAIN, BECAUSE WE HAVE PRETTY MUCH COMMITTED TO FRIDAYS OFF, I WILL ENTERTAIN ANY PROBLEMS YOU HAVE. AND COUNSEL AND I ARE WELL AWARE THAT YOU MAY HAVE, BASED ON THE HISTORY OF THIS CASE, MADE COMMITMENTS ON FRIDAYS, AND YOU SIMPLY HAVE TO LET ME KNOW THAT, AND WE’LL DEAL WITH THOSE.
OKAY. ALL RIGHT. MR. FELDMAN.
MR. FELDMAN: THANK YOU, YOUR HONOR.
THE DEFENSE HAS HAD MARKED AS NEXT IN ORDER AN EXHIBIT 184.
THE COURT: ALL RIGHT.
MR. FELDMAN: IT’S MY UNDERSTANDING THAT THERE WILL BE NO FOUNDATIONAL OPPOSITION. THIS IS A RETAIL INSTALLMENT SALE CONTRACT AND A MOTOR HOME SERVICE CONTRACT DATED 11/12/2000, WHICH INDICATES THE PURCHASE DATE OF THE MOTOR HOME IN THE CASE.
THE COURT: ALL RIGHT. THAT WILL BE SO MARKED.
MR. FELDMAN: THANK YOU, YOUR HONOR.
THE COURT: MR. BOYCE.
MR. BOYCE: YOUR HONOR, WE CALL JIM GRIPP.
THE COURT: ALL RIGHT.
/ / /
JAMES GRIPP,
RECALLED AS A WITNESS BY THE DEFENDANT, HAVING BEEN DULY SWORN, TESTIFIED AS FOLLOWS:
THE CLERK: SIR, WOULD YOU PLEASE STATE YOUR NAME AND SPELL IT FOR THE RECORD.
THE WITNESS: JAMES GRIPP. G-R-I-P-P.

DIRECT EXAMINATION
BY MR. BOYCE:
Q.: MR. GRIPP, YOU’VE PREVIOUSLY TOLD US THAT YOU ARE A FORENSIC ARTIST. IS THAT CORRECT?
A.: THAT’S CORRECT.
Q.: DID I ASK YOU TO DO SOME PHOTO STILLS FROM SOME VIDEO FOOTAGE OF NEWS MEDIA BROADCASTS?
A.: YES, YOU DID.
Q.: REFERRING FIRST OF ALL TO EXHIBIT WHAT’S BEEN MARKED AS 182, DO YOU RECOGNIZE THAT EXHIBIT?
A.: YES, I DO.
(PHOTOBOARD CONTAINING THREE PHOTOGRAPHS MARKED
TRIAL EXHIBIT NUMBER 182 FOR IDENTIFICATION.)
BY MR. BOYCE:
Q.: AND WHAT IS THAT EXHIBIT?
A.: THIS IS A DISPLAY BOARD ENTITLED "WESTERFIELD HOME NEWS MEDIA COVERAGE ONE." AND IT IS COMPRISED OF THREE STILL FRAMES FROM VIDEO CLIPS. AND EACH OF THE FRAMES ARE NUMBERED. 1-A, 1-B, 1-C. AND UNDERNEATH EACH ONE IS A SOURCE FROM THE PARTICULAR TAPE THAT THOSE STILLS WERE TAKEN FROM.
Q.: JUST BRIEFLY, HOW DO YOU DO THAT? HOW DO YOU GET THE STILLS FROM THE VIDEO ONTO THAT BOARD?
A.: THE PROCESS IS THAT WE FIRST RUN VIDEOTAPE ON A V.H.S. VIDEO CASSETTE RECORDER, V.C.R., THAT IS ATTACHED TO A COMPUTER. AND AT CERTAIN POINT WE INITIATE A RECORDING TO THE COMPUTER TO CAPTURE A PARTICULAR CLIP. AND THEN FROM THAT CLIP WE SELECT ONE OR MORE FRAMES AND THEN REPRODUCE THAT AS A STILL FRAME ON THE COMPUTER AND THEN BRING THAT PARTICULAR FRAME THAT’S BEEN DIGITIZED INTO A SOFTWARE PROGRAM THAT ALLOWS ME TO DROP IT INTO THIS PARTICULAR LAYOUT WHICH IS THEN PRINTED UP AND MOUNTED ON A BOARD.
Q.: AND THE CLIPS ON EXHIBIT 182, ARE THOSE STILLS FROM THE VARIOUS MEDIA BROADCASTS THAT ARE UNDERNEATH THE INDIVIDUAL STILLS?
A.: YES.
Q.: SHOWING YOU WHAT HAS BEEN MARKED AS EXHIBIT 185, DO YOU RECOGNIZE THIS?
A.: YES, I DO.
(VIDEOTAPE MARKED TRIAL EXHIBIT NUMBER 185 FOR
IDENTIFICATION.)
BY MR. BOYCE:
Q.: AND WHAT IS THAT?
A.: THIS IS A COPY OF THE TAPE THAT MY OFFICE PREPARED THAT CONTAINS THE ACTUAL VIDEO CLIPS FROM WHICH SOME OF THESE OR ALL OF THE INDIVIDUAL STILL FRAMES WERE TAKEN.
Q.: SHOWING YOU NEXT WHAT HAS BEEN MARKED AS EXHIBIT 181. DO YOU RECOGNIZE THIS BOARD?
A.: YES, I DO.
(PHOTOBOARD CONTAINING FOUR PHOTOGRAPHS MARKED
TRIAL EXHIBIT NUMBER 181 FOR IDENTIFICATION.)
BY MR. BOYCE:
Q.: AND WHAT IS THIS?
A.: THIS IS ALSO A DISPLAY BOARD SIMILAR TO THE PREVIOUS ONE THAT IS TITLED "WESTERFIELD HOME NEWS MEDIA COVERAGE TWO." ON THIS BOARD WE HAVE FOUR STILL FRAMES LABELED 2-A THROUGH 2-D, RESPECTIVELY. AGAIN WITH THE SAME TYPE OF DESCRIPTION UNDER EACH STILL FRAME AS TO ITS SOURCE.
Q.: AND SHOWING YOU NEXT EXHIBIT 180. DO YOU RECOGNIZE THIS BOARD?
A.: YES, I DO.
(PHOTOBOARD CONTAINING FOUR PHOTOGRAPHS MARKED
TRIAL EXHIBIT NUMBER 180 FOR IDENTIFICATION.)
BY MR. BOYCE:
Q.: AND WHAT IS THAT?
A.: THAT IS A THIRD DISPLAY BOARD SIMILAR TO THE PREVIOUS TWO ENTITLED "WESTERFIELD HOME NEWS MEDIA COVERAGE THREE." AND THIS BOARD CONTAINS FOUR STILLS FROM VIDEO LABELED 3-A THROUGH 3-D, RESPECTIVELY, WITH SIMILAR DESCRIPTIONS UNDERNEATH EACH ONE AS TO ITS SOURCE.
Q.: AND, FINALLY, SHOWING YOU WHAT’S BEEN MARKED AS EXHIBIT 179. DO YOU RECOGNIZE THIS BOARD?
A.: YES, I DO.
(PHOTOBOARD CONTAINING TWO PHOTOGRAPHS MARKED
TRIAL EXHIBIT NUMBER 179 FOR IDENTIFICATION.)
BY MR. BOYCE:
Q.: AND WHAT IS THIS BOARD?
A.: THIS IS ANOTHER DISPLAY BOARD TITLED WESTERFIELD HOME NEWS MEDIA COVERAGE FOUR." AND THIS BOARD HAS TWO STILL FRAMES LABELED 4-A AND 4-B, WITH CORRESPONDING DESCRIPTIONS AS TO THE SOURCE UNDER EACH PHOTO.
MR. BOYCE: THANK YOU.
I HAVE NO FURTHER QUESTIONS.
THE COURT: ALL RIGHT.
CROSS-EXAMINATION.

