Transcript of David Westerfield preliminary hearing – March 11, 2002
SAN DIEGO, CALIFORNIA; MONDAY, 3-11-02; 10:15 A.M.
WITNESSES:
Lieutenant Jim Collins, Dr. Brian Blackbourne, Dr. Norm Sperber
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1
2 -0-
3 (THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT.)
4 THE COURT: GOOD MORNING. THANK YOU FOR YOUR
5 PATIENCE. WE HAD SOME LOGISTICS PROBLEMS.
6 HOPEFULLY, THEY WON’T REOCCUR.
7 THIS IS THE PEOPLE OF THE STATE OF
8 CALIFORNIA VERSUS DAVID WESTERFIELD.
9 WHO IS HERE FOR THE PEOPLE, PLEASE?
10 MR. DUSEK: JEFF DUSEK FOR THE PEOPLE.
11 MR. CLARKE: GEORGE CLARKE FOR THE PEOPLE, YOUR
12 HONOR.
13 THE COURT: FOR THE DEFENSE?
14 MR. FELDMAN: YOUR HONOR, STEVEN FELDMAN
15 APPEARING ON BEHALF OF DAVID WESTERFIELD, WHO IS
16 PRESENT AND BEFORE THE COURT.
17 MR. BOYCE: ROBERT BOYCE FOR MR. WESTERFIELD,
18 WHO IS PRESENT, YOUR HONOR.
19 THE COURT: THANK YOU.
20 AND WE HAVE AN ATTORNEY FOR THE POLICE
21 DEPARTMENT, DO WE NOT?
22 MR. COOPER: PAUL COOPER ON BEHALF OF THE
23 SAN DIEGO POLICE DEPARTMENT.
24 THE COURT: MR. COOPER, WE HAVE THE MOTION THAT
25 WAS FILED BY THE DEFENSE SOMETIME LATE LAST WEEK
26 REQUESTING CERTAIN RELIEF. I’LL APOLOGIZE TO YOU
27 AHEAD OF TIME, I HAVE NOT SEEN ANY RESPONSIVE
28 PAPERS.
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1 DID YOU FILE ANY?
2 MR. COOPER: NO, YOUR HONOR.
3 THE COURT: BY NOT FILING ANY, MAY I ASSUME YOU
4 HAVE NO OBJECTION TO AN ORDER?
5 MR. COOPER: NO, NO OBJECTION, YOUR HONOR.
6 THE COURT: THEN THE ORDER REQUESTED BY THE
7 DEFENSE PRECLUDING ANY POLICE DEPARTMENT OFFICERS OR
8 OFFICIALS OR INVESTIGATORS FROM CONTACTING
9 MR. WESTERFIELD WITH REGARD TO THIS CASE IS GRANTED.
10 MR. FELDMAN: ONE SMALL, MINOR POINT. THANK YOU
11 VERY MUCH, YOUR HONOR, FOR THE ORDER. IN THE CRUX
12 OF DISCOVERY THAT’S BEEN PROVIDED, WE WERE PROVIDED
13 AND AT LEAST OBTAINED LATE LAST NIGHT AND REVIEWED
14 DISCOVERY PAGE 1299. I’VE ALREADY CALLED THIS TO
15 THE ATTENTION OF MR. DUSEK AND SHOWN COUNSEL FOR THE
16 POLICE DEPARTMENT.
17 IT DOES APPEAR THAT THE DETECTIVES WENT
18 WITH AN AUDIO TAPE CASSETTE WHICH HAS BEEN CHECKED
19 INTO EVIDENCE. WE DO NOT KNOW THE EXTENT TO WHICH
20 THEIR ILLEGAL ACCESS OR ATTEMPTED ACCESS TO OUR
21 CLIENT — WE DON’T KNOW WHETHER OR NOT AND HOW THAT
22 WAS MEMORIALIZED.
23 WHAT WE DO KNOW IS THAT THERE WAS AN AUDIO
24 TAPE. IT’S CHECKED INTO EVIDENCE WITH THE POLICE
25 DEPARTMENT AND WE HAVE NOW REQUESTED THAT THAT BE
26 PRODUCED SO THAT WE CAN ADDRESS THE ISSUE OF WHETHER
27 OR NOT FURTHER SANCTIONS ARE APPROPRIATE.
28 THE COURT: COUNSEL, ISN’T THAT PART OF YOUR
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1 NUMEROUS MOTIONS THAT YOU FILED ON THE 11TH?
2 MR. FELDMAN: I DON’T THINK WE RAISED THE ISSUE
3 THAT THEY HAD FOUND THE TAPE —
4 THE COURT: BUT I THOUGHT THAT YOU ASKED FOR
5 WHATEVER THEY HAD. AND IF YOU DIDN’T, I WOULD BE
6 SURPRISED.
7 NOW, LET ME MAKE THIS SUGGESTION TO YOU:
8 WE’RE NOT AT THE TRIAL STAGE. I DON’T SEE THAT
9 WHATEVER HAPPENED OR DIDN’T HAPPEN IS GOING TO HAVE
10 ANY EFFECT ON THE PRELIMINARY HEARING. IT IS MY
11 SUGGESTION THAT YOU COMMUNICATE WITH THE DISTRICT
12 ATTORNEY AND THE POLICE DEPARTMENT AND RESOLVE THIS
13 ISSUE. I THINK EVERYBODY KNOWS WHAT THE LAW IS. SO
14 SEE IF YOU CAN GET IT RESOLVED. IF FOR SOME REASON
15 YOU BELIEVE IT’S GOING TO HAVE SOME EFFECT ON THE
16 PRELIMINARY HEARING, YOU LET ME KNOW. WE ARE JUST
17 STARTING.
18 MR. FELDMAN: THANK YOU, YOUR HONOR.
19 MR. COOPER: THANK YOU, YOUR HONOR.
20 THE COURT: MAY I ASK YOU COOPERATE? I KNOW YOU
21 WILL.
22 MR. COOPER: YES.
23 THE COURT: AND TALK. THESE ARE PROFESSIONALS
24 HERE, SO I’M NOT WORRIED ABOUT THAT. THANK YOU.
25 I THEN HAVE A SERIES OF MOTIONS THAT WERE
26 FILED THIS MORNING. I UNDERSTAND THAT THE DISTRICT
27 ATTORNEY’S OFFICE WAS SERVED WITH THESE DOCUMENTS.
28 I DON’T KNOW EXACTLY WHEN.
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1 MR. DUSEK: PROBABLY 15 MINUTES AGO.
2 THE COURT: OH, ALL RIGHT. I WOULD ASSUME,
3 ALTHOUGH MAYBE I SHOULDN’T, THAT THE DISTRICT
4 ATTORNEY WOULD LIKE SOME TIME TO AT LEAST READ THEM
5 BEFORE RESPONDING.
6 IS THAT FAIR?
7 MR. DUSEK: ON THESE MOTIONS, YOUR HONOR, I
8 THINK THEY CAN BE RESOLVED RIGHT NOW.
9 THE COURT: OKAY. THAT’S GOOD.
10 MR. FELDMAN: YOUR HONOR, I DID COMMUNICATE THE
11 CONTENTS OF THE MOTIONS TO THE D.A. YESTERDAY.
12 THE COURT: I HAD SOME UNDERSTANDING THAT THAT
13 WAS GOING ON. ALL RIGHT. SO LET’S TAKE THEM UP AND
14 ONE BY ONE.
15 COUNSEL?
16 MR. FELDMAN: YOUR HONOR, WITH REGARD TO
17 NUMBER ONE, MR. CLARKE THIS MORNING PROVIDED ME WITH
18 THE REQUESTED INFORMATION FROM THE COUNTY CORONER.
19 HOWEVER, COUNSEL FOR THE SHERIFF’S DEPARTMENT
20 ADVISED THAT THEY HAD PROVIDED A RESPONSE TO THE
21 SUBPOENA, THE COUNTY JAIL RECORDS, BUT WE DON’T KNOW
22 WHERE THEY ARE IN THE BUILDING.
23 THE COURT: ALL RIGHT. WELL, THEY’VE COMPLIED.
24 BECAUSE THIS PRELIMINARY HEARING, THE LOCATION OF
25 THIS PRELIMINARY HEARING HAS CHANGED SEVERAL TIMES
26 TO ACCOMMODATE THE PEOPLE WHO WANT TO SEE THIS IN
27 THE PRESS, IT MAY BE BETWEEN MY DEPARTMENT AND THE
28 PRESIDING SUPERVISING CRIMINAL DEPARTMENT. WE’LL
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1 TRY TO SEARCH IT DOWN AND GET IT FOR YOU.
2 LET ME JUST CORRECT ONE MINOR THING. WE
3 ARE IN THE PRESIDING DEPARTMENT. BUT I HAVEN’T BEEN
4 ELEVATED. I AM A TRIAL JUDGE THAT HAPPENS TO BE
5 SITTING HERE.
6 ALL RIGHT. SO THAT TAKES CARE OF
7 NUMBER ONE; CORRECT?
8 MR. FELDMAN: YES, YOUR HONOR.
9 THE COURT: ALL RIGHT.
10 MR. DUSEK: I MIGHT INDICATE THAT THE DISCOVERY
11 IS SUPPOSED TO COME THROUGH THE DISTRICT ATTORNEY’S
12 OFFICE RATHER THAN COUNSEL SEEKING IT ON HIS OWN, AT
13 LEAST THROUGH THE POLICE AGENCIES AND THE AGENCIES
14 INVESTIGATING THIS CASE. WE HAVE COMPLIED AND GIVEN
15 HIM COPIES OF THE AT LEAST WHAT WE HAVE FROM
16 DR. SPERBER AND FROM DR. BLACKBOURNE. AND ALL OTHER
17 OF THESE TYPES OF DOCUMENTS, THE REQUEST SHOULD BE
18 MADE THROUGH US RATHER THAN INITIATING ON HIS OWN.
19 THE COURT: THAT’S PROBABLY A GOOD IDEA.
20 MR. FELDMAN: WELL, I SENT A 12-PAGE DISCOVERY
21 REQUEST LETTER THAT WAS FAXED OUT OF MY OFFICE ON
22 MARCH THE 2ND, YOUR HONOR. MAYBE I MISSPOKE. MAYBE
23 IT’S ONLY 11 PAGES.
24 THE COURT: COUNSEL, HERE WE ARE —
25 MR. FELDMAN: NINE.
26 THE COURT: — TEN DAYS INTO THIS CASE. AND I
27 CAN UNDERSTAND HOW YOU WANT TO COVER ALL BASES.
28 COUNSEL IS CORRECT.
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1 OKAY. THAT TAKES CARE OF ITEMS NUMBER ONE.
