SAN DIEGO, CALIFORNIA, TUESDAY, SEPTEMBER 3, 2002, (morning 2)
Penalty phase September 3rd 2002 – 2
Wesley Hill (met Westerfield in 1977), Diane Irene Hill (Westley Hill’s wife), William Townsend (consultant for the medical industry, met Westerfield in 1985), Alden Miller (considered Westerfield as part of family), Kathleen Miller (Alden Miller’s wife)
1 THE COURT: WELCOME BACK, LADIES AND GENTLEMEN.
2 HOPEFULLY THE EMERGENCY WARNING SYSTEM WORKED OKAY.
3 ALL RIGHT. MR. BOYCE.
4 MR. BOYCE: THANK YOU, YOUR HONOR.
5 WE CALL WESLEY HILL.
6
7 -WESLEY HILL,
+
8 DEFENDANT’S WITNESS, HAVING BEEN SWORN, TESTIFIED AS FOLLOWS:
9
10 THE COURT: PLEASE HAVE A SEAT, SIR.
11 THE CLERK: SIR, WOULD YOU PLEASE STATE YOUR NAME AND
12 SPELL IT FOR THE RECORD?
13 THE WITNESS: MY NAME IS WESLEY HILL.
14 THE COURT: PLEASE SPELL IT.
15 THE WITNESS: OH, SPELL IT. W-E-S-L-E-Y, AND H-I-L-L.
16 THE COURT: THANK YOU.
17
18 DIRECT EXAMINATION
+
19 BY MR. BOYCE:
20 Q.:GOOD MORNING, MR. HILL.
21 A.:GOOD MORNING.
22 Q.:WHAT IS YOUR OCCUPATION?
23 A.:I’M A — ACTUALLY, RIGHT NOW I’M WORKING PART-TIME
24 AS A JANITOR FOR THE CHURCH AND THEN PART-TIME FOR THE — THE
25 GAS COMPANY IN SALT LAKE.
26 Q.:DO YOU KNOW A PERSON BY THE NAME OF DAVID
27 WESTERFIELD?
28 A.:YES, I DO.
10282
1 Q.:DO YOU SEE HIM HERE IN COURT?
2 A.:YES, I DO.
3 Q.:WHERE IS HE?
4 A.:HE’S RIGHT THERE.
5 Q.:ON THE CORNER HERE?
6 A.:UM-HMM. 7 Q.:YOU HAVE TO ANSWER YES OR NO BECAUSE THE REPORTER
8 CAN’T TAKE DOWN NODS.
9 A.:YES. OKAY.
10 Q.:YOU’VE GOT TO WAIT FOR ME TO QUIT TALKING, TOO.
11 YOU SAY YOU LIVE IN SALT LAKE, IS THAT UTAH?
12 A.:ACTUALLY WE LIVE IN HIGHLAND WHICH IS SOUTH OF SALT
13 LAKE ABOUT 30 MILES.
14 Q.:WHERE DID YOU MEET DAVID WESTERFIELD?
15 A.:I MET DAVID WHEN I WENT TO WORK AT HYDRO PRODUCTS 16 IN SAN DIEGO.
17 Q.:WHEN WAS THIS?
18 A.:1977.
19 Q.:WAS DAVID WORKING AT HYDRO PRODUCTS?
20 A.:YES. HE WAS WORKING THERE AT THE TIME. IN FACT, I 21 BELIEVE HE WAS UP FOR MY POSITION WHEN I GOT IT. 22 Q.:SO YOU STARTED WORKING AT HYDRO PRODUCTS AFTER 23 DAVID WESTERFIELD, CORRECT? 24 A.:YES, UH-HUH. 25 Q.:WHAT WAS YOUR JOB AT HYDRO PRODUCTS? 26 A.:I WAS A DRAFTING SUPERVISOR. 27 Q.:WHAT WAS MR. WESTERFIELD WORKING AS? 28 A.:HE WAS A DESIGNER.
10283
1 Q.:WHAT WAS YOUR RELATIONSHIP AT HYDRO PRODUCTS?
2 A.:VERY GOOD. WE HIT IT OFF RIGHT AWAY. HE WAS MORE 3 THAN HELPFUL TO HELP ME GET UP TO SPEED WHEN I FIRST GOT THERE.
4 Q.:WHAT WERE YOUR RESPECTIVE JOBS AT HYDRO PRODUCTS?
5 A.:I WAS IN CHARGE OF THE DESIGN GROUP. WE HAD 12
6 DESIGNERS. I HAD TO MAKE SURE THAT THE DRAWINGS WERE DONE 7 PROPERLY AND ON TIME.
8 Q.:AND MR. WESTERFIELD WAS ONE OF THOSE DESIGNERS?
9 A.:YES, HE WAS.
10 Q.:WHAT TYPE OF PROJECTS DID YOU WORK ON AT HYDRO 11 PRODUCTS?
12 A.:WE WORKED ON A SURVEILLANCE UNIT, UNDERWATER
13 SURVEILLANCE UNIT THAT COULD GO DOWN UNDERWATER AND INSPECT 14 EROSION PLATES ON OFF-SHORE DRILLING RIGS, AND IT COULD CUT
15 CABLES THAT WERE FOULED UP AND —
16 Q.:AND THIS WAS A DEVICE I BELIEVE WE’VE HEARD ABOUT 17 THAT WAS USED TO GO DOWN UNDERWATER INSTEAD OF DIVERS TO SAVE 18 DIVERS LIVES, IS THAT RIGHT?
19 A.:EXACTLY, EXACTLY.
20 Q.:DID YOU ALSO SEE DAVID OUTSIDE OF WORK? 21 A.:YES, QUITE A BIT. 22 Q.:UNDER WHAT CIRCUMSTANCES? 23 A.:WELL, WE’D GET TOGETHER — WE PLAYED ON THE SAME 24 SOFTBALL TEAM. WE’D GET TOGETHER AND WE — WE WERE TOGETHER A 25 LOT. WE JUST SEEMED TO HIT IT OFF VERY WELL. 26 Q.:DID YOU ALSO GO ON A YEARLY CANOE TRIP? 27 A.:YES, WE DID. 28 Q.:WHEN WAS THIS?
10284
1 A.:EVERY THANKSGIVING HOLIDAY.
2 Q.:FOR ABOUT HOW LONG?
3 A.:WE DID IT THREE YEARS.
4 Q.:WHERE WOULD YOU GO?
5 A.:I WAS — WE’D GO — I FORGET THE NAME OF THE
6 LANDING BUT IT’S OUT BY GLAMIS. YOU KEEP GOING TILL YOU GET TO 7 THE COLORADO RIVER, AND YOU GO FROM THERE DOWN TO THE DAM,