CROSS-EXAMINATION
BY MR. DUSEK:
Q.: DO YOU KNOW WHEN THESE EVENTS TOOK PLACE THAT ARE DEPICTED IN THESE PHOTOGRAPHS, SIR?
A.: ACTUALLY —
Q.: BY BEING PRESENT.
A.: NO.
Q.: SO YOU SIMPLY COPIED THE PHOTOGRAPHS FROM A VIDEOTAPE?
A.: THAT’S CORRECT.
Q.: YOU DID NOT PERSONALLY OBSERVE ANY OF THESE ACTIVITIES.
A.: NO, I DID NOT.
Q.: ON EXHIBIT 179, THE INDIVIDUAL ON THE RIGHT-HAND SIDE, DO YOU KNOW WHO THAT IS?
A.: NO, I DO NOT.
Q.: DO YOU KNOW IF THAT’S LIEUTENANT DUNCAN?
A.: NO, I DO NOT.
Q.: DO YOU KNOW WHETHER OR NOT HOMICIDE LIEUTENANTS DO ANY PHYSICAL WORK OF GATHERING EVIDENCE IN A HOMICIDE CASE?
A.: NO, I DO NOT.
Q.: SO YOU DO NOT KNOW WHETHER OR NOT HE PICKED UP THAT BOX JUST INSIDE OF WHATEVER BUILDING THAT IS?
A.: NO, I DO NOT.
Q.: DO YOU KNOW WHAT’S INSIDE THE BOX?
A.: NO, I DO NOT.
Q.: HOW SEALED ARE THE ITEMS INSIDE THE BOX?
A.: I CANNOT TELL THAT FROM THE PHOTO.
Q.: WHO SEIZED THE ITEMS THAT ARE INSIDE THE BOX?
A.: I HAVE NO ANSWER TO THAT.
Q.: WHO LABELED THEM?
A.: I DO NOT KNOW.
Q.: WHO MADE SURE THEY WERE NOT CONTAMINATED BEFORE THEY WERE PUT IN THE BOX?
MR. FELDMAN: YOUR HONOR, SCOPE. OBJECTION.
THE COURT: OVERRULED.
YOU CAN ANSWER.
THE WITNESS: I DO NOT KNOW.
BY MR. DUSEK:
Q.: IT LOOKS LIKE HE IS CARRYING ONE BOX TO A VAN.
A.: YES.
Q.: AND ARE WE CONCERNED ABOUT WHETHER OR NOT THERE ARE ANY FINGERPRINTS ON THAT BOX?
A.: I PERSONALLY AM NOT CONCERNED OF IT, NO.
Q.: DID YOU SEE IN ANY OF THE VIDEOTAPES WHERE HE WAS HANDLING ANY OF THE PHYSICAL EVIDENCE THAT WAS CONTAINED WITHIN THAT BOX?
A.: NO, I DID NOT.
Q.: PHOTOGRAPH 4-A ON THE SAME EXHIBIT, WHERE IS THAT PHOTOGRAPH FROM?
A.: IT APPEARS TO BE FROM THE SAME LOCATION AS PHOTOGRAPH 4-B.
Q.: WHICH IS WHAT?
A.: A GARAGE OF SOME SORT. I BELIEVE IT WAS — IT WAS TOLD TO ME IT MIGHT HAVE BEEN THE WESTERFIELD HOME, BUT I CANNOT TELL.
Q.: DO YOU KNOW WHO THIS INDIVIDUAL IS IN THE BLACK SHIRT?
A.: NO, I DO NOT.
Q.: DO YOU KNOW WHAT’S INSIDE THAT BOX?
A.: NO, I DO NOT.
Q.: DO YOU KNOW WHAT’S INSIDE THAT BOX HAS ANY RELEVANCE TO THIS CASE?
A.: NO, I DO NOT.
Q.: IT COULD BE CONTENTS FROM A REFRIGERATOR OR ANYTHING THAT WASN’T EVEN TESTED IN THIS CASE, CORRECT?
A.: I HAVE NO WAY OF KNOWING WHAT’S IN THE CONTENTS OF THE BOX.
Q.: WELL, THERE IS ONE WAY OF KNOWING, ISN’T THERE?
MR. FELDMAN: YOUR HONOR, SPECULATION. ARGUMENTATIVE.
THE COURT: AT THIS POINT SUSTAINED.
BY MR. DUSEK:
Q.: IF WE REALLY WANTED TO KNOW WHAT’S INSIDE THE BOX AND WHETHER OR NOT IT WAS ANY ITEMS THAT WERE INTRODUCED HERE IN COURT, WOULDN’T WE BE ABLE TO TALK TO THOSE TWO INDIVIDUALS?
MR. FELDMAN: SAME OBJECTION.
THE COURT: OVERRULED.
YOU CAN SAY YES OR NO.
THE WITNESS: YES.
BY MR. DUSEK:
Q.: THE WORK THAT YOU DID ON THESE PHOTOGRAPHS, CAN YOU AFFECT THE COLOR OF THE ITEMS THAT ARE DEPICTED IN THE PHOTOGRAPHS?
A.: WE CERTAINLY CAN IF WE CHOSE TO.
Q.: OKAY.
AND EVEN ACCIDENTALLY IT CAN HAPPEN, CAN’T IT?
A.: I DON’T THINK IT CAN HAPPEN ACCIDENTALLY IN TERMS OF MANIPULATING THE PHOTOGRAPHS. I THINK MANIPULATING THE COLOR OF THE PHOTOGRAPHS HAS TO BE DONE PURPOSELY.
Q.: LET ME SHOW YOU COURT’S EXHIBIT 182, SPECIFICALLY WHAT YOU HAVE LABELED AS 1-A AND 1-C. DO YOU SEE THE COLOR OF THE FEMALE’S SHIRTS?
A.: YES, I DO.
Q.: WHAT COLOR WOULD YOU CALL THE SHIRT IN 1-C?
A.: 1-C LOOKS LIKE TO BE A DARK RED.
Q.: WHAT COLOR WOULD YOU CALL THE SHIRT IN 1-A?
A.: A LIGHT RED OR ORANGE.
Q.: DOES THAT APPEAR TO BE THE SAME PERSON?
A.: YES, IT DOES.
Q.: SAME LOCATION?
A.: YES.
Q.: SAME TIME?
A.: YES.
Q.: TWO DIFFERENT COLORS, CORRECT?
A.: TWO DIFFERENT SHADES OF COLORS, YES. YEAH.
Q.: DO YOU KNOW WHEN THESE PHOTOGRAPHS WERE TAKEN?
A.: NO, I DON’T. OTHER THAN THE SOURCE. THE EARLIEST SOURCE IS FEBRUARY 5TH.
Q.: WELL, ACTUALLY WHAT YOU HAD WAS COPYING A TAPE THAT WAS PLAYED ON FEBRUARY 7TH, CORRECT?
A.: THAT’S CORRECT.
Q.: AND YOU WERE NOT PRESENT WHEN THESE INDIVIDUALS WERE AT THAT LOCATION.
A.: THAT’S CORRECT.
Q.: DO YOU KNOW WHO THE LADY IS IN THE SHERIFF’S SHIRT HERE ON THE LEFT-HAND SIDE?
A.: NO, I DO NOT.
Q.: DO YOU KNOW IF SHE EVEN WENT INSIDE THAT HOUSE?
A.: NO, I DO NOT.
Q.: WERE YOU EVER ASKED TO TRY TO GET THAT SHIRT?
A.: NO, I WAS NOT.
Q.: WERE YOU EVER ASKED TO GET THAT SHIRT SO WE COULD TEST IT TO SEE IF IT MATCHES ANY OF THE FIBERS WE HAVE IN THIS CASE?
A.: NO, I WAS NOT.
Q.: YOU WERE JUST ASKED TO GET A PICTURE WITH PEOPLE WITH ORANGE SHIRTS ON, RIGHT?
A.: ACTUALLY I WAS ASKED TO GET PICTURES FROM CLIPS THAT COUNSEL HAD SELECTED. I WAS NOT SPECIFICALLY ASKED TO GET PEOPLE WEARING ORANGE SHIRTS OR ANY OTHER COLOR SHIRT.
Q.: SO YOU WERE GIVEN THE PHOTOGRAPHS BY COUNSEL TO PUT UP HERE OR TOLD WHICH ONES TO PUT UP HERE ON A BOARD?
A.: YES. THEY — IN THE PROCESS WE DIGITIZED A SERIES OF VIDEO CLIPS. AND FROM THOSE SERIES OF VIDEO CLIPS, WE DIGITIZED SPECIFIC INDIVIDUAL FRAMES. THOSE FRAMES WERE GIVEN TO COUNSEL. COUNSEL THEN SELECTED WHICH FRAME THAT THEY WANTED TO HAVE MEMORIALIZED ON A DISPLAY BOARD.
Q.: AND MOST OF THE PHOTOGRAPHS APPEAR TO HAVE PEOPLE WITH ORANGE SHIRTS ON, DON’T THEY?
A.: ON THIS PARTICULAR BOARD, YES.
Q.: AND THEY APPEAR TO BE PEOPLE WHO MIGHT BE AFFILIATED WITH LAW ENFORCEMENT.
A.: IT APPEARS THAT WAY, YES.
Q.: THOSE INDIVIDUALS COULD BE ASKED LET’S GIVE US THE SHIRT SO WE CAN TEST IT AT THE LAB. TO SEE WHAT IT IS REALLY MADE OF.
MR. FELDMAN: ARGUMENTATIVE.
THE COURT: SUSTAINED.
BY MR. DUSEK:
Q.: YOU WERE NOT ASKED TO DO ANYTHING LIKE THAT, WERE YOU?
A.: NO, I WAS NOT.
Q.: JUST TO PRESENT PICTURES WITH PEOPLE WITH ORANGE OR REDDISH-COLORED SHIRTS.
A.: ON THIS PARTICULAR EXHIBIT IT APPEARS THAT WAY.
Q.: THE LADY ON 182, PHOTOGRAPH 1-C, IT APPEARS TO BE A SHORT-HAIRED LADY ON THE RIGHT-HAND SIDE OF THE PHOTOGRAPH IN THE SUIT. DO YOU KNOW WHO SHE IS?
A.: NO, I DO NOT.
Q.: DID YOU KNOW SERGEANT JUDY WOODS?
A.: NO.
Q.: DO YOU KNOW WHO THE LADY IS WITH THE WHITE JACKET IN THE MIDDLE OF THAT PHOTOGRAPH?
A.: NO, I DO NOT.
Q.: DO YOU KNOW IF SHE WENT IN THAT HOUSE?
A.: NO, I DO NOT.
Q.: THE LADY WITH HER BACK TO YOU IN 1-C, DO YOU KNOW IF SHE EVEN WENT INTO THAT HOUSE?
A.: NO, I DO NOT.
Q.: DO YOU KNOW IF ANY OF THEM LAID ON HIS BED?
A.: NO.
Q.: DO YOU KNOW IF ANY OF THESE INDIVIDUALS WERE IN HIS S.U.V.?
A.: NO, I DO NOT.
Q.: DO YOU KNOW IF ANY OF THEM WERE IN HIS MOTOR HOME?
A.: NO.
Q.: YOU WERE SIMPLY PUTTING UP PICTURES WITH PEOPLE IN ORANGE SHIRTS, CORRECT?
A.: ON THIS PARTICULAR EXHIBIT IT APPEARS TO BE SO, YES.
Q.: I THINK YOU’VE ALSO STATED THAT YOU WERE RESPONSIBLE FOR PREPARING THE PHOTOGRAPHS THAT ARE ON EXHIBIT 180. IS THAT CORRECT?
A.: THAT’S CORRECT.
Q.: WE SEE THOSE SAME ORANGE SHIRTS HERE ON EACH OF THESE FOUR PHOTOGRAPHS.
A.: I DON’T KNOW IF IT’S THE SAME ORANGE SHIRTS. I SEE ONE OF THE LADIES WHO WAS IN THE FIRST BOARD IN 3-A AND 3-C THAT MIGHT BE HERE IN 3-D. I DON’T SEE HER IN 3-B.
Q.: BUT THERE APPEAR TO BE — WHO SELECTED THESE PHOTOGRAPHS FOR YOU TO PUT UP ON THE BOARD?
A.: COUNSEL.
Q.: AND EACH OF THEM SHOW PEOPLE WEARING SOME SORT OF ORANGE-COLORED-TYPE SHIRT.
A.: THAT’S CORRECT.
Q.: DO YOU KNOW IF THIS IS A COTTON SHIRT THAT THE LADY IN THE SHORT HAIR IS WEARING IN 3-C?
A.: NO, I DO NOT.
Q.: IF WE WERE TO GET THAT SHIRT, WOULD WE BE ABLE TO LOOK AT THE LABEL?
MR. FELDMAN: SAME OBJECTION, YOUR HONOR.
THE COURT: SUSTAINED.
BY MR. DUSEK:
Q.: THE INDIVIDUALS THAT WE SEE HERE AT LEAST IN PHOTOGRAPH 4, I’M SORRY, 3-A, YOU CAN’T SEE THEIR HANDS, CAN YOU?
A.: NO, I CANNOT.
Q.: THEY’RE JUST STANDING OUTSIDE THE HOUSE.
A.: IT APPEARS SO, YES.
Q.: DO YOU KNOW IF THEY EVEN WENT IN THE HOUSE?
A.: NO, I DO NOT.
Q.: THE LADY IN 3-C, DO YOU KNOW IF SHE EVEN WENT IN THE HOUSE?
A.: NO, I DO NOT.
Q.: THE INDIVIDUAL OVER IN 3-B, WHAT COLOR IS THAT SHIRT?
A.: IT APPEARS TO BE REDDISH.
Q.: DO YOU KNOW IF HE WENT IN THE HOUSE?
A.: NO, I DO NOT.
Q.: DO YOU KNOW IF HIS SHIRT WAS REQUESTED BY THE DEFENSE TO BE TESTED?
MR. FELDMAN: SAME OBJECTION.
THE COURT: SUSTAINED.
BY MR. DUSEK:
Q.: THE INDIVIDUALS IN 3-D APPEAR TO HAVE A CAMOUFLAGE PANTS ON AND WHAT COLOR SHIRT?
A.: IT APPEARS TO BE ORANGE.
Q.: DO YOU KNOW IF THEY GOT IN THE HOUSE?
A.: NO, I DO NOT.
Q.: DO YOU KNOW IF THEY GOT IN THE MOTOR HOME?
A.: NO, I DO NOT.
Q.: DO YOU KNOW WHEN THE PHOTOGRAPH ON 3-D WAS TAKEN, WHAT DAY, FROM ANY PERSONAL OBSERVATIONS?
A.: NO.
Q.: I THINK THE FINAL ONE THAT YOU’VE PLACED UP HERE OR AT LEAST YOU PREPARED AND WHAT YOU HAVE BEEN TALKING ABOUT IS COURT’S EXHIBIT 181. IT HAS FOUR PHOTOGRAPHS ON IT AGAIN. PHOTOGRAPH 2-D APPEARS TO HAVE AN INDIVIDUAL IN A HAWAIIAN SHIRT. DO YOU KNOW WHO THAT IS?
A.: NO, I DO NOT. LOOKS LIKE MAYBE, PERHAPS, DETECTIVE HOLMES WHO IS SITTING IN THE COURTROOM.
Q.: DO YOU KNOW WHEN HE WENT TO THE SCENE?
A.: NO, I DO NOT. OTHER THAN WHAT THE SOURCE OF THE TAPE IS, I HAVE NO PERSONAL KNOWLEDGE.
Q.: SO YOU HAVE NO IDEA WHETHER OR NOT HE SEIZED ANY EVIDENCE.
A.: NO, I DO NOT.
Q.: THE OTHER INDIVIDUALS — WELL, WHO SELECTED THE PICTURES FOR THIS BOARD?
A.: COUNSEL DID.
Q.: AND THEY ALL AGAIN TEND TO HAVE THE ORANGE-COLORED SHIRTS.
A.: THEY APPEAR TO, YES.
Q.: AND THEY ALL APPEAR TO BE INDIVIDUALS WHO ARE OUTSIDE THE HOME.
A.: YES.
Q.: NO WAY OF KNOWING WHETHER OR NOT THEY WENT IN THE HOME.
A.: NOT OF MY KNOWLEDGE, NO.
Q.: AND NO WAY OF KNOWING WHAT THE FABRIC IS ON ANY OF THOSE SHIRTS.
A.: NO.
Q.: YOU ARE AWARE THAT SIMPLY BY LOOKING AT THE LABEL OF A SHIRT WE COULD SEE WHAT FABRIC, WHAT THE MATERIAL IS, DON’T YOU?
MR. FELDMAN: ASSUMES FACTS NOT IN EVIDENCE.
THE COURT: OVERRULED.
YOU CAN ANSWER THAT.
THE WITNESS: YES.
BY MR. DUSEK:
Q.: WERE YOU ASKED TO DO THAT TO SEE IF PERHAPS THESE FIBERS WERE THE SAME TYPE OF FIBERS WE ARE CONCERNED WITH HERE?
A.: NO.
MR. FELDMAN: ARGUMENTATIVE.
THE COURT: THE ANSWER IS NO. IT WILL STAND.
OVERRULED.
MR. DUSEK: THANK YOU, SIR.
NOTHING FURTHER.
THE COURT: ALL RIGHT.
ANY REDIRECT?

REDIRECT EXAMINATION BY MR. BOYCE:
Q.: MR. GRIPP, DID I ASK YOU TO OBTAIN THE BEST QUALITY FOR THESE PHOTOGRAPHS TO BE MADE?
A.: YES.
Q.: AND DID YOU DO THAT?
A.: YES. AS BEST AS I COULD.
Q.: THE BEST QUALITY VIDEO FROM WHICH TO GET THE STILLS, IS THAT RIGHT?
A.: THAT’S CORRECT.
Q.: DID YOU MANIPULATE THE COLOR IN ANY WAY ON THESE PHOTOGRAPHS?
A.: NO.
Q.: WERE YOU CAREFUL TO ACCURATELY DEPICT WHAT WAS ON THE VIDEO IN THESE PHOTOGRAPHS?
A.: YES.
Q.: AND THAT’S THE VIDEO THAT’S BEEN MARKED AND IS IN FRONT OF YOU, IS THAT RIGHT?
A.: YES.
Q.: AND, AGAIN, WHAT IS THE EXHIBIT NUMBER ON THAT VIDEO?
A.: 185.
Q.: AND AFTER YOU OBTAINED THE VIDEOS, YOU PROVIDED THOSE VIDEOS TO COUNSEL, DIDN’T YOU?
A.: THAT’S CORRECT.
Q.: AND AFTER COUNSEL SELECTED CERTAIN STILLS OFF THOSE VIDEOS, YOU PROVIDED C.D.’S WITH DOZENS OF STILLS TO COUNSEL, DIDN’T YOU?
A.: THAT’S CORRECT.
Q.: AND FROM THOSE C.D.’S WITH THE STILLS ON THEM, THAT’S WHERE THESE PHOTOS COME FROM, IS THAT CORRECT?
A.: THAT’S CORRECT.
Q.: AND DID COUNSEL INDICATE THAT WHAT WE WERE LOOKING FOR WAS CONTAMINATION OF THE SCENE?
A.: YES.
Q.: MR. DUSEK ASKED YOU IF YOU KNEW IF ANY OF THESE PEOPLE WERE IN THE HOUSE. DO YOU KNOW WHETHER THIS WOMAN HERE, DETECTIVE PARGA, HANDLED ANY LAUNDRY IN THE HOUSE?
MR. DUSEK: OBJECTION. SPECULATION.
THE WITNESS: NO, I DO NOT KNOW.
MR. DUSEK HEARSAY.
THE COURT: SUSTAINED.
MR. BOYCE: I DON’T HAVE ANYTHING FURTHER.
THE COURT: ANYTHING FURTHER?

RECROSS-EXAMINATION
BY MR. DUSEK:
Q.: AFTER ALL THE PHOTOGRAPHS WERE PREPARED BY YOU, STILL THE ATTORNEYS PICKED THE ONES THAT WERE TO GO ON THE BOARD.
A.: THAT’S CORRECT.
Q.: DID THEY EVER SHOW YOU ANY OF THESE SHIRTS THAT THESE SHERIFF’S INDIVIDUALS SEEM TO BE WEARING TO SEE IF WE CAN COMPARE THE TRUE COLOR OF THE SHIRT WITH THE COLOR ON THE PHOTOGRAPHS?
A.: NO.
Q.: SO YOU HAVE NEVER SEEN THE REAL SHIRT.
A.: THAT’S CORRECT.
MR. DUSEK: THANK YOU, SIR.
THE COURT: ANYTHING FURTHER?