2 MR. FELDMAN: YES.
3 THE COURT: NUMBER TWO, HAVE YOU SPOKEN TO THE
4 SHERIFF’S DEPARTMENT ABOUT THIS FIRST?
5 MR. FELDMAN: I SPOKE WITH THE SHERIFF’S LIAISON
6 OFFICER, YOUR HONOR, MR. SHELBY.
7 THE COURT: MR. SHELBY I SAW.
8 MR. FELDMAN: YES. AND I WAS ADVISED —
9 THE COURT: YOU WERE ADVISED WHAT?
10 MR. FELDMAN: PROBABLY WOULD BE APPROPRIATE TO
11 TAKE THIS UP WITH YOUR HONOR.
12 THE COURT: DO YOU HAVE ANY OBJECTION FOR THIS
13 ONE TIME?
14 MR. FAIGIN: YOUR HONOR —
15 THE COURT: WHO ARE YOU?
16 MR. FAIGIN: ROBERT FAIGIN PRESENT ON BEHALF OF
17 THE SHERIFF’S DEPARTMENT.
18 THE COURT: OH, I’M SORRY. GIVE US YOUR NAME
19 AGAIN, PLEASE.
20 MR. FAIGIN: ROBERT FAIGIN.
21 THE COURT: OKAY.
22 MR. FAIGIN: AND WITH REGARD TO — WITH REGARD
23 TO NUMBER TWO, IT’S THE DEPARTMENT’S POSITION THAT
24 FOR PURPOSES OF SECURITY, THAT WE WOULD PREFER TO
25 HAVE THE INVESTIGATOR GO THROUGH THE NORMAL
26 SCREENING PROCESS SO THAT WE CAN ENSURE THE SAFETY
27 OF ALL OF THE MEMBERS OF THE BENCH AS WELL AS THE
28 PUBLIC, ET CETERA, IN THE COURTHOUSE.
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1 OBVIOUSLY, I UNDERSTAND IT’S A MATTER OF
2 CONVENIENCE; HOWEVER, I DON’T THINK IT’S IMPOSSIBLE
3 TO ASK THE INVESTIGATOR TO SIMPLY APPEAR A LITTLE
4 EARLIER TO TRY TO GET THROUGH THE SCREENING PROCESS
5 A LITTLE BIT QUICKER.
6 THE COURT: COUNSEL?
7 MR. FELDMAN: YOUR HONOR, MARION PASAS HAS BEEN
8 A DEFENSE INVESTIGATOR IN THIS COMMUNITY FOR BETTER
9 THAN A DECADE OR TWO. SHE WAS THE INVESTIGATOR IN
10 THE BRODERICK CASE. SHE’S BEEN AN INVESTIGATOR FOR
11 ME IN A NUMBER OF HIGH-PROFILE CASES. NEVER BEFORE
12 AND ONLY, FRANKLY, SINCE SEPTEMBER 11TH, HAS THE
13 SECURITY BEEN SO MAGNIFIED. SHE HAS PROPER
14 CREDENTIALS. SHE REPRESENTS NO SECURITY THREAT.
15 AND THE IDEA THAT WE SHOULD DELAY OUR ABILITY TO
16 INVESTIGATE OR DO OUR WORK BECAUSE IT’S MAYBE A
17 LITTLE BIT EASIER, IT DOESN’T SEEM FAIR.
18 THE COURT: I UNDERSTAND. HERE’S MY PROBLEM.
19 WHEN I FIRST READ THIS, MY GUT REACTION IS WHAT
20 DIFFERENCE WOULD IT MAKE. MAKES A LOT OF SENSE TO
21 ME. BUT WE ALL KNOW THAT AFTER 9-11 MANY THINGS
22 HAVE CHANGED.
23 SO I HAVE NO DOUBT THAT SHE IS AN
24 UPSTANDING MEMBER OF THIS COMMUNITY AND NO DANGER TO
25 ANYONE IN THIS COURTHOUSE. HOWEVER, ONCE WE START
26 MAKING EXCEPTIONS, I’M GOING TO HAVE ANOTHER
27 ATTORNEY IN HERE WITH SOME INVESTIGATOR THAT I’VE
28 KNOWN FOR 30 YEARS ASKING ME TO DO THE SAME THING.
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1 SO BECAUSE OF THE 9-11 SITUATION, THE FACT
2 THAT I TRY TO LEAVE SECURITY TO THE SECURITY PEOPLE,
3 YOU MAY KNOW THAT I DIDN’T HAVE MUCH TO DO WITH THE
4 SECURITY ARRANGEMENT FOR TODAY. I LEFT IT TO THEM.
5 UNLESS THERE WAS A PROBLEM.
6 I UNDERSTAND YOUR REQUEST. I RESPECT YOUR
7 REQUEST. I RESPECT YOUR INVESTIGATOR. BUT BECAUSE
8 OF THE SECURITY PROBLEMS ENHANCED BY 9-11, I’M GOING
9 TO DENY THE REQUEST.
10 MR. FELDMAN: COULD YOU AT LEAST CONSIDER
11 ALLOWING HER TO MOVE AHEAD OF THE LINE SO SHE CAN
12 CLEAR SECURITY WITHOUT UNREASONABLE DELAY? THE
13 LINES HAVE DELAYED SOME OF US 15, 20 MINUTES.
14 THE COURT: I UNDERSTAND. MAYBE SHE CAN
15 ACCOMMODATE HERSELF BY GETTING HERE A LITTLE BIT
16 EARLY. THANK YOU.
17 NEXT ONE IS TO ADMONISH WITNESSES AGAINST
18 DISCUSSING THEIR TESTIMONY. LET’S JUST START WITH
19 THAT. NO ONE DISAGREES WITH THAT. WE’LL GET THEM
20 IN HERE. I’M SURE THAT YOU’VE ALREADY DONE THAT.
21 MR. DUSEK: THOSE THAT I’VE SPOKEN TO, I’VE
22 INFORMED.
23 THE COURT: DO YOU WANT THEM IN HERE SEPARATELY
24 SO THAT I CAN ADMONISH THEM?
25 THERE’S A SECOND PART OF YOUR MOTION. I
26 KNOW THAT. I WASN’T GETTING THERE. YOU KNOW ME.
27 YOU BOTH KNOW ME. I TAKE THINGS ONE STEP AT A TIME.
28 I TAKE THE EASY THINGS ONE STEP AT A TIME.
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1 DO YOU WANT ME TO CALL IN WHATEVER
2 WITNESSES WE HAVE HERE TODAY AT THE BEGINNING OF
3 THIS HEARING AND MAKE THE ADMONISHMENT?
4 MR. FELDMAN: YES.
5 THE COURT: OKAY. LET’S DO THAT.
6 WELL, LET’S BEFORE WE DO THAT, SO WE DON’T
7 HAVE THEM COME OUT AND IN.
8 YOU HAVE A SECOND PART.
9 MR. FELDMAN: YES, YOUR HONOR.
10 THE COURT: WHY DON’T YOU TELL US WHAT THE
11 SECOND PART OF YOUR REQUEST IS.
12 MR. FELDMAN: THE SECOND PART RELATES SOLELY TO
13 THE FACTS AND CIRCUMSTANCES OF THIS CASE, YOUR
14 HONOR. IT TURNS OUT, AS WE CAN ALL SEE, WE HAVE GOT
15 MORE MEDIA THAN ANY OF US I THINK ARE ACCUSTOMED TO.
16 BECAUSE OF THE SATURATION OF THE MEDIA, I’M
17 CONCERNED THAT WITNESSES THAT THE COURT ADMONISHES
18 WILL PICK UP PRECISELY THE SAME INFORMATION BY GOING
19 HOME AND WATCHING TELEVISION OR LISTENING TO THE
20 RADIO BECAUSE APPARENTLY THIS IS BEING COVERED LIVE.
21 SO THE DEFENSE IS REQUESTING THAT THE
22 COURT, IN ADDITION TO THE STANDARD ADMONITION,
23 INCREASE THE ADMONITION OR ENHANCE THE ADMONITION TO
24 DIRECT WITNESSES NOT TO READ NEWSPAPERS THAT
25 SPECIFICALLY FOCUS ON THE ARTICLE, NOT TO WATCH THE
26 TELEVISION COVERAGE OF THE CASE BECAUSE THEN THE
27 ADMONITION BECOMES USELESS, NOR TO LISTEN TO ANY
28 RADIO COVERAGE.
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1 THE COURT: AND YOU’RE TALKING ABOUT PRIOR TO
2 THEIR TESTIMONY?
3 MR. FELDMAN: I’M TALKING ABOUT PRIOR TO THEIR
4 TESTIMONY AND SUBSEQUENT TO THEIR TESTIMONY IF
5 THEY’RE RELEASED SUBJECT TO RECALL.
6 AND, FRANKLY, IF I COULD PERSUADE THE
7 COURT, I’D ASK THE COURT TO — I DON’T KNOW WHAT
8 YOU’RE JURISDICTION IS — INITIATE AN ORDER OR GRANT
9 AN ORDER THAT WOULD EXTEND THROUGHOUT THE ENTIRE
10 LITIGATION.
11 THE COURT: YOU KNOW I’M NOT ABOUT TO DO THAT.
12 MR. FELDMAN: WE HAVE GOT A GAG ORDER.
13 THE COURT: YOU KNOW THAT GAG ORDER IS GOOD
14 UNTIL SOMEBODY CHANGES IT, IF THEY WANT TO CHANGE
15 IT. OKAY. I’M NOT ABOUT TO MAKE ORDERS THAT EXIST
16 PAST THIS PRELIMINARY HEARING OTHER THAN THE GAG
17 ORDER, UNLESS THERE’S AN URGENT NEED, AND I’M NOT
18 ABOUT TO ADDRESS IT. WHOMEVER THE TRIAL JUDGE IS,
19 THAT’S A TRIAL JUDGE ISSUE.
20 WHAT’S YOUR POSITION, COUNSEL?
21 MR. DUSEK: WE HAVE NO OPPOSITION TO THEM BEING
22 TOLD TO AVOID THE MEDIA COVERAGE OF THIS CASE BEFORE
23 THEY TESTIFY. AFTER THEY TESTIFY, LIKE ANYONE ELSE,
24 THEY SHOULD BE ABLE TO LOOK AT WHATEVER THEY WANT.
25 THE COURT: ALL RIGHT. I AGREE. I’LL DO THAT.
26 ALL RIGHT.
27 NOW, THE NEXT REQUEST IS TO RETAIN
28 MR. WESTERFIELD AT CENTRAL JAIL DURING THE PENDENCY
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1 OF THIS LITIGATION.