8 IMPERIAL DAM.
9 Q.:ABOUT HOW MANY MILES IS THAT?
10 A.:I THINK IT WAS 52.
11 Q.:HOW LONG WOULD THESE CANOE TRIPS LAST?
12 A.:THREE DAYS.
13 Q.:AND WHO WOULD GO ON THEM?
14 A.:BASICALLY FRIENDS AND PEOPLE WHO WORKED AT HYDRO
15 PRODUCTS.
16 Q.:ARE YOU MARRIED?
17 A.:YES, I AM.
18 Q.:AND YOUR WIFE IS — WHAT’S HER NAME?
19 A.:DIANE.
20 Q.:WOULD SHE GO ON THE CANOE TRIPS ALSO?
21 A.:YES, UH-HUH.
22 Q.:HOW ABOUT YOUR CHILDREN, DO YOU HAVE ANY CHILDREN?
23 A.:YES, UM-HMM.
24 Q.:WOULD ANY OF YOUR CHILDREN GO ON THE CANOE TRIP?
25 A.:YES, THEY WENT ALSO.
26 Q.:DID YOU KNOW JACKIE WESTERFIELD?
27 A.:YES, I DID.
28 Q.:HOW DID YOU KNOW HER?
10285
1 A.:I HIRED HER AS A DRAFTER WHEN SHE FIRST GOT
2 STARTED.
3 Q.:DO YOU RECALL WHEN MR. WESTERFIELD AND JACKIE GOT
4 MARRIED?
5 A.:YES, I DO. I WAS THE BEST MAN.
6 Q.:NOW, AT SOME POINT DID YOU LEAVE SAN DIEGO?
7 A.:YES. WE — WE MOVED TO SPOKANE, WASHINGTON.
8 Q.:WHEN WAS THAT?
9 A.:I BELIEVE IT WAS IN ‘7 — LATE ’79, EARLY ’80.
10 Q.:DID YOU REMAIN FRIENDS WITH DAVID WESTERFIELD?
11 A.:YES, WE DID.
12 Q.:DID YOU EVER RETURN TO SAN DIEGO TO VISIT HIM AFTER
13 YOU LEFT IN ’79?
14 A.:OH, QUITE OFTEN, QUITE OFTEN BECAUSE DIANE’S
15 PARENTS LIVE IN CARLSBAD, SO WE’D COME DOWN AT CHRISTMAS TIME
16 JUST ABOUT EVERY YEAR.
17 Q.:DID DAVID EVER VISIT YOU IN WASHINGTON?
18 A.:YES. WE RAISED A PIG FOR HIM AND HE’D COME UP AND
19 WE BUTCHERED IT — HAD IT BUTCHERED AND THEY PACKED IT IN ICE
20 AND — CHEST COOLER AND TOOK IT HOME.
21 Q.:YOU REMAINED FRIENDS WITH HIM FOR QUITE A WHILE?
22 A.:YES, STILL AM.
23 Q.:STILL CARE ABOUT WHAT HAPPENS TO HIM?
24 A.:YES, I DO.
25 MR. BOYCE: THANK YOU, MR. HILL.
26 THE WITNESS: UM-HMM.
27 THE COURT: ALL RIGHT.
28 CROSS-EXAMINATION.
10286
1 CROSS-EXAMINATION
+
2 BY MR. DUSEK:
3 Q.:YOUR WORKING RELATIONSHIP WITH HIM STARTED IN ’77?
4 A.:YES.
5 Q.:HOW LONG WERE YOU WORKING TOGETHER AT THE SAME
6 COMPANY?
7 A.:ABOUT A YEAR AND MAYBE A QUARTER, YEAR AND A HALF.
8 Q.:SO THAT GETS UP INTO THE ’78 OR SO?
9 A.:UM-HMM.
10 Q.:YOU HAVE TO ANSWER WITH WORDS.
11 A.:YES.
12 Q.:WHO LEFT, YOU OR HIM?
13 A.:I LEFT.
14 Q.:AND FROM THEN ON YOU DID NOT WORK WITH HIM AGAIN?
15 A.:NO, HUH-UH.
16 Q.:YOU WERE RESPONSIBLE FOR 12 DESIGNERS?
17 A.:YES.
18 Q.:AND HE WAS ONE OF THE 12?
19 A.:YES.
20 Q.:AND ALL 12 DID BASICALLY THE SAME THING?
21 A.:WELL, NO. THEY ALL WORKED ON DIFFERENT ASPECTS OF
22 THE PROJECT.
23 Q.:BUT THEY ALL DID DESIGNING TYPE WORK?
24 A.:YES.
25 Q.:WHO WOULD ASSIGN THEM TO THE PROJECT?
26 A.:I WOULD.
27 Q.:AND WHO WOULD PICK WHICH PROJECT THEY WERE TO WORK
28 ON?
10287
1 A.:I WOULD.
2 Q.:SO IT WASN’T LIKE ANY OF THESE 12 DESIGNERS WOULD
3 PICK A SPECIFIC PROJECT THAT THEY WANTED TO WORK ON?
4 A.:NO. THEY WOULD WORK ON WHAT I FELT THEY WOULD DO
5 BEST ON.
6 Q.:ALL RIGHT.
7 AND THIS UNDERWATER DEVICE IS ONE OF THE PROJECTS
8 THAT YOU PICKED FOR HIM TO WORK ON?
9 A.:YES.
10 Q.:ALL RIGHT.
11 AND THIS PROJECT BASICALLY WENT DOWN UNDER THE SEA
12 AND LOOKED AT FOUNDATIONS OR —
13 A.:NO. THEY WERE PLATES THAT WERE WELDED ONTO THE
14 PLATFORM THAT WOULD — THEY COULD JUDGE THE EROSION OF THE —
15 DETERIORATION OF THE PLATFORM BY THESE PLATES.
16 Q.:ALL RIGHT.
17 AND SOMEBODY CAME UP WITH A DESIGN FOR THAT
18 PROJECT?
19 A.:YES.
20 Q.:AND IF SOMETHING WAS BAD ABOUT THE PLATES DOWN
21 THERE THEN THE DIVERS WOULD HAVE TO GO DOWN AND FIX IT?
22 A.:SOME — WELL, NO. — WELL, YES. YES, THAT’S TRUE.
23 Q.:YOU CAME DOWN HERE, I ASSUME, FROM UTAH —
24 A.:UM-HMM.
25 Q.:— FOR THIS? IS THAT A YES?
26 A.:YES — SORRY.
27 Q.:WHEN DID YOU COME?
28 A.:NIGHT BEFORE LAST.
10288
1 Q.:EXCUSE ME?
2 A.:SATURDAY NIGHT.
3 Q.:HAVE YOU SEEN THE DEFENDANT SINCE YOU’VE BEEN HERE?
4 A.:YES.
5 Q.:DID YOU TALK WITH HIM ABOUT THIS CASE?
6 A.:NO.
7 Q.:WHY NOT?
8 A.:WE TALKED ABOUT EVERYTHING ELSE.
9 Q.:WHY NOT?
10 A.:BECAUSE I DIDN’T FEEL THAT IT WAS PROPER.
11 Q.:DID HE EXPRESS ANY REMORSE FOR WHAT HAD HAPPENED?
12 MR. BOYCE: OBJECTION, SCOPE.
13 THE COURT: SUSTAINED.
14 YOU NEED NOT ANSWER.
15
16 BY MR. DUSEK:
17 Q.:WHEN WAS THE LAST TIME YOU SAW HIM BEFORE YOUR TRIP
18 DOWN HERE?
19 A.:SHORTLY AFTER THE INCIDENT HAPPENED.
20 Q.:WE’RE TALKING ABOUT THE KIDNAPPING AND THE MURDER,
21 THAT’S THE INCIDENT?
22 A.:YES, YES.
23 Q.:HOW WAS IT THAT YOU SAW HIM?
24 A.:I — WE WERE DOWN HERE FOR ANOTHER REASON, ON
25 VACATION, AND WE HEARD, YOU KNOW, ABOUT IT AND I WAS CONCERNED
26 ABOUT IT SO WE STOPPED — I STOPPED AND TALKED TO HIM.
27 Q.:BEFORE THAT WHEN WAS THE LAST TIME YOU HAD SEEN
28 HIM?
10289
1 A.:JUST PRIOR TO MOVING TO SALT LAKE — OR SALT LAKE
2 AREA, HIGHLAND. IT WAS ABOUT A YEAR AND A HALF AGO.
3 Q.:ALL RIGHT.
4 YOU TALKED ABOUT KNOWING JACKIE?
5 A.:YES.
6 Q.:HIS WIFE?
7 A.:UM-HMM.
8 Q.:HOW MANY TIMES HAS HE BEEN MARRIED?
9 A.:TWICE.
10 Q.:DID YOU KNOW HIS FIRST WIFE?
11 A.:MET HER ONCE VERY BRIEFLY.
12 Q.:DO YOU KNOW WHEN THE DEFENDANT WAS DIVORCED FROM
13 JACKIE?
14 A.:YES.
15 Q.:WHEN WAS THAT?
16 A.:I DON’T KNOW. WELL, I DON’T KNOW EXACT DATE, BUT
17 SHORTLY AFTER WE MOVED BACK TO SAN DIEGO.
18 Q.:APPROXIMATELY?
19 A.:IN ’94.
20 Q.:DO YOU KNOW WHY SHE DIVORCED HIM?
21 A.:NO.
22 MR. BOYCE: OBJECTION, RELEVANCE, 352.
23 THE COURT: SUSTAINED. SUSTAINED.
24 MR. DUSEK: THANK YOU, MA’AM — OR THANK YOU, SIR.
25 THE COURT: ALL RIGHT.
26 ANYTHING FURTHER, MR. BOYCE?
27 MR. BOYCE: NO, YOUR HONOR.
28 THE COURT: ALL RIGHT. IS THIS WITNESS TO BE EXCUSED?
10290
1 MR. BOYCE: YES.
2 THE COURT: ALL RIGHT.
3 THANK YOU, SIR, FOR COMING IN. PLEASE DO NOT
4 DISCUSS YOUR TESTIMONY WITH ANYONE UNTIL THE MATTER’S CONCLUDED.
5 YOU’RE WELCOME TO LEAVE OR IF YOU SO DESIRE YOU CAN REMAIN IN
6 THE COURTROOM.
7 THE WITNESS: OKAY.
8 THE COURT: ALL RIGHT.
9 MR. BOYCE.
10 MR. BOYCE: WE CALL DIANE HILL.
11
12 -DIANE IRENE HILL,
+
13 DEFENDANT’S WITNESS, HAVING BEEN SWORN, TESTIFIED AS FOLLOWS:
14
15 THE COURT: PLEASE HAVE A SEAT, MA’AM.
16 THE CLERK: MA’AM, WOULD YOU PLEASE STATE YOUR NAME AND
17 SPELL IT FOR THE RECORD?
18 THE WITNESS: OKAY. IT’S DIANE, IRENE HILL, D-I-A-N-E,
19 I-R-E-N-E, HILL, H-I-L-L.
20
21
DIRECT EXAMINATION
+
22 BY MR. BOYCE:
23 Q.:GOOD MORNING, MS. HILL.
24 A.:HI.
25 Q.:ARE YOU MARRIED TO THE GENTLEMAN THAT JUST LEFT?
26 A.:YES, WESLEY, UM-HMM.
27 Q.:DO YOU KNOW A PERSON BY THE NAME OF DAVID
28 WESTERFIELD?
10291
1 A.:I DO.
2 Q.:DO YOU SEE HIM IN COURT TODAY?
3 A.:I DO.
4 Q.:THE GENTLEMAN AT THE CORNER OF THE TABLE?
5 A.:YES, UM-HMM.
6 Q.:HOW DO YOU KNOW DAVID?
7 A.:I MET DAVID THROUGH MY HUSBAND WESLEY WHEN WES TOOK
8 THE JOB AT HYDRO PRODUCTS. DAVID WAS ALREADY THERE AND WESLEY
9 TOOK THE POSITION OF BOSS FOR THE DEPARTMENT AND THEN WE MET
10 DAVID.
11 Q.:DID YOU SOCIALIZE WITH DAVID WESTERFIELD?
12 A.:YES, WE DID.
13 Q.:ABOUT HOW OFTEN DID YOU GET TO SOCIALIZE WITH MR.
14 WESTERFIELD?
15 A.:AT FIRST IT WAS, YOU KNOW, BRIEF AT COMPANY
16 FUNCTIONS AND SO FORTH. WHEN DAVID BEGAN DATING JACKIE WE SAW
17 THEM MORE OFTEN, AND THEN WE WERE INVOLVED IN THEIR WEDDING, AND
18 THEN WHEN THEY WERE MARRIED WE SAW THEM EVERY FRIDAY NIGHT FOR A
19 PERIOD OF ABOUT TWO YEARS.
20 Q.:THESE FRIDAY NIGHTS, WHAT WOULD BE THE OCCASION
21 THAT YOU WOULD SEE THEM?
22 A.:OH, THEY’D COME OVER AND WE’D PLAY PINOCHLE, CHAT,
23 ENJOY EACH OTHERS’ COMPANY.
24 Q.:WELL, THIS WOULD BE EVERY NIGHT FOR ABOUT HOW
25 LONG — EVERY FRIDAY NIGHT.
26 A.:EVERY FRIDAY NIGHT APPROXIMATELY TWO YEARS.
27 Q.:SO YOU GOT TO KNOW MR. WESTERFIELD PRETTY WELL?
28 A.:YES, WE DID.
10292
1 Q.:AND DID YOU — WE HEARD A LITTLE BIT ABOUT CANOE
2 TRIPS.
3 A.:YES.
4 Q.:DID YOU GO ON THESE CANOE TRIPS ALSO?
5 A.:YES, I DID GO.
6 Q.:WHEN WERE THE CANOE TRIPS?
7 A.:I BELIEVE IT WAS — WELL, IT WAS EVERY THANKSGIVING
8 HOLIDAY. AS TO THE YEARS, I BELIEVE IT WAS ’77 AND ’78 THAT WE
9 WENT WITH THEM.
10 Q.:THESE WERE THE YEARS THAT YOU WENT WITH JACKIE AND
11 DAVID?
12 A.:WITH DAVID ON THE FIRST ONE, AND I BELIEVE JACKIE
13 CAME ON THE SECOND ONE IN ’78.
14 Q.:NOW, DID YOU LEAVE SAN DIEGO AT SOME POINT?
15 A.:YES, WE DID. WE MOVED TO SPOKANE IN JANUARY OF
16 1979.
17 Q.:DID YOU REMAIN FRIENDS WITH DAVID?
18 A.:YES, WE DID. UM-HMM. WE RETURNED FOR THEIR
19 WEDDING. WES WAS THE BEST MAN AND I SANG AT THE WEDDING. WE
20 BROUGHT OUR SON JOHN WITH US ALSO.
21 Q.:WHEN YOU WOULD VISIT THE WESTERFIELDS DID YOU GET
22 TO KNOW THEIR CHILDREN?
23 A.:YES. LISA IS THE SAME AGE AS OUR SON MAT, SO
24 JACKIE AND I WERE PREGNANT TOGETHER, AND THEN NEIL’S A LITTLE
25 OLDER THAN OUR SON ADAM. SO, AGAIN, WE HAVE THAT IN COMMON.
26 Q.:WERE YOU — DID YOU BECOME FAMILIAR WITH SOME BIRDS
27 THAT DAVID WESTERFIELD HAD?
28 A.:YES. DAVID HAND RAISED BIRDS, AND HE STARTED OFF
10293
1 WITH SOME LOVE BIRDS, AND EVERY TIME WE’D COME BACK TO SEE THEM
2 THERE WOULD BE MORE BIRDS IN A LARGER CAGE, WHICH HE BUILT. AND
3 WHEN WE RETURNED TO SAN DIEGO OUR DAUGHTER SAW THE BIRDS IN THE
4 CAGE AND WANTED ONE, AND DAVID WAS — HE GAVE HER ONE SO THAT
5 SHE COULD HAVE A PET.
6 Q.:WAS THIS "TWEETERS"?
7 A.:"SQUEAKERS."
8 Q.:"SQUEAKERS"?
9 A.:UM-HMM.
10 Q.:WAS THERE A TIME AFTER YOU LEFT SAN DIEGO THAT YOU
11 CAME BACK BY YOURSELF AND MR. WESTERFIELD HELPED YOU?
12 A.:YES. IN THE END OF JUNE OR EARLY JULY OF 1984 I
13 NEEDED TO PURCHASE A CAR, AND WE LIVED IN SPOKANE WHERE THERE
14 WEREN’T VERY MANY VEHICLES, QUALITY VEHICLES AVAILABLE FOR A
15 REASONABLE PRICE. SO I FLEW BACK TO SAN DIEGO AND STAYED WITH
16 MY PARENTS, AND DAVID WAS KIND ENOUGH TO TAKE US — TAKE ME WITH 17 MY LONG LIST OF CARS TO SEE AND DRIVE ME AROUND AND HELP ME FIND
18 THE CAR THAT I WANTED TO BUY.
19 Q.:YOU REMAINED FRIENDS WITH MR. WESTERFIELD FOR QUITE
20 A WHILE THEN?
21 A.:ABOUT 25 YEARS.
22 Q.:STILL CARE ABOUT WHAT HAPPENS TO HIM?
23 A.:YES, I DO.
24 MR. BOYCE: THANK YOU, MA’AM.
25 THE WITNESS: YOU’RE WELCOME.
26 THE COURT: ALL RIGHT.
27 CROSS-EXAMINATION.
28 ///
10294
1 CROSS-EXAMINATION
+
2 BY MR. DUSEK:
3 Q.:HOW LONG HAVE YOU BEEN LIVING, WELL, IN UTAH NOW?
4 A.:A YEAR AND A HALF.
5 Q.:BEFORE THAT?
6 A.:SAN DIEGO.
7 Q.:HOW LONG WERE YOU HERE DURING THAT PERIOD OF TIME?
8 A.:ABOUT SEVEN YEARS.
9 Q.:WAS THAT WHEN YOU WERE PLAYING PINOCHLE WITH HIM
10 EVERY FRIDAY?
11 A.:NO. THAT WAS BEFORE WE LEFT THE FIRST TIME.
12 Q.:WHEN WAS THE PINOCHLE OCCASION?
13 A.:THE PINOCHLE OCCASIONS, IT WAS IN THE ’70S, ’78,
14 ’79, IN THAT AREA. ’77 ACTUALLY.