FURTHER REDIRECT EXAMINATION
BY MR. BOYCE:
Q.: DID COUNSEL ALSO INDICATE THAT WHAT WE WERE LOOKING FOR WERE —
MR. DUSEK: OBJECTION. HEARSAY. UNLESS HE WANTS TO TESTIFY.
THE COURT: AT THIS POINT IN TIME AS TO WHAT COUNSEL WAS INDICATING SUSTAINED.
BY MR. BOYCE:
Q.: CAN YOU TELL WHETHER OR NOT THE PEOPLE IN EXHIBIT 181 ARE WEARING GLOVES OR NOT?
A.: THEY DO NOT APPEAR TO BE WEARING GLOVES. I THINK THAT IT’S A LITTLE DIFFICULT FROM THESE PARTICULAR PHOTOS TO TELL IF THEY WERE.
Q.: IS THAT ONE OF THE THINGS WE INDICATED THAT WE WERE INTERESTED IN?
MR. DUSEK: OBJECTION. HEARSAY. UNLESS HE WANTS TO TESTIFY.
THE COURT: SUSTAINED.
MR. BOYCE: I HAVE NOTHING FURTHER, YOUR HONOR.
THE COURT: ANYTHING FURTHER?
MR. DUSEK: NO.
THE COURT: ALL RIGHT.
SIR, THANK YOU VERY MUCH FOR COMING IN. YOU ARE FREE TO LEAVE THESE PROCEEDINGS.
WOULD YOU JUST HAND THAT VIDEOTAPE TO MY BAILIFF ON YOUR WAY OUT SO WE DON’T LOSE IT.
PLEASE REMEMBER YOU’RE STILL UNDER THE ADMONITION NOT TO DISCUSS YOUR TESTIMONY.
THE WITNESS: THANK YOU.
THE COURT: THANK YOU.
(THE WITNESS WAS EXCUSED.)
THE COURT: ALL RIGHT. MR. FELDMAN.
MR. FELDMAN: YOUR HONOR, SUBJECT TO OUR PREVIOUSLY ARTICULATED RESERVATIONS, WE REST.
THE COURT: ALL RIGHT.
THE DEFENSE RESTS.
ALL RIGHT. PEOPLE PREPARED TO GO FORWARD WITH THEIR REBUTTAL?
MR. DUSEK: YES.
THE COURT: ALL RIGHT. PLEASE CALL YOUR FIRST WITNESS.
MR. DUSEK: MIKE RAYBOULD.
THE COURT: ALL RIGHT.

MICHAEL J. RAYBOULD,
CALLED AS A WITNESS BY THE PLAINTIFF, HAVING BEEN DULY SWORN, TESTIFIED AS FOLLOWS:
THE CLERK: SIR, WOULD YOU PLEASE STATE YOUR NAME AND SPELL IT FOR THE RECORD.
THE WITNESS: MICHAEL J. RAYBOULD.
THE CLERK: SPELL YOUR LAST NAME.
THE WITNESS: R-A-Y-B-O-U-L-D.

DIRECT EXAMINATION
BY MR. DUSEK:
Q.: HOW ARE YOU EMPLOYED, MR. RAYBOULD?
A.: I WORK AT SINGING HILLS GOLF AND COUNTRY CLUB.
Q.: WHERE’S THAT LOCATED?
A.: EL CAJON.
Q.: ON A STREET?
A.: DEHESA VALLEY.
Q.: WHAT’S THE ADDRESS ON DEHESA?
A.: 3007 DEHESA.
Q.: HOW LONG HAVE YOU BEEN OUT THERE?
A.: I WORKED AT SINGING HILLS FOR TWENTY-THREE YEARS.
Q.: WHAT DID YOU START AS OUT THERE?
A.: CUPPER, MOVE PINS, MOW GREENS.
Q.: WHAT ARE YOU NOW?
A.: I’M THE ASSISTANT SUPERINTENDENT.
Q.: WHAT DOES THE ASSISTANT SUPERINTENDENT DO?
A.: MY BASIC JOB EVERY DAY IS TO RUN THE IRRIGATION. I MANAGE THE WATER AND DIRECT THE WATER.
Q.: HOW LONG HAVE YOU HAD THAT POSITION?
A.: ABOUT TWELVE YEARS.
Q.: AND AS PART OF YOUR DUTIES REGARDING THE IRRIGATION, IS THE WEATHER AN IMPORTANT FACTOR?
A.: IT’S EXTREMELY IMPORTANT. IT’S A TOOL THAT I USE TO PUT WATER OUT AT NIGHT.
Q.: WHY IS IT IMPORTANT?
MR. FELDMAN: YOUR HONOR, I’M SORRY. I DIDN’T HEAR THE END POINT OF THE WITNESS’ ANSWER.
THE COURT: YOU CAN READ IT BACK, BOB.
(THE FOLLOWING WAS READ BY THE REPORTER?
"A.: IT’S EXTREMELY IMPORTANT. IT’S A TOOL THAT I USE TO
PUT WATER OUT AT NIGHT.")
MR. FELDMAN: THANK YOU.
BY MR. DUSEK:
Q.: WHY IS IT IMPORTANT, MR. RAYBOULD?
A.: IT GIVES ME THE TEMPERATURE. IT GIVES ME THE HUMIDITY. HELPS ME MAKE DECISIONS.
Q.: LET ME SHOW YOU A MAP, AT LEAST AN AERIAL PHOTOGRAPH.
THE COURT: COUNSEL, I BELIEVE IT’S RIGHT BEHIND SOME OF THESE BOARDS HERE.
BY MR. DUSEK:
Q.: MR. RAYBOULD, I ASK YOU TO LOOK AT COURT’S EXHIBIT 2 AND SPECIFICALLY PHOTOGRAPH A AT THE TOP. DO YOU RECOGNIZE THE AREA THAT WE HAVE DEPICTED IN THAT TOP PHOTOGRAPH?
A.: YES. THAT’S THE SAND PIT WITH THE DEHESA ROAD RIGHT THERE.
Q.: WHERE IS THAT IN RELATION TO YOUR GOLF COURSE?
A.: THE GOLF COURSE IS OVER THIS WAY.
Q.: WHERE YOU POINTED TO WAS THE GREEN AREA AT THE TOP RIGHT SIDE OF THAT PHOTOGRAPH?
A.: CORRECT.
Q.: THAT’S SINGING HILLS GOLF COURSE?
A.: YES, IT IS.
Q.: ABOUT HOW FAR IS IT FROM THE ENTRANCE TO YOUR GOLF COURSE TO THIS ENTRANCE TO THE SAND AND GRAVEL PIT?
A.: A LITTLE OVER A MILE MAYBE.
Q.: BECAUSE OF YOUR CONCERN ABOUT THE WEATHER AT THE GOLF COURSE, DO YOU HAVE ANY WEATHER DATA AVAILABLE TO YOU AT THE GOLF COURSE?
A.: YEAH. THE WEATHER STATION DOWNLOADS DATA DAILY.
Q.: WHERE IS THE WEATHER STATION?
A.: IT’S ON THE NINTH FAIRWAY OF OAKLYN.
Q.: OAKLYN IS WHAT?
A.: THAT’S ONE OF THE GOLF COURSES.
Q.: SO IT’S ON THE PROPERTY?
A.: YES, IT IS.
Q.: WHAT TYPE OF WEATHER DATA DO YOU HAVE ON THE PROPERTY?
A.: IT GIVES US TEMPERATURE, LOW AND HIGH, HUMIDITY, SOLAR RADIATION, WIND DIRECTION.
Q.: HOW OFTEN DOES IT DO THAT?
A.: IT DOES THAT EVERY DAY.
Q.: IS THE WEATHER-GATHERING INFORMATION HOOKED UP TO ANY SORT OF DEVICE?
A.: THE WEATHER STATION ITSELF HAS A DATA LOGGER IN IT, KIND OF A COMPUTER. AND IT’S BASICALLY RAN WITH WIRES BACK TO MY OFFICE, BACK TO A COMPUTER, CENTRAL LOCATED, AND BASICALLY TIES RIGHT INTO MY COMPUTER.
Q.: AND WHO HAS CONTROL OVER YOUR COMPUTER?
A.: I DO. I HAVE A FEW ASSISTANTS THAT CAN GET THAT INFORMATION. AND I ALSO HAVE A SUPERVISOR THAT CAN GET THAT INFORMATION.
Q.: AND DID WE ASK YOU FOR SOME WEATHER DATA FROM YOUR GOLF COURSE FOR THE MONTH OF FEBRUARY OF THIS YEAR?
A.: YES, YOU DID.
Q.: LET ME SHOW YOU WHAT’S BEEN PREVIOUSLY MARKED AS COURT’S EXHIBIT 187, A THREE-PAGE DOCUMENT. THE FIRST TWO PAGES APPEAR TO BE COLUMNS UNDER CATEGORIES WITH A LOT OF NUMBERS. THE LAST PAGE APPEARS TO BE ONLY ONE COLUMN WITH SOME NUMBERS. DO YOU RECOGNIZE WHAT WE HAVE THERE, MR. RAYBOULD?
A.: YES, I DO.
(THREE-PAGE DOCUMENT DEPICTING WEATHER DATA FROM
SINGING HILLS GOLF COURSE MARKED TRIAL EXHIBIT NUMBER 187
FOR IDENTIFICATION.)
BY MR. DUSEK:
Q.: COULD YOU HOLD IT UP AND SHOW THE JURY AND DESCRIBE THE COLUMNS THAT WE HAVE THERE.
A.: BASICALLY IT HAS THE DATE, HUMIDITY, WIND VELOCITY, SOLAR RADIATION, THE RAINFALL, MINIMUM TEMPERATURE, MAXIMUM TEMPERATURE, AND THIS LAST ONE HERE IS AN E.T.
Q.: E.T. MEANS WHAT?
A.: EVAPOTRANSPORTATION. BASICALLY WHAT THAT DOES, THE WEATHER STATION TAKES ALL THIS OTHER DATA, AND IT GIVES ME A NUMBER OVER HERE. AND WHAT THAT HELPS ME DO, IT HELPS ME DECIDE HOW MANY, HOW MUCH WATERING NEEDS TO GO OUT.
Q.: SO YOU RELY UPON THE WEATHER DATA THAT COMES THROUGH YOUR WEATHER SYSTEM THERE?
A.: WE LOOK AT IT, BUT I DON’T REALLY — I DON’T RELY ON IT TO PUT WATER OUT. I MAKE THOSE DECISIONS MYSELF, HANDS ON.
Q.: ALL RIGHT.
HOW LONG HAS THAT WEATHER SYSTEM BEEN ON THE PROPERTY?
A.: AS LONG AS I CAN REMEMBER THERE WAS A WEATHER STATION THERE.
Q.: THERE IS A WIND COLUMN IN THAT EXHIBIT, CORRECT?
A.: YES.
Q.: THERE APPEARS TO BE A WHOLE LOT OF ZEROS IN THAT COLUMN. IS THAT CORRECT?
A.: YES.
Q.: DO YOU KNOW WHY THAT IS?
A.: YES, I DO.
Q.: WHY?
A.: THE WIND THAT GOES AROUND WAS HIT WITH A GOLF BALL, AND IT WAS BROKE FOR A WHILE.
Q.: DO YOU KNOW WHEN THAT WAS FIXED, APPROXIMATELY?
MR. FELDMAN: ASSUMES FACTS NOT IN EVIDENCE.
THE COURT: OVERRULED.
THE WITNESS: I KNOW EXACT. IT WAS JUST A MONTH AGO.
MR. DUSEK: ALL RIGHT.
BY MR. DUSEK:
Q.: THE WEATHER THERE AT YOUR GOLF COURSE, DOES THAT DIFFER AT ALL FROM THE SURROUNDING AREAS WHERE YOU ARE?
MR. FELDMAN: FOUNDATION.
THE COURT: SUSTAINED.
BY MR. DUSEK:
Q.: DO YOU LIVE ON THE PROPERTY, SIR?
A.: YES, I DO.
Q.: WHAT TIME DO YOU START WORK?
A.: 5:00 O’CLOCK.
Q.: IN THE MORNING?
A.: YES.
Q.: ON THE GOLF COURSE HOW IMPORTANT ARE THE GREENS ON YOUR GOLF COURSE?
A.: IT’S WHAT WE DO FOR A LIVING. VERY IMPORTANT.
Q.: IS IT IMPORTANT TO TAKE CARE OF THEM?
A.: YES.
Q.: DURING THE WINTERTIME IS THERE AN ESPECIAL CONCERN ABOUT THE GREENS AND THEIR MAINTENANCE?
A.: ABSOLUTELY.
Q.: IS THERE SUCH A THING AS FROST ON THE GREENS?
A.: YES.
Q.: WHAT IS THAT?
A.: WELL, THE DEW POINT OR THE WATER WE PUT OUT AT NIGHT, TEMPERATURE GETS BELOW FREEZING AND IT FREEZES.
Q.: AND HOW DOES THAT AFFECT THE GREENS?
A.: WELL, IF GRASS IS FROZEN, IT ACTUALLY WILL DIE IF YOU WALK ON IT OR IF YOU MOW IT, IF YOU TAKE ANY EQUIPMENT ON IT. IT ACTUALLY BREAKS THE CROWN OF THE PLANT, AND IT DIES.
Q.: AND DOES THAT AFFECT YOUR DECISIONS ON WHEN TO MOW THE GRASS, THE GREENS, ON THOSE FROST DAYS?
A.: YES, IT DOES.
Q.: HOW SO?
A.: WE CANNOT PUT ANY EQUIPMENT OR ANY PLAY OR ANYBODY ON IT. IT’S NOT JUST GREENS, ANYWHERE, ROUGHS, TEES, ANYTHING, UNTIL IT WARMS UP AND IT’S TIME TO DO SO.
Q.: HOW LONG DOES THAT TAKE?
A.: DEPENDING ON THE DAY, IT CAN BE ANYWHERE BETWEEN TWO AND A HALF TO THREE HOURS.
Q.: WHICH GETS YOU TO ABOUT WHAT TIME?
A.: 8:00 TO 9:00.
Q.: IN THE MORNING?
A.: YEAH.
Q.: DO YOU KEEP TRACK OF THOSE DAYS WHERE THE GREENS ARE FROSTED?
A.: YES, WE DO.
Q.: HOW?
A.: WELL, I SIMPLY WRITE IT DOWN.
Q.: IS THAT — DO YOU MAINTAIN THAT IN YOUR COMPUTER?
A.: YES.
Q.: DID YOU ALSO GIVE US A LIST OF THE DAYS WHERE THERE WAS FROST ON THE GREENS IN FEBRUARY OF THIS YEAR?
A.: YES, I DID. IT’S HERE. RIGHT HERE.
Q.: IS THAT THE THIRD PAGE OF THE DOCUMENT?
A.: YES, IT IS.
Q.: FOR THE MONTH OF FEBRUARY OF THIS YEAR, WHICH DAYS WERE THE GREENS FROSTED? GO SLOWLY.
A.: 1ST, 2ND, 3RD, 4TH, 5TH, 6TH, 7TH, 8TH, 9TH, AND THE 11TH.
Q.: WHAT DOES THAT MEAN ON THOSE DAYS REGARDING CONDITION OF THE GREENS?
A.: THAT MEANS THAT I WENT IN AT 5:30 IN THE MORNING TO THE PRO SHOP, AND I TOLD THEM THERE WOULD BE NO PLAY UNTIL I GOT BACK TO THEM LATER THAT MORNING.
Q.: WHY DO YOU HAVE TO TELL THEM THAT?
A.: WE DON’T WANT ANYBODY ON THE GRASS.
Q.: IT WILL RUIN THE GRASS?
A.: I MEAN NO ONE HITS BALLS ON THE DRIVING RANGE, NO ONE PUTTS, NO ONE CAN GO OUT. ACTUALLY ALL GRASS IS OFF LIMITS TO ANY TYPE OF PLAY.
Q.: AND BY KEEPING TRACK OF THAT DATA, DOES THAT AFFECT THE INCOME AT SINGING HILLS?
A.: ABSOLUTELY.
Q.: HOW SO?
A.: MOST OF THE MORNING GOLFERS WOULD SIMPLY GO HOME.
Q.: WHY?
A.: WHO WANTS TO WAIT THREE HOURS.
Q.: ALL RIGHT.
WHEN ARE THEY INITIALLY ALLOWED ON THE COURSE ON A REGULAR DAY IN THE WINTER?
A.: AT LIGHT. YOU KNOW, WHEN IT’S TIME WHEN YOU CAN SEE.
Q.: ALL RIGHT.
AND I ASSUME THAT THE SPEED IN WHICH THE GREENS THAT YOU OR THE GRASS DEFROSTS VARIES ACCORDING TO DAY.
A.: EACH DAY IS DIFFERENT DAY, YES, ABSOLUTELY.
Q.: ALL RIGHT.
MR. DUSEK: THANK YOU, SIR.
THE COURT: ALL RIGHT.
CROSS-EXAMINATION