2 MR. FELDMAN: YOUR HONOR, THERE HAVE BEEN
3 ONGOING DISCUSSIONS BETWEEN OUR OFFICE AND COUNSEL
4 FOR THE SHERIFF’S DEPARTMENT. I’D ASK THE COURT AT
5 THIS TIME TO TAKE IT OFF CALENDAR OR DEFER RULING.
6 IF IT BECOMES — IT’S NOT AN ISSUE AT THE MOMENT.
7 MY CONCERN IS THAT IT WOULD BE AN ISSUE IF THERE’S A
8 BINDOVER. WE WILL DISCUSS IT AND IF IT BECOMES
9 PROBLEMATIC, WE’LL PLAN TO COME BACK WITH YOUR
10 PERMISSION.
11 THE COURT: OKAY. ONCE THIS PRELIMINARY HEARING
12 IS OVER —
13 MR. FELDMAN: WE’VE GOT THIS 15-DAY
14 JURISDICTIONAL DAY NOTICE.
15 THE COURT: WE’RE ALL SUPERIOR COURT JUDGES.
16 MR. FELDMAN: I KNOW THAT.
17 THE COURT: SO YOU CAN COME BACK IN. ALL RIGHT.
18 MR. FELDMAN: THANK YOU.
19 THE COURT: JUST ON THAT ISSUE.
20 MR. FELDMAN: NO. NO. NO. I UNDERSTAND.
21 THANK YOU VERY MUCH, YOUR HONOR. I THINK
22 THAT’S ALL WE HAVE AT THIS POINT.
23 THE COURT: ALL RIGHT. I THINK WE’VE TAKEN CARE
24 OF ALL THOSE MOTIONS.
25 IS THERE ANYTHING THE DISTRICT ATTORNEY
26 WANTS TO SPEAK ABOUT IN TERMS OF A PRE-HEARING
27 ISSUES?
28 MR. DUSEK: ONE CONCERN, YOUR HONOR. THAT IS
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1 THE QUICKNESS IN WHICH WE ARE GETTING TO THE
2 PRELIMINARY HEARING, AND THAT THE DEFENSE HAS NOT
3 WAIVED TIME, WHICH IS THEIR RIGHT. BUT WE HAVE AT
4 LAST COUNT TURNED OVER 1,670 PAGES OF DISCOVERY,
5 ABOUT 42 TAPED INTERVIEWS, AND THREE VIDEOS, I
6 BELIEVE, ALONG WITH A WHOLE LOT OF PHOTOGRAPHS.
7 I AM WELL AWARE OF MR. FELDMAN’S REPUTATION
8 AND MR. BOYCE’S REPUTATION AS BEING EXTREMELY
9 COMPETENT. MY CONCERN, THOUGH, IS THAT BY GOING SO
10 QUICKLY TO THE PRELIMINARY HEARING THAT SOMEONE DOWN
11 THE ROAD IS LIABLE TO SECOND-GUESS THAT OPINION.
12 I’M SURE HE HAS TACTICAL REASONS FOR
13 PURSUING THE PRELIMINARY HEARING AT THIS POINT. I
14 DO NOT NEED TO KNOW WHAT THEY ARE, BUT I WOULD ASK
15 THAT THE COURT TAKE MR. FELDMAN AND MR. BOYCE INTO
16 CHAMBERS AND HAVE THEM ADVISE THE COURT AS TO THEIR
17 REASONS FOR DOING IT TO ENSURE A LATER REVIEWING
18 COURT, IF ONE BECOMES NECESSARY, THAT THERE ARE
19 LEGITIMATE REASONS FOR DOING THIS THIS QUICKLY.
20 THE COURT: COUNSEL?
21 MR. FELDMAN: YOUR HONOR, WELL, I APPRECIATE
22 COUNSEL’S CONCERNS AND HIS COMPLIMENTS,
23 MR. WESTERFIELD HAS A STATUTORY RIGHT. WE’RE JUST
24 DOING WHAT THE LAW REQUIRES US TO DO, YOUR HONOR.
25 WE’RE READY TO PROCEED. THE LAW SAYS TEN DAYS. THE
26 PROSECUTION IS READY. WE’RE READY. LET’S GO.
27 THE COURT: THANK YOU FOR YOUR REQUEST. IT’S AN
28 INTERESTING REQUEST, BUT I’M DECLINING TO ACCEPT
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1 YOUR INVITATION. I HAVE CONFIDENCE IN COUNSEL. I’M
2 SURE THAT MR. WESTERFIELD HAS BEEN ADVISED THAT HE
3 HAS A RIGHT TO HAVE A CONTINUANCE OF THIS
4 PRELIMINARY HEARING IF HIS ATTORNEYS FEEL THEY ARE
5 NOT PREPARED OR HE WANTS MORE TIME TO CONSIDER THE
6 EVIDENCE THAT THEY HAVE RECEIVED.
7 AND WE’LL PROCEED.
8 NOW, YOU WANTED ME TO ADMONISH WITNESSES?
9 MR. FELDMAN: YES, YOUR HONOR.
10 THE COURT: OKAY. CAN WE BRING THOSE WITNESSES
11 IN.
12 MR. DUSEK: WE HAVE THREE WITNESSES HERE THIS
13 MORNING. LIEUTENANT JIM COLLINS IS IN THE
14 COURTROOM. DR. BRIAN BLACKBOURNE AND DR. NORM
15 SPERBER ARE OUTSIDE.
16 THE COURT: I THINK WE OUGHT TO GET THEM IN
17 HERE, AND I’LL ADMONISH ALL OF THEM AT THE SAME
18 TIME.
19 (THE WITNESSES ENTERED THE COURTROOM.)
20 THE COURT: THANK YOU.
21 GENTLEMEN, PLEASE BE ADVISED THAT YOU ARE
22 ADMONISHED NOT TO DISCUSS YOUR TESTIMONY WITH ANYONE
23 PRIOR TO YOUR TESTIMONY, OTHER THAN COUNSEL OF
24 COURSE, NOR ARE YOU TO SPEAK TO OTHER WITNESSES, NOR
25 ARE YOU TO VIEW ANY MEDIA REPRESENTATION REGARDING
26 THIS CASE, MEDIA PUBLICATIONS, THAT INCLUDES RADIO,
27 TV, AND THE PRINT MEDIA, UNTIL YOU’RE RELEASED FROM
28 THE PRELIMINARY HEARING.
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1 UNDERSTOOD?
2 (ALL THREE WITNESSES RESPONDED AFFIRMATIVELY.)
3 THE COURT: THANK YOU VERY MUCH.
4 MR. DUSEK: THANK YOU.
5 THE COURT: I WILL TELL YOU THAT, I THINK YOU
6 ALREADY KNOW THAT THIS IS NOT MY NORMAL DEPARTMENT.
7 I FEEL COMFORTABLE HERE BUT I DON’T KNOW WHETHER OR
8 NOT MY VOICE CARRIES. NORMALLY I DON’T NEED A
9 MICROPHONE. APPARENTLY, MY VOICE IS CARRYING ALL
10 RIGHT. OKAY, I’M GETTING SOME GRUMBLES FROM THE
11 BACK. LET ME SEE. AS I SAID, THIS IS NOT MY
12 DEPARTMENT. OFF THE RECORD.
13 (PAUSE IN PROCEEDINGS.)
14 THE COURT: REMEMBER, THIS PRELIMINARY HEARING
15 IS FOR THE PARTIES. I’LL DO MY VERY BEST TO KEEP
16 EVERYONE ELSE IN A RANGE THAT THEY CAN HEAR MY
17 VOICE.
18 FIRST WITNESS.
19 MR. DUSEK: LIEUTENANT JIM COLLINS.
20
21 JAMES CLIFFORD COLLINS,
22 PEOPLE’S WITNESS, HAVING BEEN FIRST DULY SWORN,
23 TESTIFIED AS FOLLOWS:
24
25 THE COURT: PLEASE TAKE THE STAND.
26 PLEASE TELL US YOUR NAME.
27 THE WITNESS: JAMES CLIFFORD COLLINS,
28 C-O-L-L-I-N-S.
Page 15
1 THE COURT: THANK YOU.
2 MR. DUSEK: IS THE MICROPHONE ON?
3
4 DIRECT EXAMINATION
5 BY MR. DUSEK:
6 Q HOW ARE YOU EMPLOYED, SIR?
7 A I’M A LIEUTENANT WITH THE SAN DIEGO POLICE
8 DEPARTMENT.
9 Q HOW LONG HAVE YOU BEEN WITH THE POLICE
10 DEPARTMENT?
11 A 30 YEARS THIS MONTH.
12 Q HOW LONG HAVE YOU BEEN A LIEUTENANT?
13 A 12-AND-A-HALF YEARS.
14 Q WHAT IS YOUR CURRENT ASSIGNMENT IN THE
15 POLICE DEPARTMENT?
16 A I’M IN CHARGE OF THE ROBBERY AND SPECIAL
17 INVESTIGATIONS UNIT.
18 Q WHAT’S THE SPECIAL INVESTIGATIONS UNIT?
19 A HALF OF THE SPECIAL INVESTIGATIONS UNIT IS
20 ASSOCIATED WITH THE VIOLENT CRIMES TASK FORCE AND
21 FUGITIVE APPREHENSION. THE OTHER HALF INVESTIGATES
22 SPECIAL CRIMES, THINGS LIKE THAT.
23 MR. FELDMAN: EXCUSE ME, COUNSEL.
24 I’M SORRY, YOUR HONOR. I’M HAVING TROUBLE
25 HEARING THE WITNESS. I APOLOGIZE.
26 THE COURT: I’D ASK ONE OF THE BAILIFFS TO COME
27 UP AND WORK ON THE MICROPHONE, PLEASE.
28 (PAUSE IN PROCEEDINGS.)