15 Q.:THAT’S WHEN YOUR MOST CONTACT WAS WITH HIM?
16 A.:YES. WE CONTACTED WITH THE PHONE AFTER THAT
17 OCCASION, HE CAME BACK TO SPOKANE AND VISITED US WITH JACKIE.
18 WE’D SEND LETTERS AND WHEN WE RETURNED TO SAN DIEGO FOR
19 CHRISTMAS WE’D CALL AND GET TOGETHER.
20 Q.:SOMETIMES YOU’D GET TOGETHER, SOMETIMES YOU
21 COULDN’T?
22 A.:SURE.
23 Q.:THE LETTERS WOULD BE HOW ARE YOU, HOW ARE YOU DOING
24 TYPE STUFF?
25 A.:HOW ARE THE KIDS, WHAT’S GOING ON, WHAT’S NEW, SO
26 FORTH.
27 Q.:JUST TRYING TO KEEP IN TOUCH?
28 A.:KEEP IN TOUCH.
10295
1 Q.:LAST TIME YOU HAD GOOD PERSONAL CONTACT WITH HIM
2 WAS BACK IN THE PINOCHLE DAYS?
3 A.:NO. WHEN WE RETURNED TO SAN DIEGO DAVID AND JACKIE
4 WERE LIVING CLOSE TO US. WE LIVED IN RANCHO PENASQUITOS AND
5 THEY WERE OVER IN THE POWAY AREA. AND WE WERE OVER THERE FOR A
6 POOL PARTY AND A FEW OTHER OCCASIONS.
7 Q.:THAT WAS BEFORE HE GOT DIVORCED?
8 A.:YES.
9 Q.:HOW LONG AGO WAS THAT?
10 A.:I THINK THAT WAS — I’M NOT SURE. I’D HAVE TO
11 GUESS AND I DON’T WANT TO DO THAT.
12 Q.:APPROXIMATELY HOW LONG AGO?
13 A.:OKAY. LET’S SEE, SAY, SIX YEARS.
14 Q.:AND SINCE THEN THE CONTACT HAS FALLEN OFF?
15 A.:WESLEY’S TALKED TO DAVID A LOT SINCE THEY WERE
16 DIVORCED. I’VE TALKED TO HIM OCCASIONALLY.
17 Q.:WHAT DO YOU MEAN OCCASIONALLY?
18 A.:HI, HOW ARE YOU, WHAT’S GOING ON.
19 Q.:ALL RIGHT.
20 NOW THAT WOULD BE ON THE PHONE TYPE THING?
21 A.:RIGHT. AND THEN WESLEY WOULD GO OVER AND VISIT
22 HIM.
23 Q.:BUT YOU WOULDN’T GO ALONG ON THOSE TRIPS?
24 A.:I HAVE TEENAGERS AND I WAS SWAMPED, I COULDN’T. I
25 WAS IN CHEERLEADING AND GIRL SCOUTS AND A MILLION THINGS.
26 Q.:DID HE EVER COME UP TO SEE YOU IN UTAH?
27 A.:NO. NO, HE DIDN’T DO THAT. WE WEREN’T THERE LONG
28 ENOUGH.
10296
1 MR. DUSEK: THANK YOU, MA’AM.
2 THE COURT: ALL RIGHT.
3 ANYTHING FURTHER?
4 MR. BOYCE: NO, YOUR HONOR.
5 THE COURT: ALL RIGHT, MA’AM. YOU’RE FREE TO LEAVE AT
6 THIS TIME. PLEASE REMEMBER YOU’RE UNDER AN ADMONITION NOT TO
7 DISCUSS YOUR TESTIMONY UNTIL THE MATTER’S CONCLUDED, OKAY?
8 THE WITNESS: THANK YOU.
9 THE COURT: I’M NOT SURE THERE’S ROOM AVAILABLE, BUT IF
10 THERE IS A SEAT YOU’RE WELCOME TO REMAIN IN THE COURTROOM.
11 ALL RIGHT. THANK YOU.
12 MR. BOYCE: DEFENSE CALLS WILLIAM TOWNSEND.
13
14 -WILLIAM TOWNSEND,
+
15 DEFENDANT’S WITNESS, HAVING BEEN SWORN, TESTIFIED AS FOLLOWS:
16
17 THE COURT: PLEASE HAVE A SEAT, SIR.
18 THE WITNESS: THANK YOU.
19 THE CLERK: SIR, WOULD YOU PLEASE STATE YOUR NAME AND
20 SPELL IT FOR THE RECORD?
21 THE WITNESS: MY NAME IS WILLIAM TOWNSEND,
22 T-O-W-N-S-E-N-D.
23
24 DIRECT EXAMINATION
+
25 BY MR. BOYCE:
26 Q.:GOOD MORNING, MR. TOWNSEND.
27 A.:GOOD MORNING.
28 Q.:WHAT IS YOUR OCCUPATION?
10297
1 A.:I’M A REGULATORY AFFAIRS CONTRACTOR OR CONSULTANT
2 FOR THE MEDICAL INDUSTRY.
3 Q.:WHERE DO YOU LIVE NOW?
4 A.:I LIVE IN DENVER, THE DENVER AREA.
5 Q.:COLORADO?
6 A.:YES, SIR.
7 Q.:DO YOU KNOW DAVID WESTERFIELD?
8 A.:YES, I DO.
9 Q.:HE’S THE GENTLEMAN AT THE CORNER OF COUNSEL TABLE
10 THERE?
11 A.:YES.
12 Q.:WHEN DID YOU MEET MR. WESTERFIELD?
13 A.:I MET DAVE WHEN I JOINED SUTTER CORPORATION IN SAN
14 DIEGO HERE IN 1985.
15 Q.:WHAT WAS YOUR POSITION AT SUTTER CORPORATION?
16 A.:I WAS THE QUALITY ASSURANCE AND REGULATORY AFFAIRS
17 MANAGER. I HAD OTHER MANAGEMENT POSITIONS AS TIME WENT ON, BUT
18 PRIMARILY THAT WAS MY MAIN RESPONSIBILITY.
19 Q.:WHAT DOES THAT MEAN YOU DID AT SUTTER?
20 A.:I WAS KIND OF, FOR THE MOST PART, THE TRAFFIC COP
21 FOR THE MANUFACTURING PROCESS — FOR THE DEVELOPMENT AND
22 MANUFACTURING PROCESS.
23 MY JOB WAS TO UNDERSTAND THE FOOD AND DRUG
24 ADMINISTRATION REQUIREMENTS FOR MEDICAL MANUFACTURERS AND
25 FOREIGN GOVERNMENT REQUIREMENTS, AND THEN TO TRANSLATE THOSE
26 INTO A LANGUAGE THE COMPANY COULD OPERATE UNDER AND SET UP THE
27 POLICIES AND PROCEDURES FOR THE MANUFACTURERS’ PROCESS AND FOR
28 THE DESIGN CONTROL PROCESS.
10298
1 Q.:AND MR. WESTERFIELD ALSO WORKED AT SUTTER
2 CORPORATION?
3 A.:YES. DAVE WAS A PEER ENGINEER. WELL, HE WAS THE
4 MANAGER OF SUSTAINING ENGINEERING AND DEVELOPMENTAL ENGINEERING.
5 Q.:HOW DID YOUR JOB AND MR. WESTERFIELD’S INTERFACE?
6 A.:WE INTERFACED DAILY. WHEN DAVE WAS ON A
7 DEVELOPMENTAL PROJECT THERE WOULD BE A LOT OF WORK WITHIN THE
8 ENGINEERING DEPARTMENT, AND QUALITY CONTROL EARLY ON IN THE
9 PROCESS WOULD NOT HAVE THAT MUCH INTERFACE WITH THEM.
10 BUT IN THE SUSTAINING ENGINEERING ROLE, WHICH IS
11 AFTER PRODUCTS ARE RELEASED INTO PRODUCTION AND THEY’RE GOING
12 THROUGH MANUFACTURING, THEN ISSUES COME UP WITH THE PRODUCT,
13 THERE WILL BE PROBLEMS WITH PARTS AND THERE WILL BE CHANGES THAT
14 NEED TO BE MADE TO THE DEVICE. AND SO THERE WAS A VERY CLOSE
15 INTERFACE AT THE MANAGEMENT LEVEL WITH DAVE AND HIS GROUP.
16 Q.:WHAT TYPE OF PRODUCTS DID SUTTER CORPORATION
17 MANUFACTURE IN THOSE DAYS?
18 A.:THERE WERE TWO AREAS. INITIALLY, IN 1985 WHEN I
19 JOINED WE HAD A IMPLANT FABRICATION GROUP, AND WE HAD THE
20 ELECTRONICS PRODUCT GROUP, WHICH WAS REHABILITATION DEVICES.
21 THE IMPLANTS WERE, FOR THE MOST PART, SILICONE REPLACEMENT
22 IMPLANTS FOR FINGERS AND TOE JOINTS, AND WE DID INITIALLY CARRY
23 A HEART VALVE, WHICH WAS A CARRY OVER FROM A PREVIOUS COMPANY,
24 AND — ONE MECHANICAL HEART VALVE.
25 Q.:AND WHAT WAS MR. WESTERFIELD’S ROLE IN THE
26 DEVELOPMENT OF THESE PRODUCTS?
27 A.:HE WAS VERY SPECIFICALLY INVOLVED IN THE
28 DEVELOPMENT OF THE CONTINUOUS PASSIVE MOTION DEVICES, WHICH IS
10299
1 THE REHABILITATION DEVICES. THEY’RE THE ELECTRO-MECHANICAL AND
2 ELECTRONIC PRODUCTS THAT ARE INTENDED FOR REHABILITATION OF A
3 KNEE FOLLOWING SURGERY. AND WE HAD A HAND DEVICE AND EVENTUALLY
4 A ANKLE DEVICE. AND SO HE WAS — HE WAS KEY IN THE DEVELOPMENT
5 PROCESS FOR THOSE. AND DAVE ALSO WORKED IN DEVELOPMENTAL
6 SUPPORT FOR OUR IMPLANT PRODUCT LINE, FOR SILICONE IMPLANTS.
7 Q.:AND SPECIFICALLY WHAT WOULD HE BE DOING? WOULD HE
8 DESIGN THE PRODUCT OR WOULD HE DESIGN HOW THE PRODUCT WAS USED
9 OR EXACTLY WHAT WOULD HE DO?
10 A.:OVERALL FOR BOTH DIVISIONS OR FOR BOTH GROUPS?
11 Q.:TAKE THE FIRST GROUP FIRST.
12 A.:FOR THE C. P. M. GROUP?
13 Q.:YES. WHEN YOU SAY C. P. M. —
14 A.:CONTINUOUS PASSIVE MOTION, I’M SORRY.
15 DAVE WAS THE PROJECT MANAGER WHERE HE LED A TEAM OF
16 ENGINEERS, AND WHAT DAVE’S ROLE WOULD BE WOULD BE TO SPEND TIME
17 ON HIS OWN IN AND DEVELOP A CONCEPT FOR A NEW DEVICE. HE WOULD
18 LOOK AT THE NEEDS IN THE MARKET. HE WOULD LOOK AT THE PATIENT
19 NEEDS. WHERE WAS THERE LACKING IN THE MEDICAL FIELD A CERTAIN
20 TYPE OF REHABILITATION DEVICE THAT MET A SPECIFIC PURPOSE. HE