CROSS-EXAMINATION
BY MR. FELDMAN:
Q.: SORRY. I WOULD JUST LIKE TO SEE THE CHART YOU GOT UP THERE. THANK YOU VERY MUCH.
SIR, IF I UNDERSTOOD YOU CORRECTLY, IT FROSTS WHEN THE WEATHER GETS BELOW 32 DEGREES. IS THAT RIGHT, SIR?
A.: NOT NECESSARILY, NO.
Q.: WELL, HOW CAN YOU TELL WHETHER —
A.: THE TEMPERATURE CAN RANGE FROM ANYWHERE BETWEEN 37 AND 22 AND YOU COULD HAVE FROST.
Q.: OKAY.
AND THESE ARE IN AREAS WHERE YOU’VE PREVIOUSLY WATERED, IS THAT RIGHT? THE FROST OCCURS IN AREAS THAT YOU’VE WATERED, IS THAT RIGHT?
A.: THE WHOLE GOLF COURSE, YES.
Q.: THE SAND TRAPS?
A.: NO.
Q.: YOU HAVE ANIMALS OUT THERE, DON’T YOU?
A.: YES.
Q.: FROM TIME TO TIME YOU HAVE PROBLEMS WITH GOPHERS?
A.: YES.
Q.: RODENTS?
A.: YES.
Q.: YOU SEE COYOTES OUT THAT WAY?
A.: M-HM.
Q.: YOU SAID UH-HUH. I’M SORRY. YOU GOT —
A.: YES.
Q.: I’M SORRY. YOU GOT TO SAY YES OR NO.
SO SMALL ANIMALS.
AND HOW MUCH DO YOU WATER WHEN YOU WATER?
A.: ON WHAT DAY?
Q.: WELL, WHEN YOU DECIDE THAT IT’S APPROPRIATE TO WATER, HOW DO YOU GO ABOUT DETERMINING HOW MUCH WATER TO PUT IN? IS THERE SOME COMPUTER SYSTEM? DO YOU JUST, I DON’T KNOW, TURN A BUTTON THAT SAYS ADD THIS MUCH WATER FOR THAT MANY MINUTES? HOW DO YOU MAKE THAT DECISION HOW MUCH WATER TO HAVE?
A.: I MAKE THAT DECISION BASICALLY MYSELF. THAT E.T. ON THAT SHEET HELPS ME DO THAT.
Q.: NOW, YOU SAID E.T. I WANT TO GET YOU BACK YOUR SHEET. I DIDN’T MEAN TO LIFT IT FROM YOU. SORRY.
A.: THE COMPUTER BASICALLY TAKES ALL THIS OTHER INFORMATION, AND IT GIVES ME AN E.T. AND THEN I WILL SIMPLY PLUG THAT E.T. INTO OUR COMPUTER, AND WE WATER.
Q.: YOU’RE USING — I JUST DON’T REMEMBER WHAT YOU SAID E.T. STANDS FOR.
A.: EVAPOTRANSPORTATION.