Page 16
1 THE COURT: I’M ADVISED THERE ARE NO SPEAKERS IN
2 THIS COURTROOM, EXCEPT IN THE JURY BOX. AND WE’LL
3 JUST DO OUR BEST.
4 GO AHEAD.
5 BY MR. DUSEK:
6 Q TRY TO KEEP YOUR VOICE UP, IF YOU WOULD,
7 LIEUTENANT.
8 LET ME DIRECT YOUR ATTENTION BACK TO
9 FEBRUARY OF THIS YEAR. DID YOU BECOME INVOLVED IN
10 THE DANIELLE VAN DAM CASE?
11 A YES, I DID.
12 Q WHEN DID YOU FIRST BECOME INVOLVED IN THAT
13 CASE?
14 A ON FEBRUARY THE 2ND.
15 Q ABOUT WHAT TIME?
16 A MY INVOLVEMENT STARTED AT ABOUT 10:30 IN
17 THE EVENING.
18 Q HOW?
19 A I WAS WORKING AS A FIELD LIEUTENANT ON A
20 ROTATIONAL ASSIGNMENT FOR THE AREA SOUTH OF
21 INTERSTATE 8. I WAS PAGED BY THE WATCH COMMANDER TO
22 REPORT TO THE COMMAND CENTER BY CHIEF CREIGHTON.
23 Q WHAT’S THE COMMAND CENTER?
24 A THE COMMAND POST THAT WAS ON MOUNTAIN PASS
25 DRIVE AT THAT TIME.
26 Q WHERE IS THAT LOCATED IN OUR CITY?
27 A IN THE SABRE SPRINGS AREA.
28 Q WHAT WERE YOU TOLD TO DO?
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1 A WHEN I ARRIVED AT THE SCENE,
2 CHIEF CREIGHTON ASKED ME TO TAKE OVER THE
3 INVESTIGATION, AS THE ROBBERY LIEUTENANT IN CHARGE
4 OF KIDNAPPING INVESTIGATIONS.
5 Q CAN YOU EXPLAIN TO US WHY A ROBBERY
6 LIEUTENANT WOULD ASSUME CONTROL OVER A KIDNAPPING
7 CASE?
8 A THE ROBBERY SECTION IS IN CHARGE OF
9 INVESTIGATING ALL CRIMES INVOLVING COMMERCIAL
10 ROBBERY, RESIDENTIAL ROBBERY, BANK ROBBERIES, AND
11 KIDNAPPINGS WHERE THE VICTIM IS STILL OUTSTANDING.
12 Q WHAT DID YOU DO WHEN YOU ARRIVED?
13 A I GOT A BRIEFING FROM THE PEOPLE THAT HAD
14 BEEN AT THE COMMAND POST MOST OF THE DAY.
15 Q DO YOU KNOW HOW LONG THEY’D BEEN THERE?
16 A SERGEANT SHARON MCNAIR HAD BEEN THERE SINCE
17 SHORTLY AFTER TEN O’CLOCK IN THE MORNING.
18 Q AFTER YOU GOT YOUR BRIEFING, WHAT DID YOU
19 DO?
20 A I REQUESTED THAT WE HAVE PATROL UNITS FROM
21 THIRD WATCH COME UP TO THE AREA AND START CONDUCTING
22 A SEARCH OF DUMPSTERS IN THE AREA, ALONG SCRIPPS
23 POWAY PARKWAY, ANY COMMERCIAL AREAS IN THE IMMEDIATE
24 VICINITY. ALSO ASKED THE SHERIFF’S DEPARTMENT TO DO
25 LIKE SEARCHES IN THEIR JURISDICTION IN THE POWAY
26 AREA.
27 Q WHEN YOU SAY “THIRD WATCH,” WHAT DOES THAT
28 MEAN?
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1 A THAT’S THIRD WATCH PATROL. THEY WORK FROM