21 WOULD TAKE THOSE REQUIREMENTS AND START TO VISUALIZE A DEVICE
22 THAT WOULD MEET THOSE NEEDS. THEN HE’D FORM A DESIGN GROUP, AND
23 IN THAT DESIGN GROUP HE WOULD TASK EACH OF THESE ENGINEERS WITH
24 CERTAIN PORTIONS OF THE DESIGN.
25 NOW, I UNDERSTOOD HIS ROLE IN THE SILICONE PRODUCTS
26 IMPLANT WAS A MUCH MORE INDEPENDENT ROLE.
27 Q.:AND WHAT ROLE WAS THAT?
28 A.:THE ROLE OF ACTUALLY CREATING A PRODUCT
10300
1 SPECIFICALLY FOR A PURPOSE, WHICH WAS FOR A REPLACEMENT JOINT —
2 A REPLACEMENT JOINT IMPLANT FOR THE BIG KNUCKLE. IT’S CALLED
3 THE M. C. P. AND I’LL BREAK IT DOWN IF YOU NEED TO. IT’S
4 METACARPAL PHALANGEAL JOINT, WHICH IS THE JOINT BETWEEN THE
5 METACARPAL BONE AND THE PHALANGEAL BONE OF YOUR FINGER. SO HE
6 WOULD BE TASKED WITH FINDING AN IMPLANT FOR THAT TO SERVE THE
7 PURPOSE, AND THEN DO THE RESEARCH THAT’S NECESSARY TO UNDERSTAND
8 WHAT’S ALREADY IN THE MARKET, WHAT’S FAILED AND WHAT’S
9 SUCCEEDED, AND FIND OUT IF THERE’S A DESIGN THAT HE CAN COME UP
10 WITH THAT CORRECTS THE OPEN AREAS OF THE MARKET.
11 Q.:AND ARE YOU FAMILIAR WITH A DEVICE WHICH MR.
12 WESTERFIELD DEVELOPED FOR WHICH HE GOT A PATENT IN THAT AREA?
13 A.:IN THE SILICONE — YES, THE M. C. P. IMPLANT,
14 METACARPAL PHALANGEAL IMPLANT.
15 Q.:AND SHOWING YOU WHAT HAS BEEN MARKED AS COURT’S
16 EXHIBIT 22 2, A PATENT, DOES THAT APPEAR TO BE THE PATENT FOR THE
17 DEVICE THAT YOU JUST DESCRIBED FOR THE JURY?
18 A.:YES, THAT’S IT. THAT’S IT.
19 Q.:AND EXACTLY WHAT DOES THIS DEVICE DO?
20 A.:IT’S — WHEN A PATIENT SUFFERS FROM A CRIPPLING
21 FORM OR A DEGENERATIVE FORM OF ARTHRITIS, AND SOME OTHER DAMAGE
22 TO THESE KNUCKLES SPECIFICALLY, THE JOINTS BECOME BASICALLY
23 WORTHLESS IN SOME CASES. I MEAN, THEY DECOMPOSE AND THEY
24 DEGENERATE TO THE POINT THAT THEY’RE NOT USEFUL. AND WHAT AN
25 ORTHOPEDIC SURGEON WOULD DO WOULD BE TO PUT THE PATIENT IN
26 SURGERY, CUT OPEN THE FINGER — THE SKIN, PEEL IT BACK, PEEL
27 BACK THE MUSCLE, AND THEN USING A BONE SAW HE WOULD CUT OUT THE
28 JOINT THAT — THE SECTION OF THE JOINT ARE CUT ON EITHER SIDE OF
10301
1 IT AND REMOVE IT. AND THEN WITH THE TOOLS THAT ARE PART OF THE
2 DESIGN PROCESS HE WOULD OPEN UP THE CANALS IN EITHER ONE OF THE
3 BONES AND THEN PLACE THE IMPLANT INSIDE THAT AS A REPLACEMENT
4 FOR THE ONE HE JUST PULLED OUT, PULL THE MUSCLE BACK OVER AND
5 THEN SEW THE JOINT SHUT. AND SO WHAT — THAT WOULD RESTORE THE
6 FUNCTION OF THE JOINT COMPLETELY WITHOUT THE PAIN.
7 Q.:DID YOU — AND WHAT DISEASE IS IT THAT WOULD CAUSE
8 THIS TYPE OF PAIN OR THIS TYPE OF DISABILITY IN THE HAND?
9 A.:WELL, THERE ARE SEVERAL TYPE OF DEGENERATIVE BONE
10 DISEASES, I UNDERSTAND. ONE OF THEM SPECIFICALLY IS RHEUMATOID
11 ARTHRITIS.
12 Q.:DO YOU HAVE ANY PERSONAL FAMILIARITY WITH THAT
13 DISEASE?
14 A.:THIS — YES. THERE WAS — THIS WAS A IMPORTANT ONE
15 TO ME. THIS — I DON’T KNOW IF DAVE REALLY KNEW, BUT MY MOTHER
16 SUFFERED FROM RHEUMATOID ARTHRITIS AT A YOUNG AGE. SHE HAD
17 POLIO WHEN SHE WAS A CHILD, AND THEN POLIO KIND OF ALLOWS
18 ARTHRITIS TO INVADE SEVERAL PARTS OF THE BODY AT THE SAME TIME,
19 AND IT WENT TO ALL HER EXTREMITIES. AND SO ABOUT THE AGE OF
3 0
20 SHE HAD CRIPPLING ARTHRITIS IN BOTH HER HANDS AND FEET AND HAD
21 TO DEAL — THEY DIDN’T HAVE THIS TYPE OF TECHNOLOGY BACK THERE,
22 SO ALL THEY COULD DO WAS DEAL WITH THE PAIN AND TRY TO LESSEN
23 THE PAIN WITH NARCOTICS OR DRUGS. AND BASICALLY, WHAT WOULD
24 HAPPEN IS HER HANDS WOULD LOSE THEIR FUNCTION. THEY’D CURL UP
25 IN A BALL LIKE THIS, AND SHE SUFFERED A LOT OF PAIN. SHE
26 FINALLY DIED FROM COMPLICATIONS FROM THE ARTHRITIS IN 1972. AND
27 WHEN I JOINED SUTTER, AND DAVE CAME OUT WITH THIS DEVICE, I
28 THOUGHT — MY FEELING WAS GOD, IF THIS WAS ONLY AROUND WHEN MOM
10302
1 WAS AROUND. SO I THINK THAT I WAS PROBABLY A LITTLE MORE
2 PASSIONATE INVESTED IN THIS DEVICE THAN MOST.
3 Q.:THIS WAS A DEVICE THAT MR. WESTERFIELD DESIGNED AND
4 HAS THE PATENT FOR?
5 A.:YES, SIR.
6 Q.:WERE THERE OTHER DEVICES LIKE THIS OUT THERE?
7 A.:THERE WERE OTHER REPLACEMENT IMPLANTS FOR THE
8 FINGER JOINTS, FINGER JOINTS AND TOE JOINTS. THEY HAD BEEN ON
9 THE MARKET FOR SOME PERIOD OF TIME BEFOREHAND. THEY ALL HAD
10 THEIR FAILINGS AND THEY ALL HAD THEIR LIMITATIONS.
11 Q.:HOW WAS MR. WESTERFIELD’S DEVICE DIFFERENT?
12 A.:WELL, ONE OF THE PROBLEMS IN THE INDUSTRY FOR THIS
13 JOINT IS BECAUSE IT’S ONE OF THE MOST WEIGHT BEARING JOINTS OR
14 LOAD BEARING JOINTS. IF YOU TRY TO RETURN TO NORMAL FUNCTION,
15 THERE IS A LOT YOU WANT TO DO WITH GRIPPING AND USE OF YOUR
16 FINGER. ONCE YOU RESTORE THE FUNCTION YOU CAN BEND IT. MOST OF
17 THE JOINTS THAT WERE ON THE MARKET WERE CENTER-HINGED. THEY
18 WERE BUILT IN A WAY SO IT WAS VERY SIMPLE.
19 THERE WAS A BODY ON EACH SIDE OF THE CENTER, AND
20 THEN THERE WAS JUST A SIMPLE CONNECTION POINT BETWEEN ‘EM SO IT
21 WOULD BE A BEND ON EITHER SIDE OF THE IMPLANT. AND THE PROBLEM
22 WITH THOSE WAS IS BECAUSE THAT WAS NOT THE NATURAL POINT OF
23 ROTATION FOR THE JOINT. AND BECAUSE IT WAS NOT THE NATURAL
24 POINT OF ROTATION IT INDUCED STRESSES INTO THE JOINT, WHICH
25 WOULD CAUSE THEM TO TEAR AT SOME POINTS. WHEN YOU TRIED TO DO
26 TOO MUCH WITH YOUR HAND IT WOULD CAUSE IT TO TEAR.
27 WHAT DAVID’S IMPLANT WAS A LOT MORE CLEVER DESIGN
28 AND MUCH MORE CLOSELY RESEMBLED THE NORMAL ANATOMICAL DESIGN OF
10303
1 THE KNUCKLE WHERE IT HINGED SOMEWHERE UNDER THE CENTER, AND THEN
2 HAD BUILT INTO IT A WAY TO RELIEVE PRESSURE ON THE MASS OF THE
3 IMPLANT. SO WHEN YOU GRIP SOMETHING HARD, THERE WAS SOME
4 FLEXIBILITY BUILT INTO THE IMPLANT TO ABSORB THAT, AND IT
5 WOULDN’T GO TO DESTRUCTION OF THE IMPLANT.
6 Q.:HAS SOCIETY BENEFITED FROM THIS DEVICE THAT MR.
7 WESTERFIELD DESIGNED?
8 A.:YES. I THINK ANYBODY WHOSE GOT THIS IMPLANT OVER
9 WHAT WAS PREVIOUSLY AVAILABLE BENEFIT FROM IT DEFINITELY.
10 Q.:DO YOU CARE ABOUT WHAT HAPPENS TO MR. WESTERFIELD?
11 A.:YES, I DO.
12 Q.:THAT YOU, MR. TOWNSEND.
13 THE COURT: ALL RIGHT.
14 CROSS-EXAMINATION.
15
16 CROSS-EXAMINATION
+
17 BY MR. DUSEK:
18 Q.:HOW LONG DID YOU WORK AT SUTTER SIR?
19 A.:7 YEARS SIR.
20 Q.:HOW LONG DID HE WORK AT SUTTER?
21 A.:DAVE WAS THERE BEFORE I DID SO I’M NOT SURE HOW
22 LONG HE WAS {THERE|THEIR|THEY’RE}.
23 Q.:DID HE LEAVE BEFORE OR AFTER YOU?
24 A.:JUST PRIOR TO. PROBABLY {WIN|WITHIN} A YEAR OR SO
25 BEFORE I LEFT.
26 Q.:AND WHEN WAS IT THAT YOU MOVED TO COLORADO?
27 A.:IN 1994.
28 Q.:AND YOU’VE BEEN {THERE|THEIR|THEY’RE} SINCE?
10304
1 A.:YES, SIR.
2 Q.:WHEN WAS THE LAST TIME YOU SAW THE DEFENDANT?
3 A.:IT WOULD HAVE BEEN PROBABLY 1992. I THINK IT’S
4 {BEEN|BE} TEN YEARS.