Q.: OKAY.
AND WHAT DOES THAT MEAN?
A.: BASICALLY IT MEANS HOW MUCH WATER DOES THAT PLANT NEED TO TAKE IN TO SURVIVE FOR THAT DAY.
Q.: SO YOU HAVE TRAINING IN BOTANY?
A.: NO.
Q.: YOU HAVE TRAINING IN METEOROLOGY?
A.: NO.
Q.: IT’S JUST STUFF YOU PICK UP ON THE JOB?
A.: YES.
Q.: AND YOU’RE CAREFUL NOT TO DESTROY ANY OF THE VEGETATION OR GREENERY BECAUSE YOU NEED IT TO BE THERE, RIGHT?
A.: ON THE FROST MORNINGS?
Q.: ON ANY MORNINGS, AT ALL TIMES, YOU’RE CAREFUL NOT TO DO ANYTHING THAT IS GOING TO DESTROY THE GREENS, WHICH IS THE BASIS OF YOUR LIVING, RIGHT?
A.: YES.
Q.: YOU MENTIONED THAT THERE WERE CERTAIN DAYS, I THINK YOU TOLD US THE LAST DAY THAT IT FROZE WAS THE 11TH OF FEBRUARY. IS THAT RIGHT? I’M SORRY. THAT THERE WAS FROST. WAS IT THE 11TH OF FEBRUARY?
A.: YES.
Q.: I WOULD LIKE TO DIRECT YOUR ATTENTION TO WHAT’S BEEN PREVIOUSLY MARKED 169. WE SEE THE 11TH OF FEBRUARY. WE HAVE ANOTHER WITNESS CAME AND TOLD US THERE WERE SANTA ANA WINDS. DO YOU GET SANTA ANA WINDS OUT IN SINGING HILLS?
A.: SURE.
Q.: AND DO THEY AFFECT HOW COLD IT GETS AT NIGHT?
A.: USUALLY IT’S WARMER.
Q.: GETS WARMER.
SO IF IT’S 82 DEGREES, WE’LL SAY, AT LINDBERG, IT’S WARMER AT SINGING HILLS, IS THAT RIGHT?
A.: NO.
MR. DUSEK: VAGUE. MISSTATES THE EVIDENCE AS TO 82 DEGREES, WHERE IT WAS.
THE COURT: YES. SUSTAINED.
THE WITNESS: I DON’T KNOW WHERE YOU GOT THAT TEMPERATURE AT, BUT ON THE 11TH OF FEBRUARY, ACCORDING TO THESE CHARTS, IT WAS 34 DEGREES.
BY MR. FELDMAN:
Q.: THAT WAS THE COLD, IS THAT RIGHT?
A.: M-HM.
Q.: ALL RIGHT.
I’M ASKING YOU ABOUT THE HIGH.
A.: 76.
Q.: AND HOW LONG DID IT TAKE TO —
A.: 73.
Q.: I’M SORRY, SIR.
HOW LONG DOES IT TAKE TO HEAT UP? DO YOU KNOW IF IT IS — I’M SORRY. YOU TOLD US — I’M SORRY. YOU WERE ASKING ME WHERE I GOT THE NUMBERS. THESE ARE JUST ANOTHER WITNESS TOLD US THIS IS WHAT LINDBERG FIELD WAS RUNNING HIGH. THAT’S JUST —
MR. DUSEK: OBJECTION. MISSTATES THE EVIDENCE.
THE COURT: I BELIEVE THAT’S CORRECT. SUSTAINED.
MR. FELDMAN: FAULKNER, YOUR HONOR.
THE COURT: ALL RIGHT.
BY MR. FELDMAN:
Q.: WITH REGARD TO YOUR CALCULATIONS, WHAT DO YOU SAY SINGING HILLS WAS ON FEBRUARY 11, SIR, THE HIGH AND LOW, JUST BASED ON THAT PIECE OF PAPER YOU GOT?
A.: THE LOW WAS 34. THE HIGH WAS 73.
Q.: SO HOW LONG, IF YOU KNOW, GENERALLY, BASED ON YOUR EXPERIENCE, — YOU TOLD US YOU LIVED THERE FOR A NUMBER OF YEARS, IS THAT RIGHT?
A.: M-HM.
Q.: GENERALLY IF IT’S — I THINK YOU JUST TOLD ME 29 LOW, I’M SORRY, AND IT GOT INTO THE SEVENTIES HIGH.
A.: I TOLD YOU 34.
Q.: HOW LONG WILL IT TAKE TO HEAT UP? I’M HAVING A PROBLEM THIS MORNING. HOW LONG WILL IT TAKE TO HEAT UP?
MR. DUSEK: VAGUE AS TO WHERE.
THE COURT: WE’RE TALKING ABOUT YOUR GOLF COURSE AND YOUR PERSONAL KNOWLEDGE, SIR.
THE WITNESS: IT’S USUALLY ABOUT THREE HOURS.
MR. FELDMAN: ALL RIGHT.
BY MR. FELDMAN:
Q.: SO THAT FIRST TEMPERATURE READING, WHAT TIME DOES THAT HAPPEN AT?
A.: THAT FIRST TEMPERATURE READING 34 WAS PROBABLY ABOUT 4:30 IN THE MORNING.
Q.: ARE YOU GUESSING, SIR?
A.: NO.
Q.: WELL, WHY DID YOU SAY PROBABLY?
A.: ‘CAUSE I COME IN AT 5:00 O’CLOCK. I DON’T COME IN AT 4:30 IN THE MORNING.
Q.: SO YOU MEAN BY THE TIME YOU GET THERE THE WEATHER DATA IS ALREADY THERE, IS THAT RIGHT?
A.: IF I WANT TO LOOK AT IT, YEAH, IT’S THERE.
Q.: DO YOU KNOW WHAT TIME THE WEATHER DATA ARRIVES AT YOUR DATA STATION?
A.: NO. NOT REALLY. NO.
Q.: SO IT JUST ISN’T FAIR TO SAY THAT THE TEMPERATURE YOU INDICATED, I THINK YOU JUST TOLD ME WAS 34 DEGREES ON FEBRUARY THE 11TH, IT COULD HAVE BEEN 34 DEGREES AT WHAT, 2:00 O’CLOCK IN THE MORNING?
A.: NO, I DON’T THINK SO. NO.
Q.: 3:00 O’CLOCK IN THE MORNING?
A.: NO.
Q.: 3:30?
A.: NO.
Q.: 4:30?
A.: NO.
Q.: WHY DO YOU SAY THAT, SIR?
A.: BECAUSE ACTUALLY YOU’RE CONFUSING ME. IT ACTUALLY PEAKS ABOUT 6:30 IN THE MORNING.
Q.: OKAY. IF I’M — IF ANY QUESTION OF MINE IS CONFUSING YOU, PLEASE LET US KNOW, OKAY, AND I WILL JUST ASK YOU ANOTHER QUESTION.
SO PLEASE TELL ME WHAT WERE YOU CONFUSED ABOUT, SIR?
A.: WHAT WAS YOUR QUESTION AGAIN?
Q.: MY QUESTION IS WITH REGARD TO THE TIME OF THE WEATHER DATA, WHAT TIME DOES THE WEATHER DATA ARRIVE BEFORE YOU LOOK AT IT, IF YOU KNOW?
A.: WHAT TIME DOES IT DOWNLOAD —
Q.: YES.
A.: — BASICALLY?
DOWNLOADS AT 1:00 O’CLOCK IN THE AFTERNOON.
Q.: YES, SIR.
A.: AND ACTUALLY THE DATA DOWNLOADS AT 1:00 O’CLOCK IN THE AFTERNOON, BUT I CAN ACTUALLY ACCESS THAT INFORMATION WHENEVER I WANT.
Q.: WELL, IF THE DATA DOWNLOADS AT 1:00 O’CLOCK, —
A.: IT DOWNLOADS INTO THE COMPUTER. I CAN GET IT ON A SCREEN AT ANY TIME.
Q.: WHEN IT DOWNLOADS ON THE COMPUTER AT 1:00 O’CLOCK IN THE AFTERNOON, WHAT INFORMATION IS IT DOWNLOADING?
A.: ALL OF THIS. EVERYTHING.
Q.: OKAY.
IN OTHER WORDS, THE WEATHER THAT EXISTS. BUT ON THE CHART THAT YOU GOT IN FRONT OF YOU IT DOESN’T GIVE US A TIME, DOES IT?
A.: NO.
Q.: AND SO SPECIFICALLY — LET’S JUST STAY ON THE 11TH OF FEBRUARY, DO YOU HAVE A SPECIFIC RECOLLECTION AS TO THE TIME ON FEBRUARY THE 11TH YOU LOOKED AT THE WEATHER AND YOU SAW IT WAS 34 DEGREES?
A.: ARE YOU ASKING ME TO REMEMBER WHAT TIME I LOOKED AT THAT?
Q.: I’M ASKING YOU DO YOU REMEMBER WHAT TIME YOU LOOKED AT IT.
A.: NO.
Q.: AND THEN YOU TOLD US THAT THERE WAS A HIGH AND THAT THE HIGH ON FEBRUARY THE 11TH WAS I THINK YOU SAID 73 OR SO DEGREES.
A.: YES, IT IS. YES.
Q.: CAN YOU TELL US WHAT TIME IT WAS THAT IT WAS 34 DEGREES AT SINGING HILLS?
A.: NO.
Q.: CAN YOU TELL US WHAT TIME IT WAS AT SINGING HILLS THAT IT WAS 73 ON FEBRUARY THE 11TH?
A.: NO.
Q.: AND ARE THOSE ANSWERS THE SAME AS TO EVERY PIECE OF WEATHER THAT’S REFLECTED ON THE CHART YOU GOT? YOU JUST CAN’T TELL US THE TIMES THAT THOSE TEMPERATURES REFLECT, IS THAT A FAIR STATEMENT?
A.: YES.
Q.: SIR, HOW MANY DIFFERENT GOLF COURSES ARE THERE IN THE AREA OF SINGING HILLS?
A.: THERE ARE TWO OTHER GOLF COURSES IN THAT AREA.
Q.: AND ARE YOU RESPONSIBLE FOR THOSE?
A.: NO.
Q.: WE SEE IN WHAT’S PREVIOUSLY BEEN MARKED 2, I THINK MR. DUSEK SHOWED THIS TO YOU, SIR, — YOU’VE GOT A POINTER RIGHT THERE AT YOUR LEFT IF YOU NEED IT. CAN YOU PLEASE SHOW US WHERE’S — IF YOU SEE IT, I DON’T EVEN KNOW IF YOU SEE IT, SIR. CAN YOU SEE WHERE YOUR GOLF COURSE MIGHT BE?
A.: YES.
Q.: OKAY.
AND FOR THE RECORD YOU’RE POINTING TO AN AREA THAT’S AT THE TOP OF THE EXHIBIT THAT’S 2, IS THAT RIGHT, SIR?
A.: YES.
Q.: WHAT I’M GOING TO DO IS ASK YOU TO PLEASE — I NEED TO GET THE EXHIBITS OUT OF THE WAY. THEY HAVE A TENDENCY TO FALL ON ME.
THERE’S PENS RIGHT THERE, SIR, AT THE WITNESS BOX. IF YOU COULD JUST DRAW A CIRCLE WHERE — AND IF YOU WANT TO WRITE S. H. FOR SINGING HILLS OR WHATEVER YOU’RE COMFORTABLE WITH JUST TO ILLUSTRATE FOR THE JURY WHERE YOU’RE DESCRIBING SINGING HILLS GOLF COURSE IS, PLEASE. I WILL HOLD IT FOR YOU. WHATEVER YOU WOULD LIKE ME TO DO TO HELP YOU OUT.
A.: (THE WITNESS COMPLIED.)
DO YOU WANT S. H. ON IT?
Q.: PLEASE.
A.: (THE WITNESS COMPLIED.)
MR. FELDMAN: YOUR HONOR, FOR THE RECORD THE WITNESS HAS ON 2 DRAWN A CIRCLE IN THE AREA THAT APPEARS TO BE AT THE TOP OF THE CHART UNDER PHOTO A.
BY MR. FELDMAN
Q.: IT’S ACTUALLY AN OVAL, IT’S NOT REALLY A CIRCLE, IS THAT. . .
THAT SAYS S.H. ON IT, RIGHT?
A.: YES.
Q.: NOW, YOU TOLD US THAT THERE WERE TWO GOLF COURSES, MORE THAN ONE GOLF COURSE, IS THAT RIGHT?
A.: IN DEHESA VALLEY?
Q.: YES.
A.: WELL, WITHIN FIFTEEN MILES, YEAH. THERE’S TWO OTHER GOLF COURSES.
Q.: AND WHAT ARE THEY CALLED?
A.: RANCHO SAN DIEGO, COTTONWOOD. AND STEEL CANYON.
Q.: DID YOU SAY THAT THERE WERE TWO, TWO GOLF COURSES, AT SINGING HILLS? I’M SORRY. I JUST DIDN’T UNDERSTAND.
A.: THERE ARE THREE EIGHTEEN-HOLE GOLF COURSES AT SINGING HILLS.
Q.: AND YOU ARE RESPONSIBLE FOR MAKING SURE THAT THERE’S ENOUGH WATER TO GROW THE GRASS AND MAKE THE GREENS SAFE AT THOSE THREE GOLF COURSES?
A.: I’M RESPONSIBLE FOR DIRECTING THE WATER.
Q.: AT THREE SEPARATE GOLF COURSES?
A.: M-HM.
Q.: YOU SAID UH-HUH AGAIN. SORRY.
A.: YES.
Q.: AND ON EXHIBIT 2 WHERE YOU GAVE ME THE CIRCLE, WHERE ARE THE OTHER TWO GOLF COURSES OR ARE THEY WITHIN THAT AREA?
A.: THEY’RE WEST OF THAT.
Q.: OKAY. I’M SORRY. YOU SAID WEST. IS THAT ON THE LEFT OR ON THE RIGHT OF THE CHART AS WE FACE IT?
A.: WELL, YOU CAN’T SEE THEM FROM THAT CHART.
Q.: UNDERSTOOD.
BUT WHICH WAY IS WEST?
A.: IT WOULD BE STRAIGHT UP.
Q.: OKAY.
AND HOW MUCH DISTANCE WOULD YOU ESTIMATE BETWEEN THE SINGING HILLS GOLF COURSE THAT YOU CIRCLED AND THE NEXT TWO?
A.: COTTONWOOD’S ABOUT EIGHT MILES AND STEEL CANYON’S PROBABLY AROUND THE SAME.
Q.: THOSE ARE THE — OKAY.
DO YOU INCLUDE THOSE, COTTONWOOD AND STEEL CANYON, AS GOLF COURSES THAT YOU HAVE RESPONSIBILITY FOR?
A.: NO.
Q.: SO THOSE ARE TWO ADDITIONAL GOLF COURSES IN THE AREA, IS THAT RIGHT?
A.: YES.
Q.: SO THERE’S A TOTAL OF FIVE GOLF COURSES.
A.: YES.
Q.: AND AS TO EACH GOLF COURSE, — YOU DRIVE THE AREA, DON’T YOU?
A.: YES.
Q.: THEY’RE KEPT GREEN, AREN’T THEY?
A.: YES.
Q.: AND IN ORDER TO KEEP THEM GREEN, YOU GOT TO ADD WATER, CORRECT?
A.: CORRECT.
Q.: ADN IT DOESN’T MATTER WHETHER THERE’S A DROUGHT AS TO WHETHER OR NOT YOU ADD WATER, ISN’T THAT TRUE?
A.: REPEAT THAT, PLEASE.
Q.: SURE.
IF THERE’S A DROUGHT, THAT’S NOT GOING TO CAUSE YOU TO STOP ADDING WATER, IS IT?
A.: YES, IT MIGHT.
Q.: UNDER WHAT CIRCUMSTANCES?
A.: IF YOU DON’T HAVE ANY WATER.
Q.: OKAY.
THEN ALL YOUR GREENS WOULD DIE, WOULDN’T THEY?
A.: YES, THEY WOULD.
Q.: EVER BEEN IN THAT POSITION?
A.: WE’RE IN A DROUGHT RIGHT NOW.
Q.: UNDERSTOOD.
ARE YOUR GREENS DEAD?
A.: NO.
Q.: SO YOU CONTINUE TO ADD WATER, IS THAT RIGHT, SIR?
A.: CORRECT.
Q.: WHAT GOLF — WHAT KIND OF — YOU DON’T HAVE A NATIONAL WEATHER SERVICE DATA CENTER, DO YOU, THAT FEEDS YOU THE INFORMATION?
A.: NO.
Q.: OH, IT’S A PRIVATE — YOU GET PRIVATE WEATHER, IS THAT RIGHT?
A.: YES.
Q.: WHO DO YOU PAY TO GET THAT INFORMATION, SIR?
A.: I DON’T.
Q.: DON’T YOU HAVE TO PAY SOMEBODY?
A.: FOR WHAT? I DON’T UNDERSTAND.
Q.: FOR THE WEATHER INFORMATION.
A.: NO.
Q.: HOW DOES IT COME TO YOU?
A.: WE HAVE OUR OWN WEATHER STATION.
Q.: WHO’S WE?
A.: SINGING HILLS.
Q.: WHO’S RESPONSIBLE FOR MAINTAINING THAT WEATHER STATION?
A.: SINGING HILLS IS.
Q.: WHAT’S THE NAME OF THE INDIVIDUAL?
A.: THAT HAS A CONTRACT TO MAINTAIN THAT?
Q.: OH. SOMEBODY HAS A CONTRACT TO MAINTAIN IT?
A.: YES.
Q.: WHO’S THAT?
A.: THAT WOULD BE HIGH TECH. GOLF.
Q.: I’M SORRY. HIGH TECH. —
A.: HIGH TECH. GOLF.
Q.: HIGH TECH. GOLF.
AND WHERE IS HIGH TECH. GOLF LOCATED?
A.: WHERE THEIR CORPORATE OFFICE IS I BELIEVE IT’S IN INDIO, DOWN IN THE DESERT.
Q.: AND HOW OFTEN TO THE BEST OF YOUR PERSONAL KNOWLEDGE IN FEBRUARY AND MORE SPECIFICALLY AROUND FEBRUARY THE 11TH OF 2002 DID HIGH TECH. GOLF COME OUT AND CALIBRATE THE WEATHER STATION COLLECTION INFORMATION?
A.: THE WEATHER WAS CALIBRATED ABOUT A MONTH AGO.
Q.: I’M SORRY. WHEN YOU SAY ABOUT A MONTH AGO, TODAY WE’RE TALKING JULY —
A.: THE EXACT DATE, I DON’T REMEMBER THE EXACT DATE.
Q.: I’M SORRY. WHEN YOU SAY A MONTH AGO, THOUGH, AND YOU ALSO TOLD US THAT I GUESS THE GOLF BALL-DAMAGED EQUIPMENT WAS REPAIRED ABOUT A MONTH AGO. WE’RE TALKING TODAY’S IN JULY. YOU’RE TALKING ABOUT JUNE OF THIS YEAR, IS THAT RIGHT, SIR?
A.: IT WAS IN JUNE OR LATER THE NEXT MONTH. I DON’T KNOW THE EXACT DATE WHEN IT WAS CALIBRATED, BUT THEY WERE JUST OUT. WE JUST HAD IT CALIBRATED.
Q.: OKAY.
AND IN FEBRUARY, WHEN WERE THEY CALIBRATED?
A.: THE LAST TIME?
Q.: DO YOU HAVE A SPECIFIC — DO YOU KNOW WHEN THEY
WERE —
A.: 1999.
Q.: OKAY.
SO THEY WERE CALIBRATED, THE INFORMATION WAS CALIBRATED IN 1999, AND THEN AGAIN IN JUNE OF 2002, IS THAT RIGHT?
A.: CORRECT.
Q.: AND DID YOU GET RECORDS, WERE YOU ASKED TO PRODUCE RECORDS TO DEMONSTRATE HOW THAT CALIBRATION INDICATED WHETHER OR NOT YOUR WEATHER INFORMATION WAS ACCURATE OR INACCURATE?
A.: NO.
Q.: THEY DIDN’T ASK YOU TO BRING THAT TO THEM?
A.: NO.
Q.: AND WITH REGARD TO THE MACHINE, DO YOU HAVE SOME KIND OF A MAINTENANCE CONTRACT THAT BRINGS OUT PEOPLE TO MAKE SURE THAT THE INFORMATION THAT’S BEING COLLECTED IS ACCURATE?
A.: WE HAVE A CONTRACT WITH HIGH TECH. GOLF DOES THAT FOR US.
Q.: AND DO YOU KNOW WHETHER HIGH TECH. GOLF COMMUNICATES WITH THE NATIONAL WEATHER SERVICE?
A.: NO.
Q.: DO YOU KNOW WHETHER OR NOT WITH REGARD TO YOUR WORK ANY OF THE WEATHER DATA IS BASED UPON NATIONAL WEATHER SERVICE INFORMATION?
A.: NO.
Q.: WITH REGARD TO THE MACHINES THAT ARE UTILIZED, YOU TOLD US THAT IN RESPONSE TO ONE OF MR. DUSEK’S QUESTIONS WE GOT A PROBLEM WITH THE WIND VELOCITY. IT’S NOT ACCURATELY REFLECTED ON THE CHART THAT YOU BROUGHT, IS THAT RIGHT, SIR?
A.: THAT’S CORRECT.
Q.: SO THE CHART THAT YOU’VE PRODUCED IN COURT CONTAINS A SERIES OF INACCURACIES, RIGHT?
A.: ON THE WIND.
Q.: WELL, WE KNOW FOR SURE ON THE WIND BECAUSE WE HAVE ALL THESE ZEROS, CORRECT?
A.: CORRECT.
Q.: AND WE KNOW THAT THERE’S SOME WIND THAT BLOWS THAT WOULD CAUSE IT TO BE GREATER THAN ZERO, IS THAT CORRECT?
A.: THAT’S CORRECT.
Q.: HOW MUCH MORE WIND WAS THERE ON FEBRUARY THE 11TH?
A.: I DON’T KNOW.
Q.: WAS THAT MACHINE PARTIALLY FUNCTIONAL? DO YOU UNDERSTAND WHAT I’M ASKING YOU?
A.: THE WIND?
Q.: YES.
A.: PART OF IT. PARTIALLY FUNCTIONAL.
Q.: YES.
A.: I WOULD SAY SO BECAUSE IT HAS SOME READINGS ON IT.
Q.: OKAY.
NOW LET ME DIRECT YOUR ATTENTION TO THE DATES AFTER FEBRUARY THE 11TH. WE SEE ON FEBRUARY THE 12TH A WIND VELOCITY MILES PER HOUR IT SAYS .06.
A.: CORRECT.
Q.: AND THEN ON THE 13TH IT SAYS .38.
A.: CORRECT.
Q.: AND THEN ON THE 14TH IT SAYS .13. IS THAT RIGHT?
A.: YES.
Q.: AND ON THE 15TH IT SAYS .07, RIGHT?
A.: M-HM. CORRECT.
Q.: AND ON THE 16TH IT SAYS .43, IS THAT RIGHT?
A.: CORRECT.
Q.: WHAT DOES THAT MEAN?
A.: IT MEANS THE WIND WASN’T THE SAME EACH DAY, THAT YOU ARE GETTING DIFFERENT NUMBERS.
Q.: WELL, WHAT DOES .43 WIND VELOCITY MILES PER HOUR MEAN?
A.: WELL, IT’S LESS THAN A MILE AN HOUR.
Q.: IS THAT JUST BASED ON YOUR EXPERIENCE OUT THERE ON A SANTA ANA CONDITION? IS THAT ACCURATE?
A.: NO.
Q.: AND THEN WHEN WE LOOK DOWN TO THE 20TH AND THE 21ST AND THE 22ND, ALL THE WAY UP TO THE 28TH, THERE’S A SERIES OF ZEROS THERE UNDER THAT COLUMN, ISN’T THAT RIGHT?
A.: YES.
Q.: DO YOU KNOW WHAT TEMPERATURES BLOW FLIES GROW AT?
A.: NO.
MR. DUSEK: OBJECTION. NO FOUNDATION.
THE COURT: SUSTAINED.
BY MR. FELDMAN:
Q.: DIRECTING YOUR ATTENTION TO 170. YOU JUST INDICATED TO ME, DIDN’T YOU, THAT AT LEAST PORTIONS OF THAT CHART ARE NOT ACCURATE BETWEEN FEBRUARY THE 11TH AND FEBRUARY THE 28TH? CORRECT?
MR. DUSEK: OBJECTION. MISSTATES. IT’S ONLY THE WIND.
THE COURT: YES.
BE SPECIFIC.
BY MR. FELDMAN:
Q.: SPECIFICALLY DIRECTING YOUR ATTENTION TO THE WIND VELOCITY COLUMN ON THE EXHIBIT THAT MR. DUSEK SHOWED TO YOU, SIR, YOU JUST INDICATED THAT THERE’S A SERIES OF INACCURACIES THAT RUN BETWEEN FEBRUARY 11TH AND FEBRUARY 28TH, IS THAT RIGHT?
A.: THE WIND GAUGE WAS BROKEN, YES.
Q.: AND WITH REGARD TO THE WIND GAUGE, YOU TOLD US THAT THE WIND GAUGE GOT BROKEN WHEN A GOLF BALL HIT IT. IS THAT RIGHT?
A.: YES.
Q.: IS THE WIND GAUGE IN A DIFFERENT LOCATION THAN ANY OF THE OTHER COLLECTION INFORMATION THAT RELATES TO OBTAINING WEATHER INFORMATION?
A.: NO.
Q.: DO YOU KEEP HAND RECORDS OR ANY KIND OF RECORDS FOR YOUR OWN PROFESSIONAL PURPOSES TO INDICATE SPECIFICALLY IN THE MONTH OF FEBRUARY AND MORE SPECIFICALLY BETWEEN FEBRUARY 11TH AND FEBRUARY 28TH HOW MUCH TIME ELAPSES BETWEEN THE TIME YOU FORM THE OPINION PEOPLE CAN’T PLAY GOLF BECAUSE IT’S FROSTED OVER AND THE TIME YOU LET THEM ON THE GOLF COURSE?
A.: I DON’T UNDERSTAND THAT, SIR.
Q.: I’M ASKING DO YOU HAVE ANY RECORDS THAT WE CAN GET OUR HANDS ON OR THAT YOU MAY MAINTAIN THAT WOULD ALLOW YOU TO BE ABLE TO ACCURATELY TELL THE JURY HOW MUCH TIME WOULD ELAPSE BETWEEN THE TIME YOU MADE A DECISION THAT IT WAS TOO COLD TO GOLF AND THE TIME YOU SAID OKAY, IT’S ALL RIGHT TO GOLF.
A.: WHEN I WENT BACK INTO THE PRO SHOP AND I GAVE THEM A SPECIFIC TIME THAT THEY CAN LET PLAY OUT, IS THAT YOUR QUESTION, DO I HAVE RECORDS OF THAT?
Q.: OKAY.
A.: NO.
Q.: SO WHAT YOU JUST TOLD ME WAS IF YOU MAKE A DECISION THAT PEOPLE CAN’T GOLF, YOU HAVE TO TELL SOMEONE ELSE, THAT IS, SOMEONE IN THE PRO SHOP?
A.: BASICALLY WHAT HAPPENS IS IN THE MORNING I GO IN THE PRO SHOP, I TELL THEM WE HAVE FROST, AND I WILL STOP PLAY. OKAY? AND THEN AFTER THE FROST IS BROKEN, WE GO BACK IN THERE AND WE TELL THEM THAT, YOU KNOW, WE CAN LET PLAY OUT. BUT EACH DAY IS A DIFFERENT TIME. EACH DAY IS DIFFERENT. IT GOES FROM ANYWHERE BETWEEN 8:00 O’CLOCK AND 9:30.
Q.: OKAY.
I’M SORRY. 8:00 O’CLOCK IN THE MORNING AND 9:30 IN THE MORNING, IS THAT RIGHT?
A.: DEPENDS ON WHEN THE FROST BREAKS, YES.
Q.: OKAY.
AND THEN IS THERE A TIME THAT YOU STOP PEOPLE FROM GOLFING?
A.: FOR THE WHOLE DAY?
Q.: YES.
A.: NO.
Q.: OKAY.
SO IF IT’S RAINING OUT, THAT DOESN’T AFFECT WHETHER OR NOT PEOPLE ARE GOING TO STOP GOLFING, IS THAT RIGHT?
A.: I WOULD NOT STOP IT. IF IT’S RAINING REALLY HARD AND THEY CAN’T PUTT, THEY MIGHT STOP IT THEMSELVES.
Q.: OKAY.
BUT THAT’S NOT PART OF WHATEVER YOUR RULES ARE.
A.: NO.
Q.: DO YOU REMEMBER IT BEING REALLY HOT ON FEBRUARY THE 22ND?
A.: NO.
Q.: DIRECTING YOUR ATTENTION TO YOUR CHART, TAKE A LOOK AT FEBRUARY 22ND, WHERE IT SAYS MAXIMUM TEMP. AND FEBRUARY 23. IT’S ABOUT 86 AND 93, WASN’T IT?
A.: ON THE 22ND SAYS 85. 23RD IT SAYS 93.
Q.: ACTUALLY IT SAYS 85.62, DOESN’T IT?
A.: YES.
Q.: AND IT SAYS 93.60.
A.: CORRECT.
Q.: DOES LOOKING AT THE CHART NOW REFRESH YOUR MEMORY AS TO WHETHER OR NOT IT WAS HOT ON THOSE DAYS?
A.: YES. IT WAS HOT ON THOSE DAYS. DO I REMEMBER IF IT WAS HOT ON THOSE DAYS? NO.
Q.: OKAY.
DO YOU REMEMBER WHETHER OR NOT JUST AS A MATTER OF YOUR EXPERIENCE IN THE SINGING HILLS AREA WHEN THE HEAT IN FEBRUARY RUNS TO THOSE TEMPERATURES, DO THE SANTA ANA WINDS KICK UP?
MR. DUSEK: NO FOUNDATION, YOUR HONOR.
THE COURT: SUSTAINED.
BY MR. FELDMAN:
Q.: BASED ON YOUR PERSONAL EXPERIENCE, BASED ON YOUR I THINK FIFTEEN YEARS OR HOWEVER MANY YEARS YOU’VE BEEN THERE, WHEN IT HEATS UP IN FEBRUARY DO THE SANTA ANA WINDS COME UP?
MR. DUSEK: STILL NO FOUNDATION.
THE COURT: OVERRULED.
BASED ON YOUR EXPERIENCE, YOU CAN ANSWER.
THE WITNESS: IT’S — SANTA ANA WIND IS GOING TO DRIVE THE TEMPERATURE UP, BUT EL CAJON VALLEY COULD GET HOT WITHOUT THAT, TOO.
MR. FELDMAN: UNDERSTOOD.
/ / /
BY MR. FELDMAN:
Q.: I’M ASKING YOU — OKAY.
WITH REGARD TO THE SANTA ANA WINDS, WHEN THEY COME UP, IN WHICH DIRECTION DO THEY COME?
A.: COME FROM THE EAST.
Q.: ON 2-A AND B YOU TOLD ME THAT — I THINK YOU SAID SINGING HILLS IS UP TO THE WEST. IS THAT CORRECT? THAT’S WEST, IS THAT RIGHT, SIR?
A.: YES.
Q.: AND SO WHERE DO THE WINDS — COULD YOU JUST —
A.: WELL, THE WIND IS COMING FROM THE DESERT IN SANTA ANA, SO IT’S TRAVELING WEST.
Q.: IT’S TRAVELING WEST?
A.: COMING FROM EAST TO WEST, YES.
Q.: SO WHAT I AM — JUST FOR DESCRIPTION PURPOSES ON OUR CHART, IT’S COMING FROM BOTTOM TO TOP, IS THAT RIGHT?
A.: YES. PRETTY MUCH.
Q.: DO YOU GO FOR WALKS IN THE AREA?
MR. DUSEK: OBJECTION. IRRELEVANT.
THE COURT: OVERRULED.
THE WITNESS: YES.
BY MR. FELDMAN:
Q.: DO YOU GO FOR WALKS DOWN DEHESA ROAD?
A.: NO.
Q.: WHEN YOU IRRIGATE, HOW MUCH WATER DO YOU PUT INTO THE GROUND, IF YOU KNOW, OR IF YOU HAVE RECORDS THAT SHOW?
A.: DEPENDS ON THE DAY.
Q.: WELL, LET’S TALK BETWEEN FEBRUARY THE 11TH AND FEBRUARY THE 28TH. DO YOU HAVE A WAY TO TELL US HOW MUCH WATER YOU PUT DOWN?
A.: NOT FROM THIS SEAT.
Q.: OKAY.
IS THERE SOME OTHER DOCUMENT OR PIECE OF INFORMATION YOU CAN ACQUIRE THAT WOULD ALLOW YOU TO TELL THE JURY HOW MUCH WATER —
A.: I WOULD HAVE TO REMEMBER THE PERCENTAGE OF THIS E.T. THIS E.T. IS THREE-HUNDREDTHS OF AN INCH ON — LET’S SAY THE 11TH, THE E.T. OF THE 11TH WAS .03. THAT’S THREE-HUNDREDTHS OF AN INCH PER SQUARE FOOT. THERE’S ALSO IN THAT COMPUTER A PERCENTAGE OF THAT. DO I WANT TO PUT A HUNDRED PER CENT OF THAT OR THREE HUNDRED PER CENT OF THAT .03 PER CENT. I WOULD HAVE TO REMEMBER ALL THE WAY BACK THEN WHAT PER CENT I PUT OUT.
Q.: WHAT YOU’RE REALLY TELLING US, THOUGH, IS IT DOESN’T MATTER WHAT THE COMPUTERS ARE TELLING YOU, YOU NEED TO MAKE YOUR OWN DETERMINATION BASED ON YOUR PROFESSIONAL TRAINING AND EXPERIENCE TO DECIDE HOW MUCH WATER TO PUT THERE, RIGHT?
A.: CORRECT.
Q.: AND IF YOU MAKE A MISTAKE, IT COULD BE YOUR JOB, RIGHT?
A.: IN FEBRUARY A MISTAKE THAT I AM GOING TO MAKE IS NOT GOING TO HURT THE GRASS FOR ONE DAY. IF I MAKE A MISTAKE IN AUGUST, YES.
Q.: THE POINT IS YOU’RE — YOU TAKE PRIDE IN YOUR WORK, —
A.: YES.
Q.: — RIGHT?
YOU TRY AND DO IT RIGHT ALL THE TIME, RIGHT?
A.: YES.
Q.: AND YOU EXERCISE YOUR HUMAN JUDGMENT AS OPPOSED TO YOUR RELIANCE ON COMPUTERS, FOR INSTANCE.
A.: YES.
Q.: BECAUSE YOU REALIZE THE DETERMINATION OF CERTAIN PRECIPITATION, WATER ISSUES YOU NEED TO MAKE THAT DETERMINATION, YOU JUST CAN’T RELY ON MACHINES, CORRECT?
A.: YES.
Q.: ESPECIALLY MACHINES THAT TAKE GOLF BALLS FROM TIME TO TIME, CORRECT?
A.: YES.
(DISCUSSION OFF THE RECORD AMONG THE DEFENSE.)
MR. FELDMAN: IF I COULD JUST HAVE A MOMENT, PLEASE.
THE COURT: SURE.
(DISCUSSION OFF THE RECORD BETWEEN MR. FELDMAN
AND MR. BOYCE.)
BY MR. FELDMAN:
Q.: WITH REGARD TO THE SANTA ANAS OR WITH REGARD TO THE WINDS, SIR, DO THE WINDS HEAT UP THE GREENS? DO THEY HEAT UP THE AREA OF YOUR GOLF COURSE?
A.: I WOULDN’T CALL IT HEAT UP. THEY DRY UP.
Q.: DOES THAT TEND TO WARM IT UP SOME?
A.: WELL, IF THEY DRY IT UP, IF THEY DRY IT UP, I MEAN THE WATER THAT’S THERE FOR THE PLANT TO TAKE IN IS DISAPPEARING FASTER THAN NORMAL.
Q.: I GUESS BASICALLY WHAT YOU TRY AND DO AS PART OF YOUR JOB IS TO CREATE A MICRO ENVIRONMENT THAT’S SPECIFIC TO HELP PEOPLE THAT WANT TO GO GOLFING, ISN’T THAT RIGHT?
A.: NO. I’M THERE TO GROW GRASS FOR THEM TO GO GOLFING, BUT. . .
(DISCUSSION OFF THE RECORD BETWEEN MR. FELDMAN
AND MR. BOYCE.)
BY MR. FELDMAN:
Q.: I’M SORRY. WITH REGARD TO THE CLIMATIC DATA THAT YOU COLLECTED, YOU DON’T GET HOURLY TEMPERATURES.
MR. DUSEK: OBJECTION. ASKED AND ANSWERED.
THE COURT: OVERRULED.
YOU CAN ANSWER.
THE WITNESS: YES.
BY MR. FELDMAN:
Q.: AND WHERE ARE THE HOURLY TEMPERATURES REFLECTED, SIR?
A.: IT WASN’T PRINTED OUT.
Q.: THEY DIDN’T ASK YOU FOR THOSE?
A.: THEY ASKED ME FOR MINIMUM AND MAXIMUM FOR THE DAY.
Q.: AND WHEN WERE YOU CONTACTED AND ASKED ABOUT THIS?
A.: OH, I DON’T KNOW. A WEEK AGO.
Q.: FIRST TIME ANYBODY CONTACTED YOU WAS ABOUT A WEEK AGO ON THIS?
A.: YEAH.
Q.: DO YOU REMEMBER WHO CONTACTED YOU?
A.: INVESTIGATOR NAMED RICHARD.
Q.: COOKSEY RING A BELL?
A.: NO.
Q.: OKAY.
DO YOU RECALL WHETHER YOU’VE SPOKEN WITH BEFORE YOU CAME TO COURT ANY OF THE LAWYERS ON THE CASE?
A.: WHAT WAS THAT?
Q.: DID YOU SPEAK TO ANY OF THE LAWYERS ON THE CASE?
A.: YES.
Q.: WHO?
A.: I SPOKE TO JEFF THIS MORNING.
Q.: AND YOU MET HIM IN HIS OFFICE THIS MORNING?
A.: YES.
Q.: AND HE DISCUSSED WITH YOU THE SUBJECT AREAS OF YOUR TESTIMONY?
A.: YES.
MR. FELDMAN: I HAVE NO FURTHER QUESTIONS AT THIS TIME.
THE COURT: ANYTHING FURTHER?