2 NINE O’CLOCK AT NIGHT TO SEVEN O’CLOCK IN THE
3 MORNING.
4 Q DID YOU DIRECT INDIVIDUALS TO SEARCH
5 VARIOUS AREAS?
6 A I DIRECTED THOSE OFFICERS TO SEARCH THOSE
7 AREAS, YES.
8 Q WHAT AREAS WERE SEARCHED, TO YOUR
9 KNOWLEDGE?
10 A TO MY KNOWLEDGE — THE ONES THAT I DIRECTED
11 OR WHAT HAD BEEN DONE EARLIER IN THE DAY?
12 Q ALL THAT YOU’RE AWARE OF.
13 A ALL THAT I’M AWARE OF?
14 EARLIER IN THE DAY, PATROL OFFICERS
15 RESPONDED TO THE CALL ALONG WITH RSVP OFFICERS,
16 RETIRED SENIOR VOLUNTEER PATROL OFFICERS. THEY
17 SEARCHED HOUSE-TO-HOUSE AND THE IMMEDIATE AREA
18 AROUND THE VICTIM’S RESIDENCE, APPROXIMATELY 200
19 HOUSES. WE HAD SHERIFF’S SEARCH AND RESCUE PEOPLE
20 COME OUT AND SEARCH THE CANYON AREAS AROUND THE
21 VICTIM’S HOME. THEY GOT THERE AROUND 7:30 IN THE
22 EVENING AND SEARCHED UNTIL TWO O’CLOCK IN THE
23 MORNING.
24 WE HAD THE POLICE HELICOPTER ABLE COME OUT 25 TO THE AREA. SHORTLY AFTER THE CALL CAME OUT, AT
26 TEN O’CLOCK IN THE MORNING, THEY DID A CANYON SEARCH
27 AND THEY ALSO DID A P.A. ANNOUNCEMENT NOTIFYING
28 RESIDENTS THAT WE WERE LOOKING FOR A MISSING GIRL
Page 19
1 AND HER DESCRIPTION.
2 Q P.A. ANNOUNCEMENT, THAT WOULD BE OUT OF THE
3 HELICOPTER DIRECTED TO THE GROUND?
4 A YES.
5 Q WHAT ELSE?
6 A WHEN IT GOT DARK, WE HAD THE ABLE
7 HELICOPTER COME BACK WITH THEIR FORWARD-LOOKING
8 INFRARED DEVICE TO SEARCH THE CANYON AGAIN TO SEE IF
9 THEY COULD FIND A PERSON IN THE CANYON BASED ON
10 THEIR BODY HEAT.
11 Q WHAT DOES THIS INFRARED CAMERA DO?
12 A LOCATES OBJECTS BASED ON THE HEAT THE
13 OBJECT PRODUCES; WHETHER IT’S ROCKS, A HUMAN BEING.
14 IT’S USED QUITE FREQUENTLY IN SEARCHING FOR
15 SUSPECTS.
16 Q WERE THERE OTHER SEARCHES?
17 A YES. THERE WERE SEARCHES THAT HAD BEEN
18 DONE FOR WEEKS AFTER THAT.
19 Q WHERE?
20 A OUT IN THE DESERT AREA. WE DID SOME
21 SEARCHING OUT THERE AROUND GLAMIS WITH THE POLICE
22 OFFICERS AND SHERIFF’S PERSONNEL. THERE WERE A LOT
23 OF VOLUNTEERS THAT SEARCH THE DESERT AREA, THE
24 AMERICAN SAND ASSOCIATES DID SEARCHES AT LEAST THREE
25 WEEKENDS, AS MANY AS 500 PEOPLE ON A WEEKEND
26 SEARCHING.
27 THERE WAS A SEARCH DONE BY VOLUNTEERS, THE
28 LAURA RECOVERY CENTER FROM TEXAS CAME OUT AND
Page 20
1 CONTACTED THE VAN DAMS AND ASSISTED THEM IN SETTING
2 UP A SEARCH CENTER OF THEIR OWN CALLED THE DANIELLE
3 RECOVERY CENTER. THEY DID SEARCHES AROUND THE POWAY
4 AREA, THE PENASQUITOS AREA, AND THEN THEY STARTED
5 FANNING OUT TO OTHER PARTS OF THE COUNTY.
6 Q WERE THERE ANY CHECKS MADE AT THE BORDER?
7 A YES.
8 Q WHAT?
9 A WE CHECKED TO SEE IF LICENSE PLATES OF ANY
10 OF THE PERSONS THAT WE WERE LOOKING FOR OR HAD BEEN
11 INVOLVED IN THE INVESTIGATION HAD CROSSED INTO
12 MEXICO OR CAME BACK ACROSS THE BORDER INTO THE
13 UNITED STATES FROM MEXICO. THOSE ALL CHECKED
14 NEGATIVE.
15 WE ALSO HAD OUR MEXICAN LIAISON UNIT
16 CONTACT THE MEXICAN AUTHORITIES AND GIVE THEM
17 INFORMATION ABOUT OUR MISSING PERSON.
18 Q WERE THERE ANY SEARCHES AT THE SILVER
19 STRAND?
20 A YES.
21 Q WHAT?
22 A THERE WAS ONE SEARCH DONE INITIALLY JUST
23 LOOKING FOR WITNESSES. WE TALKED TO A PARK RANGER
24 AND PEOPLE THAT HAD BEEN THERE.
25 MR. FELDMAN: OBJECTION; HEARSAY. HEARSAY.
26 MULTIPLE HEARSAY.
27 THE COURT: COUNSEL?
28 MR. DUSEK: LET ME REDIRECT THE QUESTION.
Page 21
1 THE COURT: ALL RIGHT.
2 BY MR. DUSEK:
3 Q BASED UPON YOUR INFORMATION, DID YOU DIRECT
4 ANY SEARCHES AT SILVER STRAND?
5 A YES, I DID.
6 Q WHAT DID YOU DIRECT THEM TO DO?
7 A I DIRECTED DETECTIVES TO GO DOWN TO THE
8 SILVER STRAND AND TRY AND CONTACT ANY WITNESSES THAT
9 WERE DOWN THERE DURING THE WEEKEND OF FEBRUARY 2ND
10 AND FEBRUARY 3RD.
11 AND THEN ALSO ON FEBRUARY 26TH, I DIRECTED
12 PEOPLE FROM OUR UNIT, DETECTIVES PARGA AND RANDY
13 ALDRIDGE COORDINATED A SEARCH WITH CHULA VISTA
14 MOUNTED RESERVES AND THEY DID A SEARCH OF THE STRAND
15 ON HORSEBACK AND ON FOOT.
16 Q HOW LONG DID THE POLICE DEPARTMENT SEARCHES
17 GO ON?
18 A WELL, THAT SEARCH WAS ON FEBRUARY 26TH, SO
19 WE SEARCHED AT LEAST THROUGH THE 26TH, AND AS LEADS
20 CAME IN, WE WERE FOLLOWING UP ON THAT.
21 Q DID YOU RECEIVE ANY TIPS?
22 A YES, WE DID.
23 Q ABOUT HOW MANY?
24 A IN EXCESS OF 900.
25 Q LET ME NOW DIRECT YOUR ATTENTION TO
26 FEBRUARY 27TH, I BELIEVE IT IS, THE YEAR 2002. DID
27 YOU BECOME INVOLVED AT A SCENE IN DEHESA THAT DAY?
28 A YES, I DID.
Page 22
1 Q WHAT WAS YOUR POSITION WITH THIS
2 INVESTIGATION AT THAT TIME?
3 A I WAS STILL IN CHARGE OF THE SEARCH EFFORTS
4 AND FOLLOWING UP ON THE TIPS THAT WERE COMING IN.
5 Q AND AT WHAT TIME OF THAT DAY DID YOU
6 RECEIVE INFORMATION REGARDING DEHESA?
7 A AT 2:34 P.M.
8 Q WHAT DID YOU RECEIVE?
9 A I RECEIVED A PAGE.
10 Q FROM?
11 A FROM SUSAN WINTERSTEIN.
12 Q WHO IS SHE?
13 A SHE’S A FRIEND OF THE VAN DAM FAMILY AND
14 SHE WAS ONE OF THE PEOPLE INVOLVED WITH THE LAURA —
15 THE DANIELLE RECOVERY CENTER.
16 Q WHAT DID SHE TELL YOU?
17 A SHE TOLD ME THE CENTER HAD JUST RECEIVED A
18 PHONE CALL FROM ONE OF THE SEARCH TEAMS SAYING THAT
19 THEY HAD FOUND DANIELLE’S BODY ON DEHESA ROAD,
20 BETWEEN SINGING HILLS GOLF COURSE AND SLOANE CANYON.
21 Q DO YOU RECALL WHERE YOU WERE WHEN YOU GOT
22 THAT INFORMATION?
23 A I WAS IN THE INVESTIGATIVE COMMAND POST ON
24 THE FOURTH FLOOR OF THE POLICE HEADQUARTERS
25 BUILDING.
26 Q ONCE YOU RECEIVED THAT INFORMATION, WHAT
27 DID YOU DO?
28 A I DIRECTED SERGEANTS TIM MURIN,
Page 23
1 SERGEANT JUDY WOODS, AND SEVERAL OF OUR DETECTIVES
2 TO GO WITH ME OUT TO THE SCENE TO FOLLOW UP ON THIS
3 AND MAKE SURE THAT INFORMATION WE WERE GETTING WAS
4 TRUE.
5 Q YOU BETTER SPELL TIM MURIN’S NAME SO WE CAN
6 GET IT RIGHT.
7 A M-U-R-E-N (SIC).
8 Q ALL RIGHT. WHAT DID YOU DO ONCE YOU
9 DIRECTED THE OFFICERS TO DO THAT?
10 A I STARTED OUT TO THE SCENE MYSELF.
11 Q WHERE DID YOU GO?
12 A OUT TO DEHESA ROAD, ABOUT THE 3500 BLOCK.
13 Q TELL US WHERE THAT IS.
14 A IF YOU GO OUT HIGHWAY 94, AND THEN FOLLOW
15 THAT TO WILLOW GLEN, WHICH IS BY THE COTTONWOOD GOLF
16 COURSE, YOU TAKE THAT, IT FOLLOWS — FLOWS INTO
17 DEHESA ROAD. AND AT THE “T” INTERSECTION, YOU MAKE
18 A RIGHT-HAND TURN THERE AT SINGING HILLS GOLF COURSE
19 AND GO ABOUT A QUARTER OF A MILE BEYOND THAT. HALF
20 MILE MAYBE.
21 Q THIS IS IN SAN DIEGO COUNTY?
22 A THIS IS IN SAN DIEGO COUNTY.
23 Q DESCRIBE THE AREA WHERE YOU WERE.
24 A THE AREA TO THE RIGHT, THERE’S A QUARRY OF
25 SOME SORT ON THE SOUTH SIDE OF THE STREET. VERY
26 SECLUDED. THERE’S NO RESIDENCE IN THE AREA. A LOT
27 OF BRUSH ON THE NORTH SIDE OF THE STREET AND GOING
28 UP A HILL.
Page 24
1 Q HOW ABOUT RESIDENCES? WERE THERE ANY OUT
2 THERE?
3 A NO.
4 Q ANY BUSINESSES?
5 A JUST THE QUARRY, AND I COULDN’T SEE ANY
6 SORT OF AN OFFICE FOR THE QUARRY FROM WHERE I WAS
7 AT.
8 Q WERE THERE ANY PEOPLE THERE WHEN YOU
9 ARRIVED?
10 A YES, THERE WERE.
11 Q WHO?
12 A SHERIFF’S DEPUTIES, MY DETECTIVES, AND THE
13 VOLUNTEER SEARCHERS.
14 Q DESCRIBE WHAT WAS GOING ON.
15 A THE SHERIFF’S DEPUTIES WERE CLOSING OFF THE
16 AREA, USING CRIME SCENE TAPE TO STOP TRAFFIC FROM
17 COMING THROUGH THE AREA. THE DETECTIVES I DIRECTED
18 TO INTERVIEW ALL OF THE PEOPLE INVOLVED IN THE
19 SEARCH. AND I SPOKE WITH DEPUTY ALSTEAD — I’M
20 SORRY. DEPUTY ALSTON, I BELIEVE HIS NAME IS.
21 Q WHO IS HE?
22 A HE’S THE PATROL DEPUTY WHO FIRST ARRIVED ON
23 THE SCENE.
24 Q WHAT DID HE TELL YOU?
25 A HE TOLD ME THAT HE HAD CONTACTED THE
26 SEARCHERS. THEY TOLD HIM THEY FOUND A BODY —
27 MR. FELDMAN: OBJECTION; MULTIPLE HEARSAY.
28 MOTION TO STRIKE.
Page 25
1 THE COURT: THE ANSWER IS STRICKEN.
2 BY MR. DUSEK:
3 Q REGARDLESS — REGARDLESS OF WHAT HE TOLD
4 YOU OTHER PEOPLE SAID, DID HE TELL YOU WHAT HE HAD
5 DONE?
6 A YES.
7 Q WHAT DID HE SAY HE DID?
8 A HE TOLD ME THAT HE HAD GONE INTO THE BRUSH
9 AREA BEHIND AN OAK TREE AND FOUND THE BODY OF WHAT
10 APPEARED TO BE A YOUNG FEMALE. HE DESCRIBED THE
11 BODY AS BEING PARTIALLY BURNED AND HE ALSO DESCRIBED
12 THE VICTIM OF HAVING ON A CHOKER NECKLACE AS THE ONE
13 HE HAD SEEN IN THE FLYERS FOR DANIELLE VAN DAM.
14 Q DID HE SAY WHETHER OR NOT HE HAD DISTURBED
15 OR MOVED THE BODY?
16 A HE SAID HE HAD NOT DISTURBED THE BODY.
17 Q WHAT DID YOU DO AT THAT POINT?
18 A I ASKED HIM TO TAKE ME BACK UP TO THE
19 LOCATION SO I COULD TAKE A LOOK AT THE BODY AND BE
20 CONFIDENT MYSELF THAT IT WAS DANIELLE VAN DAM OR
21 HIGH PROBABILITY THAT IT WAS DANIELLE VAN DAM SO I
22 COULD NOTIFY MY CHAIN OF COMMAND.
23 Q HAD YOU SEEN PICTURES OF DANIELLE VAN DAM?
24 A YES, I HAD.
25 Q DID YOU SEE ANY OF THE FLYERS OR MISSING
26 PERSONS PHOTOS?
27 A YES, I DID.
28 MR. DUSEK: YOUR HONOR, I’VE HAD MARKED AS
Page 26
1 COURT’S — PEOPLE’S EXHIBIT 1, THIS ONE-PAGE
2 DOCUMENT THAT LOOKS LIKE A MISSING PERSON FLYER WITH
3 A FEMALE ON IT.
4 (PEOPLE’S EXHIBIT 1 MARKED FOR IDENTIFICATION.)