5 Q.:TEN ENGINEERS SINCE YOU’VE HAD ANY CONTACT WITH HIM
6 AT ALL?
7 A.:YES, SIR.
8 Q.:SO YOU DON’T KNOW WHAT HE’S {BEEN|BE} DOING FOR THE
9 LAST TEN YEARS?
10 A.:NO.
11 Q.:HAVEN’T EXCHANGED LETTERS OR PHONE CALLS DURING
12 THAT PERIOD OF TIME?
13 A.:NO, SIR.
14 Q.:WHEN WERE YOU FIRST CONTACTED ABOUT THIS CASE?
15 A.:I ACTUALLY CONTACTED THE INVESTIGATOR IN MARCH I
16 BELIEVE IT WAS AND LEFT A PHONE NUMBER AND THEN THE FIRST TIME I
17 WAS CONTACTED WAS I BELIEVE IT WAS LATE JULY OR EARLY AUGUST.
18 Q.:WHEN DID YOU COME HERE TO SAN DIEGO?
19 A.:LAST NIGHT.
20 Q.:I’M SORRY?
21 A.:YESTERDAY MORNING ACTUALLY.
22 Q.:DID YOU SEE HIM?
23 A.:NO I DIDN’T.
24 Q.:DIDN’T GO BY TO SEE HIM?
25 MR. FELDMAN: YOUR HONOR OBJECTION. THERE’S LIMITATIONS.
26 THE COURT: SUSTAINED.
27 BY MR. DUSEK:
28 Q.:WHEN ARE YOU GOING BACK?
10305
1 A.:FRIDAY.
2 MR. FELDMAN: I’M SORRY VAGUE AS TO WHERE.
3 THE COURT: WHEN ARE YOU GOING BACK TO COLORADO I THINK
4 IS THE GIST OF THE QUESTION.
5 THE WITNESS: I’LL {BEEN|BE} FLYING BACK FRIDAY MORNING.
6 MR. DUSEK:
7 BY MR. DUSEK:
8 Q.:DID YOU KNOW HIS WIFE?
9 A.:YES.
10 Q.:PERSONALLY?
11 A.:I {NEW|KNEW} HIS SECOND WIFE.
12 Q.:PERSONALLY?
13 A.:ADDITIONALLY PROFESSIONALLY AND TO SOME EXTENT
14 PERSONALLY, YES NOT A GOOD DEEP PERSONAL RELATIONSHIP.
15 MR. BOYCE: THANK YOU, SIR.
16 THE COURT: ALL RIGHT.
17 ANYTHING FURTHER?
18 MR. BOYCE: JUST BRIEFLY, YOUR HONOR.
19
20 REDIRECT EXAMINATION
+
21 BY MR. BOYCE:
22 Q.:MR. TOWNSEND, DID YOU — YOU WERE ASKED IF YOU KNEW
23 HIS WIFE. DID YOU SOCIALIZE WITH MR. WESTERFIELD AFTER —
24 OUTSIDE OF BUSINESS?
25 A.:WE HAD A — WE HAD A SMALL COMPANY AND A PRETTY
26 TIGHT MANAGEMENT GROUP AND THERE WAS AN ENVIRONMENT THERE FOR A
27 LOT OF INTERFACE, BOTH SOCIALLY AND PROFESSIONALLY, WITH THE
28 MANAGEMENT AND EMPLOYEES, AND SO THERE WERE A LOT OF FUNCTIONS
10306
1 THAT WERE PART OF THE — COMPANY PICNICS, THOSE TYPES OF
2 FUNCTIONS, AS WELL AS WE WERE PRETTY GOOD HAPPY HOUR CROWD IN
3 THOSE DAYS, AND THEN WE HAD SOME RECREATIONAL THINGS, LIKE A
4 SOFTBALL TEAM THAT DAVE AND I WERE ON TOGETHER. WE WERE ON A
5 PAINT BALL TEAM FOR A PERIOD OF TIME.
6 Q.:IS THAT A PAINT BALL TEAM WHERE YOU CHOOSE SIDES
7 AND SHOOT PAINT BALLS AT EACH OTHER?
8 A.:THAT’S RIGHT.
9 Q.:WHAT WAS THE NAME OF THE PAINT BALL TEAM?
10 A.:IT WAS — NOT MY FAULT. THE PAINT BALL TEAM’S NAME
11 WAS "YO’ MOMA."
12 Q.:WHAT DID THAT STAND FOR?
13 A.:IT WAS AN ACRONYM FOR YOUNG OFFICE MERCENARIES OF
14 MODERATE AFFLUENCE.
15 MR. BOYCE: THANK YOU, SIR.
16 THE COURT: ANYTHING FURTHER, MR. DUSEK?
17 MR. DUSEK: NO, YOUR HONOR.
18 THE COURT: ALL RIGHT. IS THIS WITNESS TO BE EXCUSED?
19 MR. BOYCE: YES, YOUR HONOR.
20 THE COURT: THANK YOU, SIR, FOR COMING IN. YOU’RE FREE
21 TO LEAVE THESE PROCEEDINGS OR REMAIN AS YOU CHOOSE. PLEASE DO
22 NOT DISCUSS YOUR TESTIMONY UNTIL THE MATTER IS CONCLUDED.
23 MR. FELDMAN: ALDEN MILLER, YOUR HONOR.
24
25 ///
26 ///
27 ///
28 ///
10307
1 -ALDEN MILLER,
+
2 DEFENDANT’S WITNESS, HAVING BEEN SWORN, TESTIFIED AS FOLLOWS:
3
4 THE COURT: PLEASE HAVE A SEAT, SIR.
5 THE CLERK: SIR, WOULD YOU PLEASE STATE YOUR NAME AND
6 SPELL IT FOR THE RECORD.
7 THE WITNESS: MY NAME IS ALDEN MILLER, M-I-L-L-E-R.
8
9 DIRECT EXAMINATION
+
10 BY MR. FELDMAN:
11 Q.:GOOD MORNING, SIR.
12 A.:GOOD MORNING.
13 Q.:DO YOU KNOW DAVID WESTERFIELD?
14 A.:I CERTAINLY DO.
15 Q.:HOW DO YOU KNOW HIM?
16 A.:I COME TO MEET DAVID WESTERFIELD SOME A LITTLE OVER
17 15 YEARS AGO. WE WERE BUILDING HOMES IN THE SAME NEIGHBORHOOD,
18 AND EVER SINCE LEAVING QUEENS AT THAT TIME I’VE CONSIDERED DAVID
19 A PART OF MY FAMILY.
20 Q.:WHY DO YOU SAY THAT?
21 A.:BECAUSE WE WERE VERY CLOSE. HIS FAMILY AND MY
22 FAMILY — I COME FROM THE EAST COAST. I’M AN ONLY CHILD. MY
23 WIFE COMES FROM THE EAST COAST. SHE’S ONE OF FIVE GIRLS.
24 LIVING HERE ON THE WEST COAST WE DIDN’T HAVE CLOSE FAMILY BY US,
25 SO OUR FAMILY BECAME OUR FRIENDS, OUR IMMEDIATE FRIENDS, OUR
26 CLOSE FRIENDS, AND DAVID AND HIS WIFE AND THEIR CHILDREN ARE
27 VERY CLOSE TO US.
28 Q.:WHEN — THE HOUSE THAT YOU WERE TALKING ABOUT, WAS
10308
1 THAT ON TREE RIDGE?
2 A.:THAT WAS ON TREE RIDGE TERRACE, THAT’S CORRECT.
3 Q.:APPROXIMATELY WHAT YEAR DID YOU MOVE INTO TREE
4 RIDGE TERRACE, SIR?
5 A.:WE DIDN’T MOVE INTO THE HOME UNTIL THE SPRING OF
6 1987, BUT OUR MEETING TOOK PLACE IN 1986.
7 Q.:HOW LONG DID YOU STAY AT TREE RIDGE, SIR?
8 A.:I WAS AT TREE RIDGE TERRACE UNTIL OCTOBER OF 2000.
9 Q.:WITH REGARD TO YOUR FAMILIES, WHAT KIND OF
10 INTERACTION WOULD YOU HAVE AMONGST YOUR FAMILIES?
11 A.:OUR FAMILIES WOULD GET TOGETHER VERY FREQUENTLY.
12 IN FACT, SOMETIMES AS OFTEN AS EVERY WEEKEND, AND INTERACT IN
13 PLAYING GAMES, BOARD GAMES AS AN EXAMPLE, OR SWIMMING IN EACH
14 OTHERS’ POOLS.
15 THIS INCLUDED MY TEENAGE BOYS, AND DAVID’S AT THAT
16 TIME WOULD HAVE BEEN PRETEEN CHILDREN THROUGH THEIR TEENS
17 ACTUALLY, IN FACT. AND MY BOYS WENT OFF TO SCHOOL, OFF TO
18 COLLEGE, AND THE INTERACTION AT THAT POINT TOOK ON A SLIGHTLY
19 DIFFERENT ANGLE IN THAT THEY WOULD ONLY COME HOME FROM SCHOOL
20 OCCASIONALLY. I WOULD STILL GET TOGETHER WITH THE WESTERFIELDS
21 ALONG WITH MY WIFE, BUT OUR CHILDREN WOULD ONLY GET TOGETHER
22 WITH THEM WHEN THEY CAME UP FOR THE HOLIDAYS. MY BOYS LOOKED
23 FORWARD TO COMING HOME AND SEEING THE WESTERFIELDS WHEN THEY
24 CAME HOME FROM COLLEGE.
25 Q.:YOUR SONS ARE OUTSIDE?
26 A.:MY SONS ARE OUTSIDE. YES, THEY ARE.
27 Q.:WITH REGARD TO YOUR PARTICULAR RELATIONSHIP WITH
28 MR. WESTERFIELD, AT LEAST WHEN YOUR FAMILIES WERE TOGETHER ON
10309
1 TREE RIDGE WITH THE POOL, WOULD MR. WESTERFIELD EXERCISE, I
2 DON’T KNOW, DILIGENCE FOR WATCHING OUT FOR HOW THE KIDS WERE
3 DOING?
4 A.:OH, ABSOLUTELY, ABSOLUTELY.
5 LET ME TELL YOU A LITTLE STORY ABOUT SOME OF THE
6 OTHER NEIGHBORS JUST BRIEFLY.
7 MR. DUSEK: OBJECTION, NONRESPONSIVE.
8 THE COURT: IT’S NONRESPONSIVE, SUSTAINED.
9 MR. FELDMAN: I’M SORRY, YOUR HONOR.
10 Q.:IS THERE A POINT THAT YOU WANTED TO MAKE THERE?
11 A.:THE POINT THAT I WANTED TO MAKE WAS THAT HE WAS
12 VERY CAUTIOUS OF THE CHILDREN’S BEHAVIOR SO THAT THEY DIDN’T GET
13 INJURED OR THEY WERE NOT IN HARM’S WAY.
14 Q.:OKAY. SIR.
15 (MARKED FOR ID: = TRIAL EX. 235 – PHOTO )
16 (MARKED FOR ID: = TRIAL EX. 236 – PHOTO )
17 (MARKED FOR ID: = TRIAL EX. 237 – PHOTO )
18 SIR, I’D LIKE TO SHOW YOU A SERIES OF PHOTOGRAPHS
19 THAT HAVE BEEN MARKED 235, 236 AND 237.
20 FIRST, SIR, DIRECTING YOUR ATTENTION TO WHAT’S BEEN
21 MARKED 235, I’D LIKE YOU TO BE ABLE TO HOLD IT SO THE JURY CAN
22 SEE IT. I WANT YOU TO TELL US WHAT THAT PHOTOGRAPH DEPICTS, IF
23 YOU CAN, PLEASE.
24 A.:THIS PHOTOGRAPH DEPICTS, TO THE BEST OF MY
25 RECOLLECTION, A BIRTHDAY PARTY FOR MY NEXT DOOR NEIGHBOR. IT
26 WAS HER
4 0TH BIRTHDAY PARTY, AND THAT IS A PICTURE OF THE THREE
27 FAMILIES. I’M TALKING ABOUT THE ADULT MEMBERS OF THE FAMILY,
28 THE WESTERFIELDS, THE MILLERS AND THE PATRINOS. IT WOULD APPEAR
10310
1 AS THOUGH THAT PICTURE WAS TAKEN IN THE PATRINOS’ BACKYARD,
2 WHICH WOULD BE ADJACENT TO OURS.
3 Q.:LET ME DIRECT YOUR ATTENTION TO WHAT’S BEEN MARKED
4
23 6.