REDIRECT EXAMINATION
BY MR. DUSEK:
Q.: IN FACT I EVEN CAME OUT TO THE GOLF COURSE YESTERDAY, DIDN’T I?
A.: YES, YOU DID.
Q.: HOW HOT WAS IT OUT THERE YESTERDAY?
A.: (NO RESPONSE.)
Q.: DID WE GIVE YOU A SUBPOENA YESTERDAY?
A.: YES.
Q.: AND WE ALSO ASKED FOR THE DATA REGARDING THE FROST ON THE GREENS?
A.: YES.
Q.: YOU PROVIDED IT TO US AT THAT TIME?
A.: YES.
Q.: I WOULD LIKE YOU TO CONVERT THE FROST DAYS ONTO THE EXHIBIT 169, THE CALENDAR WE HAVE FOR FEBRUARY. AND BASICALLY WHAT I WOULD LIKE YOU TO DO IS TO TAKE THIS BLUE FELT PEN AND PUT AN F ON EACH OF THE DAYS IN FEBRUARY WHERE THE GREENS WERE FROSTED. COULD YOU DO THAT FOR US?
A.: (THE WITNESS COMPLIED.)
Q.: THANK YOU, SIR. YOU’VE DONE THAT.
JUST FOR CLARIFICATION, AT SINGING HILLS, HOW MANY EIGHTEEN-HOLE GOLF COURSES ARE THERE?
A.: THREE.
Q.: SO IF YOU GO TO THAT ONE LOCATION, YOU CAN PLAY ONE OF THREE COURSES?
A.: YES.
Q.: AND THOSE ARE THE THREE COURSES YOU ARE RESPONSIBLE FOR?
A.: CORRECT.
Q.: THE OTHER COURSES YOU REFERRED TO AS COTTONWOOD, STEEL CANYON, AND RANCHO SAN DIEGO ARE DIFFERENT LOCATIONS?
A.: RANCHO SAN DIEGO IS COTTONWOOD.
Q.: ALL RIGHT.
SO STEEL CANYON AND COTTONWOOD ARE DIFFERENT LOCATIONS?
A.: CORRECT.
Q.: AND I THINK YOU TOLD US ABOUT HOW FAR AWAY THEY WERE. ARE THERE ANY HILLS BETWEEN YOU AND THOSE OTHER COURSES?
A.: YES.
Q.: IN THE SANTA ANA CONDITIONS, DOES THAT HAVE AN EFFECT ON THE VEGETATION AND THE GROWTH ON YOUR GOLF COURSE?
A.: YES.
Q.: HOW SO?
A.: DRIES EVERYTHING UP.
Q.: THAT’S NOTICEABLE?
A.: IT CAN BE.
Q.: AND WE TALK ABOUT OR YOU TALKED ABOUT THE SANTA ANA WINDS COMING FROM THE EAST. DO THEY APPEAR TO BE STRONGER OR WEAKER THAN THE ORDINARY WINDS THAT YOU GET COMING OFF THE COAST?
MR. FELDMAN: VAGUE AND FOUNDATION.
THE COURT: OVERRULED.
YOU CAN ANSWER THAT.
THE WITNESS: YES.
BY MR. DUSEK:
Q.: HOW SO?
A.: WELL, IT DEPENDS. I MEAN THEY ARE NOT ALWAYS STRONG. SANTA ANAS ARE NOT ALWAYS STRONG, BUT THEY CAN BE.
Q.: ALL RIGHT.
AND YOU MENTIONED THE WIND DETECTOR WAS BROKEN BY A GOLF BALL.
A.: YES.
Q.: HOW DID YOU KNOW THAT?
A.: BECAUSE IT WAS BROKEN PHYSICALLY.
Q.: YOU COULD SEE IT?
A.: YES.
Q.: DID THE WEATHER STATION STILL CONTINUE TO GIVE YOU THE HIGHS AND LOWS AND THE OTHER DATA?
A.: YEAH. THE OTHER COMPONENTS ON IT WEREN’T AFFECTED.
Q.: ALL RIGHT.
AND FOR THE TIMING OF THE HIGHS AND LOWS, WHEN YOU GO IN TO WORK IN THE MORNING AND YOU LOOK AT YOUR COMPUTER FOR THE WEATHER DATA THAT YOU HAVE HERE IN FRONT OF YOU, WHAT’S THE MOST RECENT READING YOU WERE GOING TO GET IN THE MORNING?
A.: WELL, I GET THAT VERY MINUTE IF I WANT TO ACTUALLY BRING THE WEATHER STATION UP.
Q.: ALL RIGHT.
AND IF YOU’RE LOOKING FOR THE LOWS OR HIGHS FROM THE PREVIOUS TWENTY-FOUR HOURS, ARE YOU ABLE TO GET THAT?
A.: I CAN HAVE IT HOURLY.
Q.: ALL RIGHT.
AND THE DATA THAT YOU BROUGHT US HERE TODAY IS SIMPLY THE HIGHS AND LOWS FOR EACH OF THOSE DATES?
A.: CORRECT.
Q.: ALONG WITH THE OTHER DATA?
A.: CORRECT.
MR. DUSEK: THANK YOU, SIR.
THE COURT: ALL RIGHT.
ANYTHING FURTHER?