5 BY MR. DUSEK:
6 Q DO YOU RECOGNIZE THAT, LIEUTENANT?
7 A YES, I DO.
8 Q WHAT IS IT?
9 A IT’S A MISSING PERSON FLYER FOR DANIELLE
10 VAN DAM.
11 THE COURT: I’LL ASSUME THAT ALL OF THE
12 DOCUMENTS HAVE BEEN SHOWN TO THE DEFENSE.
13 MR. DUSEK: THEY HAVE BEEN, YOUR HONOR.
14 THE COURT: I JUST WANT THAT FOR THE RECORD. I
15 KNEW THAT YOU HAD.
16 GO AHEAD.
17 BY MR. DUSEK:
18 Q DID YOU GO TO THE SCENE?
19 A YES, I DID.
20 Q HOW DID YOU GET THERE?
21 A I HAD THE DEPUTY FOLLOW THE SAME PATH HE
22 DID GOING UP THERE AND COMING BACK DOWN. IT WAS ON
23 THE WEST SIDE OF THE OAK TREE. I RAN TO THE NORTH
24 SIDE OF THE TREE.
25 Q DID YOU GIVE HIM ANY INSTRUCTIONS AS HE WAS
26 TAKING YOU UP THERE?
27 A I TOLD HIM TO WATCH HIS FOOTING, TO TRY AND
28 WALK IN THE SAME PATH THAT HE WALKED BEFORE, NOT
Page 27
1 MAKE ANY NEW PATH, ANY NEW PRINTS, AND NOT TO
2 DISTURB ANY EVIDENCE.
3 Q WHY DID YOU TELL HIM THAT?
4 A BECAUSE WE WANTED TO PRESERVE THE SCENE FOR
5 THE HOMICIDE TEAM.
6 Q WHERE DID YOU GO?
7 A WENT TO THE SOUTH SIDE OF THE OAK TREE
8 AND — I’M SORRY, THE NORTH SIDE OF THE OAK TREE AND
9 HE SHOWED ME WHERE THE BODY WAS.
10 Q WHAT DID YOU SEE?
11 A SAW THE BODY OF WHAT APPEARED TO BE A YOUNG
12 FEMALE, A CHILD, ADVANCE STAGES OF DECOMPOSITION.
13 SHE WAS LYING ON HER BACK. HER HEAD WAS TOWARDS THE
14 TREE, WHICH WAS ON THE SOUTH OF ME. HER FEET WERE
15 TOWARDS ME POINTING NORTH. HER HEAD WAS TURNED TO
16 THE RIGHT OR FACING EAST.
17 ON HER LOWER TORSO THERE WAS ADVANCED
18 STAGES OF DECOMPOSITION. MOST OF THE TISSUE FROM
19 HER UPPER LEGS WAS GONE. THE TISSUE AROUND HER NECK
20 AND MOUTH WAS PRETTY MUCH GONE.
21 Q WHEN YOU SAY “DECOMPOSITION,” WHAT DO YOU
22 MEAN BY THAT?
23 A ONCE THE BODY DIES, THE BODY STARTS TO
24 DECOMPOSE BASED ON THE ELEMENTS, AND SOME OF THE
25 CRITTER OR INSECT ACTIVITY.
26 Q COULD YOU TELL THE RACE OF THE PERSON WHILE
27 YOU WERE STANDING THERE?
28 A YES. IT WAS A WHITE FEMALE, OR WHITE
Page 28
1 PERSON. CAUCASIAN.
2 Q ANY CLOTHING ON HER?
3 A NO, THERE WAS NO CLOTHING.
4 Q HOW CLOSE DID YOU GET?
5 A I GOT TO ABOUT TEN FEET.
6 Q WHY DIDN’T YOU GET ANY CLOSER?
7 A I DIDN’T WANT TO DISTURB PHYSICAL EVIDENCE.
8 Q WERE ANY PARTS MISSING?
9 A YES.
10 Q WHAT?
11 A ONE OF HER FEET WAS MISSING.
12 Q DID YOU SEE ANY JEWELRY?
13 A YES, I DID.
14 Q WHAT DID YOU SEE?
15 A SHE HAD A PLASTIC BROWN CHOKER AROUND HER
16 NECK, SIMILAR TO THE ONE I’D SEEN IN THE
17 MISSING-PERSON FLYER. THE ONE THAT IS RIGHT HERE.
18 Q IS THAT CHOKER IN PEOPLE’S EXHIBIT 1?
19 A YES, IT IS.
20 Q COULD YOU HOLD IT UP AND SHOW US.
21 A THE CHOKER AROUND HER NECK RIGHT HERE.
22 Q ALL RIGHT. THAT WAS STILL ON HER AT THE
23 SCENE?
24 A YES, IT WAS.
25 Q DID YOU SEE ANY OTHER JEWELRY?
26 A I SAW AN EARRING IN HER LEFT EAR.
27 Q COULD YOU MAKE ANYTHING OF IT FROM THE
28 DISTANCE YOU WERE?
Page 29
1 A I COULD SEE THAT IT WAS FLAT. IT WAS
2 BASICALLY GOLD. IT WAS ROUND IN SHAPE AND IT LOOKED
3 LIKE IT HAD ANOTHER ROUND PART COMING OFF OF IT.
4 Q IS THAT SIGNIFICANT TO YOU?
5 A YES. IT APPEARED TO ME TO BE A MICKEY
6 MOUSE EARRING WHICH WAS WHAT WAS DESCRIBED AS BEING
7 WORN BY DANIELLE VAN DAM AT THE TIME SHE
8 DISAPPEARED.
9 Q FROM YOUR VANTAGE POINT, WERE YOU ABLE TO
10 SEE THE OTHER EAR?
11 A NO, I WAS NOT.
12 Q WHY NOT?
13 A HER HEAD WAS TURNED TO THE RIGHT SO THAT
14 EAR WOULD HAVE BEEN DOWN.
15 Q DID YOU LOOK AT THE SCENE FOR ANY OTHER
16 OBSERVATIONS AROUND THE BODY?
17 A I LOOKED AT THE AREA DIRECTLY AROUND THE
18 BODY. THE LEAVES WERE DRY. THERE WAS OBVIOUSLY NO
19 SIGN OF ANY BURNING. THE TREE ABOVE THE BODY SEEMED
20 TO BE OKAY, WITH NO SIGNS OF BURNING. THERE WERE
21 SOME DRAG MARKS IN THE LEAVES, COMING FROM THE NORTH
22 GOING TO THE SOUTH TO WHERE THE BODY WAS RESTING.
23 Q WHAT DO YOU MEAN BY “DRAG MARKS”?
24 A LOOKED LIKE SOMEBODY HAD BEEN — HAD
25 DRAGGED SOMETHING, WHETHER IT WAS — IT APPEARED TO
26 BE THE BODY TO ME, DRAGGING IT INTO THE UNDERBRUSH
27 UNDER THE TREE.
28 Q WHY WAS THAT SIGNIFICANT?
Page 30
1 A IT SHOWED ME THAT THAT BODY HAD BEEN PLACED
2 THERE AND THEN DRAGGED INTO THAT LOCATION, WHICH
3 WOULD INDICATE THAT THE BODY DECOMPOSED IN THE
4 POSITION THAT IT WAS.
5 Q ONCE YOU MADE YOUR OBSERVATIONS THERE,
6 LIEUTENANT — WELL, FIRST OF ALL, HOW LONG WOULD YOU
7 SAY YOU WERE THERE LOOKING AT THE BODY?
8 A NO MORE THAN TWO MINUTES.
9 Q THEN WHAT DID YOU DO?
10 A I EXITED THROUGH THE SAME PATH THAT I CAME
11 UP TO THE BODY.
12 Q AND DID DEPUTY ALSTON ALSO GO WITH YOU?
13 A YES, HE DID.
14 Q WHAT HAPPENED AT THAT POINT?
15 A AT THAT POINT, I TALKED TO THE SHERIFF’S
16 LIEUTENANT, JERRY LEWIS, HOMICIDE LIEUTENANT. ON MY
17 PHONE I ALSO CALLED CAPTAIN RON NEWMAN, MY CAPTAIN,
18 AND REQUESTED THAT HE HAVE TEAM 4 FROM THE HOMICIDE
19 SECTION RESPOND TO THE SCENE TO CONDUCT THE SCENE
20 INVESTIGATION.
21 Q THIS LOCATION, WAS IT SAN DIEGO
22 JURISDICTION OR SHERIFF’S JURISDICTION?
23 A IT WAS SHERIFF’S JURISDICTION.
24 Q HOW DID YOU WORK THAT OUT?
25 A WE HAVE A WORKING RELATIONSHIP WITH THE
26 SHERIFF’S DEPARTMENT. I TALKED TO LIEUTENANT LEWIS
27 AND I TOLD HIM THAT IT APPEARED TO ME THIS WAS GOING
28 TO BE DANIELLE VAN DAM’S BODY AND THAT OUR TEAM
Page 31
1 WOULD LIKE TO PROCESS THE SCENE. HE TOLD ME THAT HE