5 CAN YOU TELL US WHAT DOES 236 DEPICT?
6 A.:236 WOULD APPEAR TO BE A PICTURE THAT WAS TAKEN OF
7 DAVID SITTING AT A PICNIC TABLE IN CUYAMACA PARK DURING ONE OF
8 OUR CAMPING OUTINGS. AT THAT PARTICULAR OUTING WOULD HAVE BEEN
9 THE WESTERFIELDS, THE MILLERS, THE BROWNS, AND WE WOULD HAVE
10 BEEN AROUND THE CAMPFIRE AT THIS POINT. IT APPEARS TO HAVE BEEN
11 BY FLASHLIGHT — OR BY FLASH. WE WERE PROBABLY PLAYING GAMES
12 WITH THE CHILDREN, LIKE I SEE THIS OR I SEE THAT OR, YOU KNOW,
13 ONE OF THOSE TYPE OF GAMES.
14 Q.:SIR, DIRECTING YOUR ATTENTION TO WHAT’S BEEN MARKED
15
23 7, CAN YOU TELL ME WHAT DOES THAT DEPICT, PLEASE?
16 A.:I CERTAINLY CAN.
17 Q.:AGAIN, YOU NEED TO SHOW IT SO THE JURY CAN SEE WHAT
18 IT IS.
19 A.:237 WOULD APPEAR TO BE A PHOTOGRAPH THAT WAS TAKEN
20 WHEN ONE OF MY WIFE’S SISTERS AND HER HUSBAND CAME TO VISIT US.
21 SO AGAIN, GOING BACK TO THAT FAMILY ROUTINE, DAVID
22 AND JACKIE AND KATHLEEN’S SISTER, MY BROTHER-IN-LAW AND I WENT
23 SIGHT-SEEING AROUND THE SAN DIEGO AREA. THAT PARTICULAR PICTURE
24 WOULD SEEM TO BE IN FRONT OF ONE OF THE BUILDINGS THAT — SAY
25 THE ZOO, AS AN EXAMPLE.
26 Q.:OKAY.
27 DID YOU CELEBRATE BIRTHDAY PARTIES WITH MR.
28 WESTERFIELD?
10311
1 A.:ABSOLUTELY.
2 Q.:CAN YOU TELL US ABOUT THAT?
3 A.:INTERESTING. DAVID AT HIS HOME HELD A 50TH
4 BIRTHDAY PARTY FOR ME WHEN I TURNED THAT MAGIC 50.
5 Q.:I HATE TO ASK YOU, HOW LONG AGO WAS THAT?
6 A.:THAT WAS TEN YEARS AGO —
7 Q.:OKAY.
8 A.:— IN ROUND FIGURES. HE HELD A SURPRISE
4 40TH
9 BIRTHDAY FOR MY WIFE IN WHICH, IN FACT, MY BOYS CAME HOME FROM
10 SCHOOL AND SECRETED THEMSELVES AT HIS HOME SO THAT WE COULD
11 SURPRISE HER.
12 WE TOOK HER OUT ON AN OUTING TO THE WILD ANIMAL
13 PARK FOR ROAR AND SNORE THAT NIGHT AND BROUGHT HER HOME TO A
14 SURPRISE PARTY AT DAVID’S HOME WHERE THE BOYS WERE WAITING FOR
15 HER. DAVID’S
4 0TH BIRTHDAY WAS CELEBRATED AT MY HOME WHEREIN
16 HIS FAMILY AND FRIENDS, IN ADDITION TO OURS, WERE THERE. SO
17 THERE WERE A NUMBER OF THOSE TYPES OF OCCASIONS DURING THE TIME
18 THAT WE’VE KNOWN THEM.
19 Q.:SIR, DO YOU CONSIDER — HAVE YOU SEEN HOW DAVID
20 WOULD REACT AMONGST HIS OR WITH HIS CHILDREN? CAN YOU TELL
21 WHETHER OR NOT, FOR INSTANCE, HE WOULD PARTICIPATE IN HIS KIDS’
22 LIVES?
23 A.:ABSOLUTELY.
24 I’VE OBSERVED DAVID TAKING THE CHILDREN TO SCHOOL
25 AND TO SCHOOL ACTIVITIES. WHILE I WASN’T AT THE SCHOOL BECAUSE
26 MY CHILDREN WEREN’T THE SAME AGE, I OBSERVED HIM TAKING THEM AND
27 COMING BACK WITH THEM. I’VE OBSERVED HIM IN OUR INTERACTION IN
28 GAMES, AS AN EXAMPLE, AT TIMES WHEN THE CHILDREN WERE ACTUALLY
10312
1 TOO YOUNG TO HAVE PLAYED THE GAME THAT WE WERE PLAYING, IN
2 PARTICULAR, AT LEAST ON THEIR OWN A HUNDRED PERCENT, HE WOULD
3 HOLD THEM ON HIS LAP AND COACH THEM THROUGH THE PROCESS. SO
4 I’VE OBSERVED HIS BEHAVIOR WITH CHILDREN A LOT.
5 Q.:DO YOU CONSIDER YOURSELF A FRIEND OF DAVID’S?
6 A.:I CERTAINLY DO.
7 Q.:CARE WHAT HAPPENS TO HIM?
8 A.:ABSOLUTELY.
9 Q.:YOUR FAMILY VISITED WITH HIM, IS THAT RIGHT,
10 RECENTLY?
11 A.:WE VISITED WITH HIM DAY BEFORE YESTERDAY, IN FACT?
12 A.:BUT BEFORE YOU WERE ABLE TO VISIT WITH HIM YOU HAD
13 TO NEGOTIATE WITH THE JAIL, IS THAT RIGHT?
14 A.:ABSOLUTELY.
15 Q.:BECAUSE VISITATION YOU LEARNED WAS VERY, VERY
16 LIMITED AT THE JAIL, IS THAT RIGHT?
17 A.:LIMITATION AT THE JAIL IS EXTREMELY RESTRICTIVE.
18 DAVID IS PERMITTED, AS I UNDERSTAND IT, TWO VISITATIONS A WEEK,
19 AND EACH OF THOSE VISITATIONS ARE RESTRICTED TO THREE PERSONS.
20 Q.:AND IS THERE A TIME LIMIT?
21 A.:THE TIME LIMIT IS
3 30 MINUTES.