RECROSS-EXAMINATION
BY MR. FELDMAN:
Q.: WHAT’S THE ELEVATION OF THE WEATHER STATION?
A.: IT’S ABOUT NINE FEET HIGH.
Q.: NINE FEET HIGH?
A.: SITS UP ABOUT NINE FEET. I’M NOT SURE WHAT YOUR QUESTION IS.
Q.: OKAY.
SO THE WEATHER STATION IS ABOUT NINE FEET OFF THE GROUND, IS THAT RIGHT?
A.: YES.
Q.: BUT WHAT’S THE ELEVATION, YOU KNOW, HOW MANY FEET ABOVE SEA LEVEL?
A.: I DON’T KNOW.
Q.: THAT’S NOT PROVIDED AS PART OF THE INFORMATION?
A.: NO.
Q.: THE DISTRICT ATTORNEY’S OFFICE DIDN’T ASK YOU FOR THE ELEVATION?
A.: NO.
Q.: DID THEY ASK YOU QUESTIONS CONCERNING WHETHER OR NOT THERE WERE MOUNTAINS?
MR. DUSEK: OBJECTION. RELEVANCY.
THE COURT: OVERRULED.
YOU MAY ANSWER.
BY MR. FELDMAN:
Q.: DID THEY ASK YOU QUESTIONS WHETHER THERE WERE MOUNTAINS IN THE AREA?
A.: NO.
Q.: CAN YOU PLEASE, AS LONG AS WE’RE HAVING YOU WRITE ON THE CHART, LET’S START WORKING BACKWARDS FROM FEBRUARY THE 28TH. CAN YOU WRITE, JUST INDICATE WHAT WAS THE HIGH ON FEBRUARY THE 28TH AND WHAT WAS THE LOW?
A.: YOU WANT ME TO PUT THAT ON THERE?
Q.: WELL, JUST A MINUTE. LET’S TRY THIS.
MR. FELDMAN: IS THIS PREVIOUSLY MARKED, COUNSEL? IT SAYS 186. DID YOU MOVE IT?
BY MR. FELDMAN:
Q.: LET ME JUST ASK YOU THIS QUESTION. YOU PUT F’S WHERE MR. DUSEK ASKED YOU ABOUT WHERE IT FROSTED, BUT YOU BASE THAT CONCLUSION ONLY ON THE MAXIMUM/MINIMUM TEMPERATURES, IS THAT RIGHT?
A.: NO. I BASE THAT ON THE — I WENT IN THE MORNING IN THE PRO SHOP, AND I TOLD THEM THERE WAS FROST.
Q.: OKAY.
AND YOU WERE ABLE TO RETRIEVE THAT FROM THE PRO SHOP, RIGHT?
A.: NO. I KEPT THAT ON MY OWN COMPUTER.
Q.: OKAY.
SO YOU KNOW THAT THERE WASN’T ANY FROST FROM THE 10TH OF FEBRUARY TO THE 28TH OF FEBRUARY BECAUSE YOU DON’T HAVE RECORDS.
A.: NO. THE 11TH WE HAD FROST.
Q.: OTHER THAN THE 11TH, SORRY.
A.: CORRECT.
Q.: AND WHAT WAS THE HIGH TEMPERATURE ON THE 11TH OF FEBRUARY
A.: 73.02.
Q.: SIR, THE HIGH ON THE 11TH OF FEBRUARY WAS 73.02. AND WHAT WAS THE LOW?
A.: 34.90.
Q.: HOW MUCH TIME — DO YOU HAVE ANY WAY OF TELLING US HOW MUCH TIME ELAPSED BETWEEN THE TIME IT STOPPED BEING FROSTED AND PEOPLE COULD PLAY?
A.: THE EXACT TIME ON THAT DATE?
Q.: GENERALLY, BASED ON YOUR TRAINING AND EXPERIENCE, YOUR EXPERIENCE THERE.
A.: I SAID FROM 8:00 O’CLOCK, IT’S USUALLY FROM 8:00 O’CLOCK ‘TIL 9:30.
Q.: SO BY 9:30 THE FROST IS NO LONGER AN ISSUE BECAUSE IT HEATS UP, RIGHT?
A.: CORRECT.
Q.: AND THIS DEHESA VALLEY GETS HOT OUT THERE, RIGHT?
A.: YES.
Q.: IS THAT ONE OF THE ATTRACTIONS?
A.: NO. I DON’T THINK SO.
Q.: AND, AGAIN, I’M SORRY, JUST WITH REGARD TO THE 11TH WHERE I HAD YOU WRITE 34 — I THINK IT SAYS 34.9.
A.: M-HM. YES.
Q.: WHAT TIME OF DAY WAS THAT OR DAY, MORNING, NIGHT, WHATEVER?
MR. DUSEK: OBJECTION. ASKED AND ANSWERED.
THE COURT: SUSTAINED.
MR. FELDMAN: NO FURTHER QUESTIONS.
THE COURT: ANYTHING FURTHER?
MR. DUSEK: NO, THANK YOU.
THE COURT: ALL RIGHT.
MR. RAYBOULD, THANK YOU FOR COMING IN. YOU’RE FREE TO LEAVE THESE PROCEEDINGS.
PLEASE, HOWEVER, REMEMBER NOT TO DISCUSS YOUR TESTIMONY WITH ANYONE ‘TIL THE MATTER IS CONCLUDED.
WOULD YOU HAND THAT EXHIBIT TO MR. DUSEK ON YOUR WAY BY. THANK YOU.
(THE WITNESS WAS EXCUSED.)
THE COURT: ALL RIGHT. MR. DUSEK.
MR. DUSEK: MARION PASAS.
THE COURT: ALL RIGHT. MISS PASAS.

MARION LOUISE PASAS,
CALLED AS A WITNESS BY THE PLAINTIFF, HAVING BEEN DULY SWORN, TESTIFIED AS FOLLOWS:
THE CLERK: PLEASE STATE YOUR NAME AND SPELL IT FOR THE RECORD.
THE WITNESS: MARION LOUISE PASAS. P-A-S-A-S.