2 WAS GOING TO HAVE ONE OF HIS TEAMS RESPOND OUT THERE
3 AND THAT IF WE DETERMINED IT WAS DANIELLE, OUR TEAM
4 WOULD CONTINUE WITH THE INVESTIGATION. IF BY CHANCE
5 IT TURNED OUT IT WAS NOT DANIELLE VAN DAM, THEN HIS
6 TEAM WOULD TAKE OVER THE INVESTIGATION.
7 Q WHAT HOMICIDE TEAM FROM YOUR DEPARTMENT WAS
8 INVOLVED?
9 A HOMICIDE TEAM 4.
10 Q WHO’S ON THAT TEAM?
11 A SERGEANT BILL HOLMES, DETECTIVE MIKE OTT,
12 MARK KEYSER, JIM HERGENROEATHER, AND JIM TOMSOVIC.
13 Q DO YOU KNOW WHERE THEY WERE AT THE TIME OF
14 THE DISCOVERY OF THE BODY?
15 A THEY WERE EN ROUTE OUT TO GLAMIS.
16 Q WERE THEY NOTIFIED?
17 A YES, THEY WERE.
18 Q HOW?
19 A CAPTAIN NEWMAN NOTIFIED PEOPLE THAT —
20 MR. FELDMAN: OBJECTION; MULTIPLE HEARSAY.
21 MOTION TO STRIKE.
22 THE COURT: COUNSEL, THE ANSWER IS STRICKEN.
23 INSTEAD OF STOPPING EVERY TIME AND GETTING
24 THE SPELLING OF THESE NAMES FOR MY REPORTER, I’M
25 SURE SHE DOESN’T KNOW HOW TO SPELL HERGENROEATHER —
26 MR. DUSEK: WE DON’T EITHER.
27 THE COURT: — MAY I ASK THAT AFTER THIS HEARING
28 IS OVER, THEY’RE PREPARING THE TRANSCRIPTS, IF THEY
Page 32
1 HAVE QUESTIONS AS TO SPELLING, THEY MAY CALL THE
2 DISTRICT ATTORNEY? DO YOU HAVE ANY OBJECTION TO
3 THAT?
4 MR. FELDMAN: NO, YOUR HONOR.
5 THE COURT: GOOD IDEA?
6 MR. DUSEK: GOOD IDEA.
7 THE COURT: ALL RIGHT.
8 BY MR. DUSEK:
9 Q DID A HOMICIDE TEAM EVENTUALLY SHOW UP FROM
10 YOUR DEPARTMENT?
11 A YES, THEY DID.
12 Q ABOUT WHAT TIME?
13 A I THINK IT WAS ABOUT 5:30 IN THE EVENING.
14 Q WHICH TEAM WAS IT?
15 A HOMICIDE TEAM 4.
16 Q WHAT HAPPENED IN THE MEANTIME, FROM YOUR
17 OBSERVATION OF THE BODY UNTIL THE HOMICIDE TEAM
18 SHOWED UP?
19 A THE SHERIFF’S HOMICIDE TEAM CAME OUT TO THE
20 SCENE, THE SHERIFFS ALSO SENT A COMMAND VAN OUT TO
21 THE SCENE. AND BECAUSE IT WAS GETTING DARK SOON AND
22 THE HOMICIDE TEAM 4 WAS OUT AT THE DESERT, I
23 REQUESTED ANOTHER EVIDENCE TECH AND CRIME SCENE
24 DETECTIVE COME OUT TO TAKE SOME OVERALL PHOTOGRAPHS
25 FIRST BEFORE IT GOT TOO DARK.
26 Q DID THEY DO THAT?
27 A THEY ARRIVED SHORTLY BEFORE TEAM 4.
28 Q AND WHO WAS THAT?
Page 33
1 A THAT WAS SERGEANT L.D. MARTIN,
2 DETECTIVE JOHN TEFFT, AND FORENSIC SPECIALIST LARRY
3 FREGIA.
4 Q ONCE TEAM 4 SHOWED UP, WHAT HAPPENED?
5 A TEAM 4 ASKED THAT THE OTHER TEAM THAT WAS
6 ALREADY ON THE SCENE TO STOP WHAT THEY WERE DOING,
7 COME BACK, DO A BRIEFING WITH TEAM 4, AND THEN
8 TEAM 4 TOOK OVER THE INVESTIGATION.
9 Q HOW LONG DID YOU REMAIN THERE?
10 A UNTIL JUST AFTER EIGHT O’CLOCK THAT
11 EVENING.
12 Q WAS ANYONE FROM THE MEDICAL EXAMINER’S
13 OFFICE THERE WHEN YOU ARRIVED —
14 A NO.
15 Q — OR WHEN YOU LEFT?
16 A NO.
17 Q DO YOU KNOW IF THEY SHOWED UP THAT EVENING?
18 A YES, I DO.
19 MR. FELDMAN: OBJECTION; SPECULATION, NO
20 FOUNDATION. MOTION TO STRIKE.
21 THE COURT: COUNSEL, I THINK HE’S CORRECT.
22 MR. DUSEK: I THINK HE IS, TOO.
23 THE COURT: THE ANSWER IS STRICKEN.
24 MR. DUSEK: NO FURTHER QUESTIONS, YOUR HONOR.
25 THE COURT: ALL RIGHT.
26 COUNSEL?
27 MR. FELDMAN: JUST THINKING IF YOU HAVE A
28 PODIUM.
Page 34
1 THE COURT: REMEMBER, THIS ISN’T MY HOME. OKAY.
2 MR. FELDMAN: NOR OURS. THANK YOU.
3 THE COURT: BUT YOU KNOW, THAT’S A VERY GOOD
4 QUESTION. THERE IS A PODIUM. AND MAYBE ONE OF THE
5 BAILIFFS CAN GET IT.
6 MR. FELDMAN: THANK YOU VERY MUCH.
7 THE COURT: AS YOU KNOW, THIS DEPARTMENT IS NOT
8 USED FOR TRIALS. IT’S A PRESIDING DEPARTMENT, SO A
9 PODIUM NORMALLY ISN’T NECESSARY. BUT IT’S A FAIR
10 REQUEST.
11 MR. FELDMAN: THANK YOU VERY MUCH.
12
13 CROSS-EXAMINATION
14 BY MR. FELDMAN:
15 Q SIR, DID YOU PREPARE ANY REPORTS IN
16 CONNECTION WITH ANY ASPECT OF YOUR INVESTIGATION?
17 A JUST A FEW MINOR REPORTS.
18 Q WHEN YOU USE THE WORD “FEW,” WHAT NUMBER
19 COMES TO MIND?
20 A THREE.
21 Q WITH REGARD TO THOSE THREE REPORTS, DID YOU
22 PREPARE THOSE REPORTS AT TIMES WHEN THE EVENTS WERE
23 FRESHER IN YOUR MIND THAN THEY ARE TODAY?
24 A YES.
25 Q DID YOU REVIEW THE REPORTS TO ENSURE THAT
26 THEY CONTAINED ACCURATE INFORMATION?
27 A YES, I DID.
28 Q DID YOU REVIEW THE REPORTS TO ENSURE THAT
Page 35
1 THEY CONTAINED DETAILS THAT YOU BELIEVED TO BE
2 SIGNIFICANT?
3 A YES.
4 Q IS IT FAIR TO SAY THOSE REPORTS, THEN,
5 CONSTITUTE A FAIR AND ACCURATE REPRESENTATION OF ALL
6 DETAIL YOU BELIEVE TO BE SIGNIFICANT IN CONNECTION
7 WITH YOUR PARTICIPATION IN THIS CASE?
8 MR. DUSEK: OBJECTION; IRRELEVANT, TO ALL
9 REPORTS.
10 THE COURT: OVERRULED.
11 THE WITNESS: NO.
12 BY MR. FELDMAN:
13 Q SO ARE THE REPORTS, THEN, JUST PARTIAL
14 REPORTS THAT DO NOT CONTAIN DETAIL YOU BELIEVE TO BE
15 SIGNIFICANT?
16 A I CAN TELL YOU WHAT THE THREE REPORTS WERE.
17 Q WELL, PRIOR TO COMING TO COURT, DID YOU
18 REVIEW THE REPORTS?
19 THE COURT: COUNSEL, I KNOW, I CAN’T SEE MY
20 COURT REPORTER’S FACE. BUT IF I WERE TO LOOK OR
21 WERE TO BE ABLE TO SEE IT, I KNOW SHE’D BE GIVING ME
22 LOOKS. OKAY? SLOW DOWN JUST A LITTLE BIT.
23 MR. FELDMAN: YOUR HONOR, JUST SO THAT YOU KNOW,
24 SHE AND I HAVE HAD A CONVERSATION. SHE KNOWS ANY
25 TIME SHE WISHES SHE CAN EITHER RAISE HER HANDS OR
26 SHOUT, AND I KNOW I GO AT A FAST RATE.
27 THE COURT: SHE’S NOT GOING TO SHOUT. I WASN’T
28 PRIVY TO THAT CONVERSATION. GO AHEAD.
Page 36
1 MR. FELDMAN: CAN I HAVE THE LAST QUESTION READ
2 BACK, PLEASE. I’M SORRY.
3 (THE RECORD WAS READ BACK BY THE REPORTER.)