22 Q.:AND DID YOU HAVE TO MAKE ARRANGEMENTS TO GET DOWN
23 HERE?
24 A.:WE HAD TO MAKE ARRANGEMENTS AHEAD OF TIME, GET THE
25 PERMISSION OF THE COURT — SORRY, NOT THE COURT, THE JAIL. WE
26 HAD TO ARRIVE
4 5 MINUTES IN ADVANCE, GO THROUGH, YOU KNOW,
27 PAPERWORK, THEN PROCEED TO A RESTRICTED AREA WHERE WE WERE PUT
28 IN A LITTLE BOOTH AND PERMITTED TO TALK WITH HIM CLOSED CIRCUIT
10313
1 TV.
2 I WOULD GATHER THAT HE WASN’T EVEN ON THE SAME
3 FLOOR THAT WE WERE, ALTHOUGH I DON’T KNOW THAT FOR A FACT.
4 Q.:THANK YOU.
5 A.:I KNOW THAT — I KNOW THAT MY YOUNGEST SON, WHO
6 DIDN’T GET INTO TOWN UNTIL THE DAY AFTERWARDS, WAS VERY
7 DISTRAUGHT THAT HE WASN’T ABLE TO SEE DAVID.
8 Q.:IN OTHER WORDS, YOUR YOUNGEST SON IS A.J., IS THAT
9 RIGHT?
10 A.:YES. ALDEN JOHN, WHO GOES BY A.J.
11 Q.:A. J. JUST GOT HERE YESTERDAY?
12 A.:THAT’S CORRECT.
13 Q.:A. J. WASN’T ABLE TO GET TO THE JAIL BECAUSE MR.
14 WESTERFIELD HAD ALREADY HAD HIS VISITS?
15 A.:HAD HIS VISITS FOR THE WEEK AND TIME CONSTRAINTS
16 DIDN’T PERMIT IT.
17 Q.:SO WHETHER OR NOT SOMEBODY WANTS TO GO VISIT DAVID
18 AT THE JAIL, THAT’S UP TO THE JAIL, THAT’S NOT UP TO DAVID,
19 CORRECT?
20 A.:THAT’S CORRECT.
21 MR. FELDMAN: NOTHING FURTHER.
22 THE COURT: CROSS-EXAMINATION.
23
24 CROSS-EXAMINATION
+
25 BY MR. DUSEK:
26 Q.:DID HE TELL YOU WHAT HIS LIVING CONDITIONS WERE IN
27 JAIL?
28 A.:I DIDN’T ASK.
10314
1 Q.:YOU KNOW HE TOOK HIS KIDS TO SCHOOL?
2 A.:YES, I DO.
3 Q.:HOW DO YOU KNOW THAT?
4 A.:BECAUSE I OBSERVED IT.
5 Q.:HOW OLD WERE THEY —
6 A.:IN FACT, I MAY HAVE ON OCCASION GONE WITH HIM.
7 Q.:HOW OLD WERE THE KIDS WHEN HE TOOK THEM TO SCHOOL?
8 A.:YOUNG.
9 Q.:WHICH MEANS?
10 A.:GRADE SCHOOL AGE, PRETEENS.
11 Q.:WOULD HE TAKE THEM BY THE HAND AND WALK ‘EM DOWN
12 THE STREET TO THE SCHOOL?
13 A.:NO. IN THE AREA WHEN WE WERE AT, TREE RIDGE
14 TERRACE, IT WASN’T WALKING DISTANCE TO SCHOOL.
15 Q.:HOW WOULD HE GET ‘EM TO SCHOOL?
16 A.:HE WOULD TAKE THEM IN AN AUTOMOBILE OR HE WOULD
17 TAKE THEM TO SOMEBODY ELSE’S VEHICLE WHO WAS TAKING THEM TO
18 SCHOOL, AND THIS WASN’T EVERY DAY. IT WAS ONLY, YOU KNOW,
19 OCCASIONALLY.
20 Q.:THAT SEEMED TO BE SOMETHING HE ENJOYED?
21 A.:ABSOLUTELY.
22 Q.:WHY? HOW COULD YOU TELL HE ENJOYED TAKING HIS KIDS
23 TO SCHOOL?
24 A.:BECAUSE HE DID IT ENTHUSIASTICALLY AND DID IT LIKE
25 CARINGLY. IT WASN’T LIKE IT WAS A CHORE TO HIM.
26 Q.:SOMETHING THAT HE REALLY LOOKED FORWARD TO AS A
27 PARENT, WOULD YOU AGREE?
28 A.:YES.
10315
1 Q.:SOMETHING THAT HE WOULD HATE TO HAVE TAKEN AWAY
2 FROM HIM?
3 A.:YES.
4 Q.:HOW LONG DID HE GET TO DO THAT?
5 A.:I CAN’T ANSWER THAT.
6 Q.:HE GOT TO DO IT AS LONG AS HE CHOSE TO DO IT,
7 DIDN’T HE?
8 A.:POSSIBILITY.
9 MR. FELDMAN: YOUR HONOR, THAT’S ARGUMENTATIVE.
10 THE COURT: IT’S GETTING VERY CLOSE. I’LL ALLOW THE LAST
11 ANSWER.
12
13 BY MR. DUSEK:
14 Q.:DID ANYTHING EVER PREVENT HIM FROM TAKING HIS KIDS
15 TO SCHOOL?
16 A.:I’M SURE HIS WORK PREVENTED IT.
17 Q.:ANYTHING ELSE?
18 A.:I DON’T — I CAN’T TELL YOU THAT.
19 Q.:YOU’RE IN FLORIDA NOW, IS THAT RIGHT?
20 A.:THAT IS CORRECT.
21 Q.:HOW LONG HAVE YOU BEEN IN FLORIDA?
22 A.:I’VE BEEN IN FLORIDA NEARLY TWO YEARS.
23 Q.:HAVE YOU SEEN HIM IN THAT PERIOD OF TIME?
24 A.:UNFORTUNATELY, I HAVEN’T SEEN HIM IN THAT PERIOD OF
25 TIME. I’VE ONLY COMMUNICATED WITH HIM VIA E-MAIL, MAIL,
26 TELEPHONE, THAT TYPE OF THING.
27 Q.:SO YOU HAVE NOT HAD ANY FACE-TO-FACE CONTACT WITH
28 HIM SINCE ABOUT THE YEAR 2000?
10316
1 A.:THAT’S CORRECT, OTHER THAN DAY BEFORE YESTERDAY.
2 Q.:ALL RIGHT.
3 WHEN WAS THE LAST TIME YOU HAD FACE-TO-FACE CONTACT
4 WITH HIM?
5 A.:PROBABLY THE WEEK I LEFT.
6 Q.:LEFT WHERE AND WHEN?
7 A.:PROBABLY THE WEEK THAT I LEFT CALIFORNIA TO
8 TRAVERSE TO FLORIDA. IN FACT, I KNOW THAT I HAD DINNER WITH HE
9 AND HIS GIRLFRIEND AT THAT TIME.
10 Q.:WHO WAS THE GIRLFRIEND? DO YOU REMEMBER THE FIRST
11 NAME?
12 A.:YES, I DO.
13 Q.:WAS IT SUSAN?
14 A.:IT WAS.
15 Q.:WAS HE ENGAGED TO HER AT THAT TIME?
16 A.:I DON’T RECALL.
17 Q.:YOU WERE LIVING ON TREE — TREE RIDGE BEFORE YOU
18 MOVED TO FLORIDA?
19 A.:THAT IS CORRECT.
20 Q.:WAS HE STILL LIVING ON TREE RIDGE?
21 A.:NO, HE WAS NOT.
22 Q.:WHEN HAD HE MOVED OUT?
23 A.:GOSH, THAT WAS 15 YEARS AGO. I DON’T RECALL
24 EXACTLY. I WOULD SAY TWO YEARS EARLIER.
25 Q.:THE PICTURES THAT YOU HAVE IN FRONT OF YOU THAT YOU
26 WERE SHOWN, ONE OF THEM LOOKS LIKE IT’S MARKED AS 237, A BUNCH
27 OF FOLKS SITTING THERE NEAR THE COKE MACHINE. WHEN WAS THAT
28 TAKEN ABOUT?
10317
1 A.:BY THE LOOKS OF MY AGE AT THAT POINT, I WOULD HAVE
2 TO SAY THAT THAT WAS PROBABLY TAKEN IN THE EARLY YEARS THAT I
3 KNEW DAVID, BUT I’M ONLY GUESSING. I HONESTLY CAN’T TELL YOU.
4 Q.:EARLY YEARS MEANING WHAT TIME?
5 A.:OH, LET’S SAY
9 0S, EARLY
9 0S. I’M GUESSING.
6 Q.:236 LOOKS LIKE — IS IT MR. WESTERFIELD SITTING
7 THERE BY HIMSELF?
8 A.:YES. HE IS SITTING BY HIMSELF AS IT’S POSED IN THE
9 PICTURE. THE REST OF THE PEOPLE WOULD HAVE BEEN JUST OUT OF
10 VIEW OF THE CAMERA.
11 Q.:HOW OLD IS THAT PICTURE?
12 A.:I WOULD SAY THIS PICTURE WAS PROBABLY TAKEN LATE
13
9 0S.
14 Q.:ALL RIGHT.
15 PARTY GOING ON?
16 A.:CAMPING. IT WAS A CAMPING TRIP.
17 Q.:DRINKING?
18 A.:PROBABLY SOME.
19 Q.:ALL RIGHT.
20 AND EXHIBIT 235, ANOTHER PHOTOGRAPH, LOOKS LIKE
21 SOMEBODY ON A LAWN AREA?
22 A.:YES.
23 Q.:HOW OLD IS THAT?
24 A.:I WOULD SAY AGAIN, AGES WOULD SAY THAT THAT’S
25 PROBABLY EARLY
9 0S, MID
9 0S.