DIRECT EXAMINATION
BY MR. DUSEK:
Q.: GOOD MORNING, MISS PASAS.
A.: GOOD MORNING.
Q.: HOW ARE YOU EMPLOYED?
A.: I’M A LICENSED PRIVATE INVESTIGATOR.
Q.: HOW LONG HAVE YOU BEEN A LICENSED PRIVATE INVESTIGATOR?
A.: SINCE 1982.
Q.: AND ARE YOU WORKING ON THIS CASE?
A.: YES.
Q.: AS PART OF YOUR ASSIGNMENT WERE YOU ASKED TO INTERVIEW A HEATHER MACK?
A.: YES.
Q.: DID YOU INTERVIEW HER ON TAPE?
A.: NO.
Q.: WHY NOT?
A.: I DON’T ALWAYS INTERVIEW ON TAPE.
Q.: DID YOU INTERVIEW ANYBODY ON TAPE IN THIS CASE?
A.: NO.
Q.: WHY NOT?
A.: I INTERVIEWED ONLY ON TAPE WHEN REQUESTED BY THE ATTORNEYS.
Q.: BUT YOU ARE A PRIVATE — LICENSED PRIVATE INVESTIGATOR, AREN’T YOU?
A.: YES.
Q.: HAVE YOU BEEN TRAINED TO LEARN THAT BY TAPING THE INTERVIEWS YOU GET THE EXACT WORDS OF WHAT THE WITNESS SAYS?
A.: I WORK ONLY WITH ATTORNEYS, AND I TAKE INSTRUCTIONS FROM THEM. I TAPE-RECORD INTERVIEWS THAT THEY REQUEST. AND UNDER MOST CIRCUMSTANCES WE DON’T TAPE-RECORD.
Q.: AND YOU ALWAYS WORK FOR THE DEFENSE, DON’T YOU?
A.: YES.
Q.: WHY WOULDN’T YOU WANT TO HAVE THE EXACT WORDS OF WHAT THE WITNESSES SAY?
MR. FELDMAN: ARGUMENTATIVE. ASSUMES FACTS NOT IN EVIDENCE.
THE COURT: OVERRULED. OVERRULED.
THE WITNESS: I DIDN’T SAY I DIDN’T WANT THE EXACT WORDS.
BY MR. DUSEK:
Q.: IF YOU TAPE THEM, YOU GET THE EXACT WORDS THAT THEY SAY, DON’T YOU?
A.: YES.
MR. FELDMAN: ARGUMENTATIVE. OBJECTION.
THE COURT: SUSTAINED.
THE JURY IS TO DISREGARD THE LAST ANSWER.
MOVE ON, MR. DUSEK.
BY MR. DUSEK:
Q.: DID YOU INTERVIEW MISS MACK IN PERSON?
A.: YES.
Q.: WHERE? I DON’T NEED THE ADDRESS, BUT JUST GENERALLY WHERE?
A.: WELL, I INTERVIEWED HER FIRST — NO. I INTERVIEWED HER BY TELEPHONE, AND THEN SHE CAME TO THE OFFICE.
Q.: SO YOU INTERVIEWED HER TWICE?
A.: WITH THE ATTORNEYS IT WAS.
Q.: WAS THAT SIMPLY IN PREPARATION FOR TRIAL?
A.: YES. YES.
Q.: I’M TALKING ABOUT THE INTERVIEW THAT I ASSUME YOU WROTE A REPORT REGARDING THE INTERVIEW.
A.: YES.
Q.: DID YOU DO A FACE-TO-FACE INTERVIEW ON THAT?
A.: THAT WAS BY TELEPHONE.
Q.: WHY DIDN’T YOU GO FACE TO FACE WITH HER?
A.: THERE WAS NOT TIME.
Q.: WHEN DID YOU INTERVIEW HER?
A.: I DON’T — I DON’T RECALL THE DATE AT THIS TIME. I WOULD HAVE TO LOOK AT THE REPORT.
Q.: PULL IT OUT, PLEASE, IF YOU WOULD.
A.: I DON’T HAVE IT WITH ME.
Q.: YOU DIDN’T BRING IT WITH YOU?
A.: NO. DO YOU HAVE A COPY?
Q.: DID YOU KNOW WHEN YOU WERE GOING TO TESTIFY?
A.: YES.
MR. FELDMAN: YOUR HONOR, ARGUMENTATIVE.
THE COURT: OVERRULED.
BY MR. DUSEK:
Q.: AND DID YOU KNOW WHAT YOU WERE GOING TO TESTIFY ABOUT?
A.: YES.
Q.: IS THERE A REASON YOU DIDN’T BRING THE REPORT?
A.: I DIDN’T THINK THAT I WOULD NEED IT.
Q.: WHAT DAY DID YOU INTERVIEW HER?
A.: I DON’T KNOW.
Q.: DID YOU THINK I MIGHT ASK YOU WHAT DAY YOU INTERVIEWED HER?
MR. FELDMAN: ARGUMENTATIVE.
THE COURT: OVERRULED.
THE WITNESS: I PRESUMED THAT YOU HAD THE REPORT AND KNEW THE DATE.
BY MR. DUSEK:
Q.: YOU ARE THE WITNESS, CORRECT?
MR. BOYCE: ARGUMENTATIVE, YOUR HONOR.
THE COURT: SUSTAINED. SUSTAINED.
BY MR. DUSEK:
Q.: DID YOU INTERVIEW HER REGARDING WHAT?
A.: REGARDING ANY OBSERVATIONS SHE MAY HAVE MADE WITH REGARD TO THIS CASE, THE MOTOR HOME OR MR. WESTERFIELD COMING TO CORONADO CAYS.
Q.: AND SHE TOLD YOU AT THAT POINT THAT SHE HAD SEEN MR. WESTERFIELD AT A TIME, DIDN’T SHE?
A.: SHE SAID SHE WASN’T SURE, BUT SHE THOUGHT IT MIGHT BE GETTING DARK.
Q.: WELL, YOU TRIED TO PIN HER DOWN, DIDN’T YOU?
A.: I DID TRY TO GET HER TO REMEMBER WHEN IT WAS, AND SHE SAID SHE WASN’T SURE.
Q.: HOW DID YOU TRY TO GET HER TO REMEMBER WHAT IT WAS? WHAT DID YOU TELL HER?
A.: I DIDN’T TELL HER ANYTHING.
Q.: WHAT DID YOU SAY TO HER?
A.: I JUST ASKED HER IF SHE COULD REMEMBER IF THERE WAS ANY WAY SHE COULD REMEMBER WHAT TIME IT WAS, IF THERE WAS ANY RECORDS. SHE SAID NO.
Q.: WELL, SHE TOLD YOU THAT SHE THOUGHT IT WAS GETTING DARK, CORRECT, WHEN SHE SAW WHAT SHE THOUGHT WAS MR. WESTERFIELD?
A.: YES.
Q.: AND YOU KNEW WHAT TIME DARK WAS IN FEBRUARY, DIDN’T YOU?
A.: I DIDN’T KNOW THE EXACT TIME, NO.
Q.: WELL, AS A LICENSED INVESTIGATOR, DID YOU CHECK TO SEE WHAT TIME DARK WAS, SUNSET WAS, IN FEBRUARY?
A.: NOT AT THAT TIME, NO.
Q.: HAVE YOU SINCE?
A.: NO. I HEARD IT HERE IN COURT.
Q.: SO YOU ARE AWARE THAT SUNSET WAS APPROXIMATELY 5:24 ON FEBRUARY 4TH OF THIS YEAR.
A.: I WOULD HAVE TO GET MY GLASSES TO READ THE PAPER, BUT I WILL TAKE YOUR WORD FOR IT.
Q.: DID YOU BRING YOUR GLASSES?
A.: YES.
Q.: (EYEGLASSES HANDED TO THE WITNESS BY MR. DUSEK.)
A.: THANK YOU.
THE "SAN DIEGO UNION" FOR MONDAY, FEBRUARY THE 4TH, INDICATES THAT SUNSET WAS AT 5:24 P.M.
Q.: SO SHE WAS TELLING YOU THAT SHE SAW WHO SHE THOUGHT WAS MR. WESTERFIELD AS IT WAS GETTING DARK THAT DAY.
A.: SHE SAID SHE WAS NOT SURE. SHE SAID SHE THOUGHT IT MIGHT HAVE BEEN GETTING DARK.
Q.: ALL RIGHT.
AND SHE DIDN’T SAY IT WAS ANY EARLIER THAN GETTING DARK, DID SHE?
A.: ANY EARLIER?
Q.: ANY EARLIER THAN —
A.: NO.
Q.: AND SHE DIDN’T SAY IT WAS ANY LATER THAT DAY.
A.: SHE SIMPLY SAID SHE WASN’T SURE.
Q.: YOU ASKED HER FOR HER BEST RECOLLECTION OF WHAT TIME IT WAS, DIDN’T YOU?
A.: YES, I DID.
Q.: AND WERE YOU AWARE AT THE TIME OF WHAT MR. WESTERFIELD HAD SAID REGARDING WHEN HE WAS AT THE SILVER STRAND ON TAPE?
A.: YES.
Q.: DID YOU ATTEMPT TO CORRELATE THOSE TWO TIMES WITH HER TO SEE IF SHE WAS EXACTLY SURE IT WAS MR. WESTERFIELD BASED UPON HER TIMES?
MR. FELDMAN: EXCUSE ME. OBJECTION. PRIVILEGED.
THE COURT: OVERRULED.
MR. FELDMAN: YOUR HONOR, I WOULD LIKE A SIDEBAR ON THE ISSUE OF THE SCOPE OF THE INQUIRY.
THE COURT: ALL RIGHT. YOU’RE WELCOME TO IT.
BOB.
MR. FELDMAN: THANK YOU.
(SIDEBAR DISCUSSION, OUT OF THE HEARING OF THE JURY,
AS FOLLOWS:

(PROCEEDINGS NOT PART OF PUBLIC RECORD.)

(PROCEEDINGS NOT PART OF PUBLIC RECORD.)
(END OF SIDEBAR DISCUSSION.)
BY MR. DUSEK:
Q.: AFTER YOU SPOKE WITH HER AND SHE GAVE YOU THE ABOUT DARK TIME OR WHEN IT WAS ABOUT GETTING DARK, DID YOU SPEAK WITH HER ABOUT THE FACT THAT MR. WESTERFIELD HAD SAID ON TAPE THAT HE WAS THERE SOME TIME AT 7:15, 7:30 TIME?
A.: NO, I DID NOT.
Q.: YOU DID NOT SAY ANYTHING AT ALL TO TRY TO CORRECT HER OR CHANGE HER AT THAT POINT?
A.: NO.
Q.: BUT THERE’S NO TAPE RECORDING OF THAT INTERVIEW.
A.: NO.
MR. FELDMAN: ASKED AND ANSWERED.
THE COURT: SUSTAINED.
BY MR. DUSEK:
Q.: HOW LONG WAS THAT INTERVIEW?
A.: OH, PERHAPS A HALF AN HOUR.
(DISCUSSION OFF THE RECORD BETWEEN MR. DUSEK
AND MR. CLARKE.)
BY MR. DUSEK:
Q.: DID YOU MAKE ANY NOTES OF THAT INTERVIEW?
A.: I DID AT THE TIME, YES.
Q.: AND WHERE ARE THEY?
A.: AFTER I TYPE UP A REPORT, I DISCARD THE NOTES.
Q.: HOW LONG FROM THIS HALF-HOUR INTERVIEW, HOW LONG — HOW MANY PAGES OF NOTES DID YOU HAVE?
A.: PERHAPS TWO.
Q.: AND YOU TYPED ONE PAGE FOR YOUR INTERVIEW?
A.: YES.
Q.: FINAL PRODUCT.
WHEN DID YOU GET RID OF THE NOTES?
A.: RIGHT AFTER I TYPED THE REPORT.
Q.: WHOSE DECISION WAS IT TO GET RID OF THEM?
A.: THAT’S MY COMMON PRACTICE, HAS BEEN ALWAYS.
Q.: DID YOU ASK HEATHER MACK WHERE SHE SAW THIS MOTOR HOME COMING FROM THAT SHE SAID CAME INTO THE STRAND?
A.: YES.
Q.: WHERE DID SHE SAY IT WAS COMING FROM?
A.: SHE SAID IT WAS COMING FROM THE SOUTH.
Q.: FROM THE IMPERIAL BEACH AREA?
MR. BOYCE: OBJECTION. HEARSAY. NOT INCONSISTENT, YOUR HONOR.
THE COURT: OVERRULED.
BY MR. DUSEK:
Q.: FROM THE IMPERIAL BEACH AREA?
A.: SHE SIMPLY SAID IT WAS COMING FROM THE SOUTH AND TURNED IN FROM THE SOUTH.
Q.: AS AN INVESTIGATOR, YOU ARE AWARE THAT IMPERIAL BEACH IS TO THE SOUTH.
A.: YES. I’M AWARE OF THAT.
Q.: HAVE YOU BEEN TO THE CAYS?
A.: YES.
Q.: AND DO YOU KNOW WHERE THE SILVER STRAND ENTRANCE IS?
A.: YES.
Q.: IT’S BASICALLY ACROSS 75 FROM THE ENTRANCE TO THE CAYS.
A.: YES.
Q.: AND THEN YOU GO TO THE NORTH ON THAT FRONTAGE ROAD TO GET TO THE ENTRANCE OF THE CAYS.
A.: ENTRANCE OF THE CAYS?
Q.: I’M SORRY. ENTRANCE OF THE SILVER STRAND.
A.: YES.
Q.: DID YOU SPEAK WITH HER ABOUT HOW IT WAS THAT SHE THINKS SHE SAW THIS WESTERFIELD MOTOR HOME COMING FROM THE SOUTH WHEN THE ENTRANCE TO THE STRAND IS ACROSS THE STREET AND TO THE NORTH?
A.: I WASN’T GIVING HER INFORMATION. I DON’T GIVE INFORMATION. I’M ASKING HER INFORMATION. SO MY QUESTIONS TO HER WERE WHERE DID SHE SEE IT COMING FROM. I DIDN’T GIVE HER INFORMATION ABOUT —
Q.: AND WHEN SHE GAVE YOU THAT INFORMATION, DID YOU ASK HER IF SHE WAS SURE THAT IT WAS COMING FROM THE SOUTH?
A.: YES.
Q.: WHAT DID SHE SAY?
A.: SHE SAID THAT THAT’S WHAT HER MEMORY WAS.
MR. DUSEK: THANK YOU, MA’AM.
THE COURT: ALL RIGHT.
ANY CROSS-EXAMINATION?

CROSS-EXAMINATION
BY MR. FELDMAN:
Q.: JUST A — YOU ALSO WORKED AS A PROBATION OFFICER, DIDN’T YOU, BEFORE YOU WERE A LICENSED PRIVATE INVESTIGATOR?
A.: YES. FOR ELEVEN YEARS.
Q.: YOU DON’T TRY AND CHANGE INFORMATION; YOUR JOB IS TO GATHER INFORMATION, ISN’T IT?
A.: THAT’S CORRECT.
MR. FELDMAN: NOTHING FURTHER.
THE COURT: ALL RIGHT.
MA’AM, THANK YOU VERY MUCH. YOU MAY RESUME YOUR SEAT AT COUNSEL TABLE.
IF YOU WOULD HAND THAT TO MR. DUSEK ON YOUR WAY BY.
(THE WITNESS WAS EXCUSED.)
THE COURT: ALL RIGHT. COUNSEL, PROBABLY CLOSE ENOUGH TO TAKE THE MORNING BREAK.
LADIES AND GENTLEMEN, PLEASE REMEMBER THE ADMONITION OF THE COURT NOT TO DISCUSS ANY OF THE EVIDENCE OR TESTIMONY AMONG YOURSELVES OR WITH OTHERS NOR FORM OR EXPRESS ANY OPINIONS ON THE CASE UNTIL IT IS SUBMITTED TO YOU FOR DECISION.
PLEASE BE OUTSIDE THE DOOR AT A QUARTER TO 11:00. 10:45, PLEASE.
(RECESS, 10:29 O’CLOCK, A.M., TO 10:45 O’CLOCK, A.M.)

24072 - July 24th 2002 -Transcript of David Westerfield Trial Day 22 - morning 2
23071 - July 23th 2002 -Transcript of David Westerfield Trial Day 21 - morning