26 Q.:ALL RIGHT.
27 YOU TALKED ABOUT THE DEFENDANT’S BEING VERY
28 CONCERNED ABOUT THE SAFETY OF THE KIDS?
10318
1 A.:YES.
2 Q.:WOULD HE CHECK ON ‘EM LIKE WHEN THEY WERE SLEEPING?
3 A.:YES, HE WOULD.
4 Q.:HOW DO YOU KNOW?
5 A.:WELL, BECAUSE I WOULD BE THERE. IF I WAS AT A
6 FUNCTION AT HIS HOME AND THE KIDS WERE SLEEPING, I WOULD NOTICE
7 THAT HE WOULD LEAVE AND GO CHECK ON THEM, OR HE MIGHT SUGGEST TO
8 JACKIE THAT SHE DO SO, OR ONE OF US MIGHT DO SO.
9 IN THEIR HOME, AS AN EXAMPLE, IS A MULTI-LEVEL
10 HOME, AND SOME OF THE RECREATION AREA WAS ON THE SAME FLOORS
11 WHERE THE BEDROOMS WERE, SO NOISE LEVELS WOULD BE KEPT DOWN AT
12 THAT POINT WHEN THE CHILDREN HAD GONE TO BED, AND PEOPLE WOULD
13 PERIODICALLY CHECK IN ON THEM.
14 Q.:SO IT WOULD BE NOT UNUSUAL FOR HIM TO GO CHECK ON
15 THE KIDS WHILE THEY WERE SLEEPING?
16 A.:IT WOULD NOT BE UNUSUAL.
17 Q.:WOULD HE DO THAT BY HIMSELF?
18 A.:SOMETIMES.
19 Q.:DID YOU HAVE ANY GIRLS?
20 A.:DO I HAVE ANY GIRLS?
21 Q.:YES.
22 A.:NO, I DO NOT. I HAVE TWO BOYS.
23 MR. DUSEK: THANK YOU, SIR.
24 THE COURT: ANYTHING FURTHER?
25 MR. FELDMAN: THANK YOU. NO.
26 THE COURT: ALL RIGHT. IS THIS WITNESS TO BE EXCUSED?
27 MR. FELDMAN: NO OBJECTION, YOUR HONOR.
28 THE COURT: ALL RIGHT. THANK YOU FOR COMING IN, SIR.
10319
1 YOU’RE FREE TO LEAVE OR YOU CAN REMAIN IN THE COURTROOM AS YOU
2 SO DESIRE. HOWEVER, PLEASE DO NOT DISCUSS YOUR TESTIMONY WITH
3 ANYONE UNTIL THE MATTER’S CONCLUDED, OKAY?
4 COULD YOU KINDLY TAKE THOSE PHOTOGRAPHS AND HAND
5 THEM TO MR. FELDMAN ON THE WAY OUT?
6 THE WITNESS: CERTAINLY.
7 THE COURT: THANK YOU.
8
9 -KATHLEEN MILLER,
+
10 DEFENDANT’S WITNESS, HAVING BEEN SWORN, TESTIFIED AS FOLLOWS:
11
12 THE COURT: ALL RIGHT. PLEASE HAVE A SEAT, MA’AM.
13 THE CLERK: WOULD YOU PLEASE STATE YOUR NAME AND SPELL IT
14 FOR THE RECORD?
15 THE WITNESS: KATHLEEN MILLER, K-A-T-H-L-E-E-N, MILLER,
16 M-I-L-L-E-R.
17 MR. FELDMAN: PROCEED YOUR HONOR?
18 THE COURT: YES.
19
20 DIRECT EXAMINATION
+
21 BY MR. FELDMAN:
22 Q.:GOOD MORNING, MA’AM.
23 DO YOU KNOW DAVID WESTERFIELD?
24 A.:YES, I DO.
25 Q.:HOW DO YOU KNOW HIM?
26 A.:I MET DAVID WHENEVER WE FIRST MOVED TO POWAY AND
27 WERE BUILDING OUR HOME ON TREE RIDGE TERRACE. WE STARTED DOING
28 THAT IN THE END OF 1986.
10320
1 Q.:THE GENTLEMAN WHO’S STILL IN THE COURTROOM, ANY
2 RELATION?
3 A.:I DON’T SEE MY HUSBAND.
4 Q.:MAYBE HE LEFT AND — I’M SORRY, BUT THE GENTLEMAN
5 THAT JUST TESTIFIED?
6 A.:OH, HE’S OVER THERE. IT’S MY HUSBAND.
7 Q.:OKAY. JUST TRYING TO ESTABLISH THE RELATIONSHIP.
8 A.:I’M SORRY.
9 Q.:SO YOU FIRST MET DAVID WESTERFIELD WHEN YOU AND
10 YOUR HUSBAND AND FAMILY FIRST MOVED TO — I’M SORRY — TREE
11 RIDGE?
12 A.:TREE RIDGE TERRACE IN POWAY.
13 Q.:DID YOU BECOME FRIENDS WITH THE WESTERFIELDS?
14 A.:YES, WE DID. WHEN WE MOVED TO POWAY WE MET DAVID
15 AND JACKIE AND LISA, NEAL AND WE IMMEDIATELY BECAME VERY CLOSE
16 FRIENDS WITH THEM. WE JUST FOUND THAT WE JUST HAD A LOT OF
17 THINGS IN COMMON; A LOT OF FAMILY VALUES, FAMILY THINGS THAT WE
18 BOTH, YOU KNOW, WOULD HAVE DID, SO WE IMMEDIATELY BECAME VERY
19 CLOSE FRIENDS THAT FIRST YEAR THAT WE MET THEM THERE.
20 Q.:WOULD MR. WESTERFIELD HELP YOU, FOR INSTANCE, HELP
21 WITH YOUR LAWNMOWER OR HELP WITH THE LANDSCAPING?
22 A.:OH, DAVID ALWAYS HELPED — HELPED US AND I THINK
23 EVERYBODY, YOU KNOW, WITH THINGS IN THE NEIGHBORHOOD, HELPING
24 WITH, YOU KNOW, SHARPENING. HE SHOWED THE KIDS HOW TO SHARPEN
25 THE LAWNMOWERS, JUST DOING EVERYTHING WITH US, ALWAYS BEING VERY
26 HELPFUL.
27 Q.:WOULD YOU HAVE DINNER FROM TIME TO TIME TOGETHER?
28 A.:OH, YES, YES. WE HAD A LOT OF FAMILY DINNERS
10321
1 AND —
2 Q.:AT YOUR HOUSE?
3 A.:AT OUR HOUSE AND GET-TOGETHERS AND, IN FACT,
4 WHEN — DAVID’S A GOOD ONE TO HAVE OVER FOR DINNER BECAUSE HE’S
5 THE FIRST ONE TO CLEAN UP, SO YOU ALWAYS HAVE TO SORT OF HOLD
6 YOUR PLATE DOWN. HE WOULD BE CLEANING UP, YOU KNOW, BEFORE WE
7 WERE DONE.
8 Q.:SO ESSENTIALLY THEN HE WOULD HELP YOU AROUND YOUR
9 HOUSE IN THAT MANNER?
10 A.:OH, YES, YES. DAVID WAS ALWAYS —
11 Q.:NOW, IF YOU’D GO ON VACATION WOULD YOU ASK DAVID
12 TO, FOR INSTANCE, I DON’T KNOW, KEEP AN EYE OUT ON YOUR HOUSE
13 JUST TO MAKE SURE NOTHING BAD HAPPENED?
14 A.:YES. IN FACT, WHENEVER WE’D GO ON VACATIONS DAVID
15 ALWAYS OFFERED TO CHECK THE POOL LEVEL. WE HAD A POOL AND A
16 JACUZZI. HE WOULD CHECK THE POOL LEVEL, MAKE SURE THAT THE
17 WATER LEVEL WASN’T BELOW LIKE THE SKIMMER LINE OR ANYTHING.
18 AND WE HAD A LOT OF EUCALYPTUS TREES, AND SO HE
19 WOULD MAKE SURE EVERYTHING WAS ALL RIGHT. AND WHEN WE WOULD
20 COME BACK FROM VACATIONS, ESPECIALLY LIKE IT WAS TWO OR THREE
21 WEEKS, THE POOL LEVEL WOULD BE PERFECTLY FINE BUT THE PATIO
22 WOULD BE SPOTLESS, HAD BEEN HOSED OFF, CLEANED, THE GLASS TOP
23 TABLES WOULD BE CLEANED OFF. IT WAS JUST TYPICAL DAVID. HE
24 WOULD GO ABOVE AND BEYOND, LIKE, IF HE WAS DOING SOMETHING FOR
25 YOU.
26 Q.:UM-HMM.
27 WITH REGARD TO WHEN YOUR FAMILIES WOULD SOCIALIZE,
28 WOULD HE DO THINGS LIKE PLAY TRIVIAL PURSUIT OR CARDS?
10322
1 A.:YES. THAT WAS ONE OF THE THINGS THAT I THINK
2 REALLY BROUGHT US CLOSE TO DAVID WAS THAT HE REALLY ENJOYED
3 THE — WE BOTH WERE REALLY INTO THE FAMILY DOING THINGS
4 TOGETHER, AND WE ALL ENJOYED GAMES AND WE PLAYED A LOT OF
5 TRIVIAL PURSUIT OR WHATEVER THE LATEST — I THINK WE ALL RAN TO
6 THE GAME KEEPER FOR THE LATEST GAME OF THE YEAR THAT CAME OUT
7 THAT YEAR AND WE PLAYED PICTIONARY.
8 DAVID HAD AN EASEL FOR PROBABLY HIS ENGINEERING
9 WORK, BUT HE BUILT A BIG WHITE BOARD SO THAT — AND THE CHILDREN
10 WOULD BE INCLUDED. I HAVE TWO SONS AND —
11 Q.:I’D LIKE TO DIRECT YOUR ATTENTION TO WHAT’S BEEN
12 PREVIOUSLY MARKED AS A PHOTOGRAPH THAT’S BEEN PREVIOUSLY MARKED
13 238.
14 FIRST OF ALL, DO YOU RECOGNIZE THE PHOTO?
15 A.:YES.
16 Q.:CAN YOU TELL US WHAT DOES THE PHOTO DEPICT?
17 A.:THAT’S MY — A SURPRISE 50TH BIRTHDAY PARTY THAT
18 DAVID HAD FOR ME, AND TOTALLY SURPRISED ME AND HAD ALL OUR
19 FRIENDS AND MY FAMILY. HE HAD MY SONS COME HOME FROM — THEY
20 WERE AWAY AT COLLEGE, AND HE MADE SURE THAT THEY GOT THERE. I
21 THINK MY YOUNGER SON, HE WAS LIKE, YOU KNOW, UP AT HUMBOLT, LIKE
22
14 HOURS AWAY, BUT DAVID ARRANGED — GOT EVERYBODY TO COME, AND
23 HAD MY SONS, YOU KNOW, AT HIS HOUSE, SO THAT WHEN I WAS CALLED
24 OVER THERE FOR, YOU KNOW, THE SURPRISE, THAT EVERYBODY WAS THERE
25 AND IT WAS A REALLY GREAT FAMILY SURPRISE FOR MY BIRTHDAY.
26 Q.:YOUR YOUNGEST SON IS A. J.?
27 A.:YES, UM-HMM.
28 (MARKED FOR ID: = TRIAL EX. 238 – PHOTO )
10323
1 Q.:DO YOU CARE WHAT HAPPENS TO MR. WESTERFIELD?
2 A.:OH, I REALLY DO. HE’S BEEN A REALLY SPECIAL PART
3 OF MY LIFE, MY HUSBAND, OUR CHILDREN. HE’S ALWAYS BEEN THERE
4 FOR US. AS I SAID, I HAVE TWO SONS, AND DAVID WAS ONE OF THOSE
5 PEOPLE THAT — WHEN WE MOVED THERE MY CHILDREN WERE TEENAGERS,
6
14 AND
16 I THINK, AND SO IT WAS THOSE YEARS WHEN YOU’RE GOING
7 THROUGH, YOU KNOW, WITH THE KIDS HIGH SCHOOL, COLLEGE, THAT
8 DAVID TOOK A GREAT INTEREST IN MY CHILDREN, THAT SITTING DOWN
9 DISCUSSING THEIR GOALS, THEIR DREAMS, WHAT THEY WANTED TO DO
10 WITH THEIR CAREERS, REALLY ENCOURAGED — ENCOURAGED MY CHILDREN.
11 AND, YOU KNOW, HE WAS JUST THAT EXTRA PERSON THAT YOU’RE LUCKY
12 TO HAVE IN YOUR CHILDREN’S LIVES THAT, YOU KNOW, WHETHER IT’S A
13 TEACHER OR A COACH, WE HAD A VERY GOOD FRIEND AND THAT WAS
14 DAVID. AND HE DEFINITELY INFLUENCED THE GOALS OF MY CHILDREN
15 AND ENCOURAGED THEM TO STUDY HARD, COLLEGE. HE WAS THERE FOR
16 ‘EM ALL THE WAY.
17 MR. FELDMAN: THANK YOU, MA’AM.
18 THE COURT: ALL RIGHT.
19 CROSS-EXAMINATION.
20
21 CROSS-EXAMINATION
+
22 BY MR. DUSEK:
23 Q.:YOU MENTIONED THE TERM "FAMILY VALUES"?
24 A.:YES.
25 Q.:HOW MANY TIMES HAS THE DEFENDANT BEEN MARRIED, TO
26 YOUR KNOWLEDGE?
27 A.:TWICE.
28 Q.:DO YOU KNOW WHY THE FIRST ONE ENDED IN DIVORCE?
10324
1 A.:I DIDN’T KNOW DAVID THEN. I DON’T KNOW.
2 Q.:DO YOU KNOW WHY THE SECOND ONE?
3 A.:DAVID — NO. DAVID AND JACKIE NEVER DISCUSSED THE
4 REASON FOR THE DIVORCE. THEY REALLY WANTED TO BE THERE FOR
5 THEIR CHILDREN, AND NEITHER ONE OF THEM EVER SAID ANYTHING BAD
6 ABOUT EACH OTHER, AND WE STAYED FRIENDS WITH BOTH OF THEM AFTER.
7 Q.:SO YOU DIDN’T KNOW WHAT HAPPENED OVER IN THEIR
8 HOUSE WHEN THE PARTY WAS OVER?
9 A.:NO.
10 Q.:WHEN WAS THE LAST TIME YOU SAW HIM?
11 A.:SATURDAY.
12 Q.:BEFORE THAT?
13 A.:WE MOVED IN THE END OF OCTOBER OF 2000, AND WE MET
14 DAVID AND HAD DINNER. WE RAN INTO HIM AT ISLANDS AND HAD DINNER
15 WITH HIM. HE WASN’T ABLE TO COME TO MY GOING AWAY PARTY. HE
16 HAD A PREVIOUS COMMITMENT, BUT HE SENT ME FLOWERS AND AN
17 ARRANGEMENT FOR — THE CENTERPIECE FOR THE TABLE.
18 Q.:WHEN WAS THAT?
19 A.:THAT WOULD HAVE BEEN IN OCTOBER OF 2000.
20 Q.:HE WAS VERY GENEROUS WITH HIS MONEY, WASN’T HE?
21 A.:WELL, YOU MEAN FOR SENDING ME THE FLOWERS? YEAH,
22 HE ALWAYS DID KIND THINGS LIKE THAT, YES.
23 Q.:AND HE’D BUY YOU LOTS OF THINGS TO HELP YOU OUT?
24 A.:I MEAN, I THINK CHRISTMAS GIFTS — OR WE EXCHANGED
25 GIFTS. I MEAN, I THINK WE DID FAMILY TYPE THINGS TOGETHER. I
26 MEAN, HE DIDN’T —
27 Q.:HOW ABOUT THE 50TH BIRTHDAY THAT YOU HAD?
28 A.:YES.
10325
1 Q.:DID HE PAY FOR YOUR KIDS TO COME DOWN?
2 A.:NO, NO. MY CHILDREN DROVE DOWN FROM THEIR
3 RESPECTIVE SCHOOLS.
4 Q.:SO HE DIDN’T PAY FOR THAT?
5 A.:NO.
6 Q.:HE JUST LET THEM KNOW THERE WAS A PARTY GOING ON?
7 A.:YES, YES, BECAUSE HE KNEW THAT MY CHILDREN WOULD
8 WANT TO BE THERE, AND WE ALWAYS DID FAMILY THINGS TOGETHER, SO
9 HE LET THEM KNOW THAT HE WAS HAVING A SURPRISE PARTY AND WOULD
10 THEY BE ABLE TO COME.
11 Q.:ALL RIGHT.
12 SO HE HAD THE PARTY AND LET YOUR KIDS KNOW, HEY —
13 A.:HE LET THEM STAY OVER THERE SO THAT I WOULDN’T SEE
14 THEM BEFORE THE PARTY, YOU KNOW, WHEN THEY CAME DOWN.
15 Q.:THE KIDS CAME DOWN ON THEIR OWN?
16 A.:YES. THEY BOTH DROVE DOWN SEPARATELY, YES.
17 Q.:WAS HE LIVING ON MOUNTAIN PASS WHEN YOU LAST SAW
18 HIM?
19 A.:YES, HE WAS.
20 Q.:DID YOU TALK TO ANY OF HIS NEIGHBORS THERE?
21 A.:NO. I NEVER MET ANY OF HIS NEIGHBORS, NO.
22 Q.:DIDN’T REFER TO ANY OF THOSE NEIGHBORS TO SEE
23 HOW —
24 MR. BOYCE: OBJECTION, SCOPE AND RELEVANCE.
25 THE COURT: SUSTAINED.
26 MR. DUSEK: NOTHING FURTHER.
27 THE COURT: ANYTHING FURTHER?
28 MR. FELDMAN: NO. THANK YOU.
10326
1 THE COURT: ALL RIGHT. IS THIS WITNESS TO BE EXCUSED?
2 MR. FELDMAN: NO OBJECTION.
3 THE COURT: ALL RIGHT. MA’AM, YOU’RE FREE TO LEAVE THESE
4 PROCEEDINGS. IF YOU CAN FIND A SEAT YOU’RE WELCOME TO STAY.
5 HOWEVER, PLEASE DO NOT DISCUSS YOUR TESTIMONY WITH ANYONE UNTIL
6 THE MATTER’S CONCLUDED, OKAY?
7 THE WITNESS: ALL RIGHT. THANK YOU.
8 THE COURT: ALL RIGHT.
9 COUNSEL, WE ARE GOING TO HAVE TO TAKE A SHORT BREAK
10 TO ALLOW THE REPORTERS TO TRANSCEND ONE TO THE OTHER BECAUSE
11 WE’RE IN A TWO HOUR GAP AND I CAN’T ALLOW THAT TO OCCUR.
12 WE’LL TAKE A VERY SHORT BREAK, LADIES AND
13 GENTLEMEN.
11 :15. REMEMBER THE ADMONITION NOT TO DISCUSS YOUR
14 TESTIMONY, NOR FORM NOR EXPRESS ANY OPINION ON THE MATTER UNTIL
15 IT IS SUBMITTED TO YOU. WE’LL BE IN RECESS UNTIL
11 :15.
11 :15.
16 (AT
11 :04 A.M. THE COURT WAS IN
RECESS UNTIL
11 :15 A.M.)
17