4 BY MR. FELDMAN:
5 Q PRIOR TO COMING TO COURT, SIR, DID YOU
6 REVIEW THOSE REPORTS FOR THE PURPOSE OF REFRESHING
7 YOUR RECOLLECTION AND HELPING YOU TESTIFY?
8 A NO.
9 Q BEFORE COMING TO COURT, DID YOU DO ANYTHING
10 FOR THE PURPOSE OF REFRESHING YOUR RECOLLECTION?
11 A YES, I DID.
12 Q WHAT DID YOU DO?
13 A I REVIEWED SOME OF THE REPORTS THAT HAD
14 BEEN DONE BY PATROL OFFICERS AND DETECTIVES.
15 Q WHAT REPORTS DID YOU REVIEW THAT WERE
16 PREPARED BY PATROL OFFICERS AND DETECTIVES?
17 A I REVIEWED THE COMMUNICATION PRINTOUT OF
18 THE CASE. I REVIEWED SOME REPORTS OF INTERVIEWS
19 DONE BY WITNESSES, DONE OF WITNESSES.
20 Q WHICH REPORTS OF INTERVIEWS OF WITNESSES?
21 A BRENDA AND DAMON VAN DAM.
22 Q OKAY.
23 A AND CHRIS MORGAN, CARSTON HEINBERG, BARBARA
24 EASTON, AND DENISE KEMAL.
25 Q DID YOU SPEAK TO ANY OTHER OFFICERS IN
26 CONNECTION WITH ASSISTING YOURSELF AND REFRESHING
27 YOUR RECOLLECTION ABOUT THE EVENTS ABOUT WHICH YOU
28 WERE BEING CALLED TO TESTIFY?
Page 37
1 A NO.
2 MR. FELDMAN: AT THIS TIME, YOUR HONOR, THE
3 DEFENSE MOVES TO REQUEST EVIDENCE CODE SECTION 721
4 — 771, FOR PRODUCTION OF ALL DOCUMENTS THAT THIS
5 WITNESS UTILIZED FOR PURPOSES OF REFRESHING HIS
6 RECOLLECTION.
7 THE COURT: YOU’RE TALKING ABOUT THE — FROM
8 WHAT ME TALKED ABOUT — COMMUNICATIONS, PRINTOUTS
9 AND INTERVIEWS OF SEVERAL WITNESSES; CORRECT?
10 MR. FELDMAN: YES.
11 THE COURT: WHY DON’T YOU DISCUSS THAT WITH THE
12 DISTRICT ATTORNEY?
13 MR. DUSEK: I BELIEVE HE ALREADY HAS THEM. PART
14 OF THE DISCOVERY.
15 MR. FELDMAN: EXCUSE ME, COUNSEL.
16 THE COURT: I WAS TALKING TO THE DISTRICT
17 ATTORNEY.
18 YOUR POSITION IS THAT ALL OF THESE
19 DOCUMENTS HAVE BEEN TURNED OVER TO THE DEFENSE?
20 MR. DUSEK: I BELIEVE SO.
21 THE COURT: OKAY.
22 MR. FELDMAN: I JUST KNOW THAT THE EVIDENCE CODE
23 PROVIDES AT ANY TIME A WITNESS UTILIZES ANY
24 DOCUMENTS FOR PURPOSES OF REFRESHING HIS
25 RECOLLECTION —
26 THE REPORTER: HOLD ON. SLOW DOWN, PLEASE.
27 MR. FELDMAN: AT ANY TIME A WITNESS REFERS TO
28 ANY DOCUMENTS FOR PURPOSES OF REFRESHING HIS
Page 38
1 RECOLLECTION, THAT UNDER THE EVIDENCE CODE WE’RE
2 ENTITLED TO PRODUCTION OF THOSE DOCUMENTS.
3 THE COURT: YOU’RE CORRECT. COUNSEL HAS SAID
4 HE’S ALREADY PRODUCED THEM.
5 MR. FELDMAN: WELL, THE PROBLEM IS I HAVE NO
6 RECOLLECTION OF EVER SEEING ANY REPORT OF ANY KIND
7 PREPARED BY THIS WITNESS. AND I’VE READ, I THINK
8 COUNSEL TOLD US, 1,607 PAGES.
9 THE COURT: SO WHAT YOU’RE SAYING TO ME IS, HE
10 INDICATED THAT HE PREPARED THREE REPORTS AND YOU
11 HAVEN’T SEEN THOSE REPORTS?
12 MR. FELDMAN: CERTAINLY NOT THOSE REPORTS,
13 THAT’S CORRECT, YOUR HONOR.
14 THE COURT: WHAT SEEMS TO BE THE PROBLEM?
15 MR. DUSEK: I DON’T KNOW IF THERE IS A PROBLEM.
16 THE COURT: OKAY.
17 MR. FELDMAN: I’M NOT MAKING ANY ALLEGATION THAT
18 THERE’S A PROBLEM. I’M JUST ASKING FOR THE WITNESS
19 TO PRODUCE.
20 THE COURT: SIR, IF YOU HAVEN’T ALREADY PRODUCED
21 THESE REPORTS, PLEASE DO SO OVER THE NOON HOUR.
22 OKAY, THE THREE REPORTS THAT YOU INDICATED THAT YOU
23 MADE.
24 IF YOU HAVE ALREADY PRODUCED THOSE REPORTS,
25 THE ATTORNEYS WILL MEET AT NOON AND FIGURE OUT THIS
26 PROBLEM, AND I’LL STAY OUT OF IT UNLESS I HAVE TO
27 GET INTO IT.
28 MR. FELDMAN: THANK YOU VERY MUCH, YOUR HONOR.
Page 39
1 BY MR. FELDMAN:
2 Q SIR, BASICALLY, I THINK YOU TOLD US YOU
3 WERE THE LAW ENFORCEMENT OFFICER WHO WAS I GUESS
4 ASSIGNED PRIMARY RESPONSIBILITY IN THE BEGINNING TO
5 LOCATE DANIELLE VAN DAM; IS THAT CORRECT, SIR?
6 A NOT IN THE BEGINNING.
7 Q AFTER SOME SHORT PERIOD OF TIME; IS THAT
8 CORRECT?
9 A AT 10:30 IN THE EVENING.
10 Q AND THAT WOULD BE ON WHICH DATE?
11 A FEBRUARY 2ND.
12 Q AND BY THEN DANIELLE HAD BEEN MISSING FOR
13 HOW LONG?
14 A SHE’D BEEN DISCOVERED MISSING AT SHORTLY
15 AFTER NINE O’CLOCK SATURDAY MORNING. SO THIS WAS
16 ABOUT 13-AND-A-HALF HOURS AFTER SHE WAS DISCOVERED
17 MISSING.
18 Q YOU SAID ON DIRECT EXAMINATION THAT, I
19 THOUGHT, YOU FIRST LEARNED OF THIS AT 10:00 A.M.
20 DO YOU RECALL THAT?
21 A NO.
22 Q THEN IT’S FAIR TO SAY, THEN, THE FIRST YOU
23 LEARNED OF THE MISSING PERSON REPORT WAS AT 9:00
24 A.M., NOT 10:00 A.M.; IS THAT CORRECT?
25 A THE FIRST TIME I LEARNED ABOUT THIS WAS
26 ABOUT SEVEN — ABOUT FIVE O’CLOCK THAT EVENING.
27 THE COURT: “THAT EVENING” BEING WHICH DATE?
28 THE WITNESS: FEBRUARY 2ND.
Page 40
1 THE COURT: THANK YOU.
2 BY MR. FELDMAN:
3 Q WHEN YOU RECEIVED THE CALL OUT, WAS THAT AT
4 10:00 A.M.?
5 A NO. ABOUT 10:30 P.M.
6 Q ALL RIGHT. DID YOU HAVE ANYTHING TO DO
7 WITH THE SEARCH OF THE VAN DAM RESIDENCE? OR
8 SEARCHES, I SHOULD SAY.
9 A I WAS INVOLVED IN ONE SEARCH OF THE VAN DAM
10 RESIDENCE.
11 Q WHICH SEARCH WAS THAT, SIR?
12 A THAT WAS DONE ABOUT THREE O’CLOCK, THE
13 MORNING OF FEBRUARY THE 3RD.
14 Q AND WAS ONE OF YOUR PURPOSES IN SEARCHING
15 THE VAN DAM HOUSE TO SEEK TO LOCATE, FOR INSTANCE,
16 BLOOD THAT MIGHT HAVE BEEN PRESENT AT THE SCENE?
17 A NO. MY SEARCH WAS TO DO ANOTHER SEARCH TO
18 MAKE SURE THAT DANIELLE WAS NOT ANYWHERE IN THAT
19 HOUSE.
20 Q ALL RIGHT. SO YOUR PURPOSE WAS JUST TO
21 LOOK FOR HUMAN BEINGS AS OPPOSED TO TRACE EVIDENCE;
22 IS THAT CORRECT?
23 A THAT’S CORRECT.
24 Q SO YOU HADN’T BEEN TOLD, FOR INSTANCE, THAT
25 ON THE BANNISTER OR THE STAIRWELL THERE APPEARED TO
26 BE RED SPOTS THAT MIGHT HAVE BEEN BLOOD? YOU DID
27 NOT HAVE THAT INFORMATION; IS THAT CORRECT, SIR?
28 MR. DUSEK: OBJECTION; ASSUMES FACTS NOT IN
Page 41
1 EVIDENCE.
2 BY MR. FELDMAN:
3 Q DID YOU HEAR FROM ANY OF THE EVIDENCE —
4 THE REPORTER: HOLD ON.
5 MR. FELDMAN: I’M SORRY.
6 THE COURT: I LEARNED A LONG TIME AGO THAT I GET
7 TO FULLY RULE AND THEN, LIKE IT OR NOT, THEN YOU GO.
8 OKAY?
9 THE REPORTER: WHAT WAS YOUR RULING?
10 THE COURT: SUSTAINED. THE OBJECTION IS
11 SUSTAINED.
12 MR. FELDMAN: YOUR HONOR, I’D MAKE — I’M TRYING
13 TO GET THE ADRENALINE DOWN.
14 THE COURT: I KNOW YOU ARE.
15 LET’S ASK THE NEXT QUESTION.
16 BY MR. FELDMAN:
17 Q WITH REGARD TO THE ASSIGNMENTS THAT YOU
18 ENGAGED IN — LET ME WITHDRAW THAT.
19 DID YOU DIRECT ANY EVIDENCE TECHS,
20 CRIMINALIST OR LABORATORY PERSONNEL TO EFFECT ANY
21 KIND OF INSPECTION OF THE VAN DAM HOUSE AT ANY TIME?
22 A NO.
23 Q WHOSE RESPONSIBILITY, THEN, WOULD IT HAVE
24 BEEN TO DIRECT THE FORENSIC TEAMS OF INDIVIDUALS TO
25 EVALUATE OR INVESTIGATE THE VAN DAM RESIDENCE?
26 A THAT WAS DONE PRIOR TO MY ARRIVAL ON THE
27 SCENE THAT NIGHT.
28 Q “THAT NIGHT” REFERRING TO THE 2ND OF
Page 42
1 FEBRUARY?
2 A THE 2ND OF FEBRUARY, YES.
3 Q BUT YOU TOLD US ON THE 3RD OF FEBRUARY YOU
4 ALSO WENT IN; IS THAT CORRECT?
5 A AT THREE O’CLOCK IN THE MORNING.
6 Q ALL RIGHT. SO IS IT FAIR TO SAY THAT FIRST
7 THE FORENSIC TEAMS WENT IN, EARLIER THAN YOU, AND
8 THEN AT 3:00 A.M. IN THE MORNING YOU WENT IN?
9 A YES.
10 Q NOW, SINCE THE FORENSIC TEAM HAD ALREADY
11 BEEN INSIDE — STRIKE THAT.
12 THE FORENSIC TEAM, ONCE IT HAD CONCLUDED
13 ITS WORK, DID IT REPORT IT HAD FOUND NO BODIES, NO
14 INDIVIDUALS?
15 MR. DUSEK: OBJECTION; HEARSAY.
16 THE COURT: OVERRULED.
17 THE WITNESS: THEY DIDN’T REPORT THAT THEY HAD
18 NOT FOUND ANY BODY, BUT I ASSUME IF THEY HAD THAT
19 THEY WOULD HAVE NOTIFIED ME.
20 BY MR. FELDMAN:
21 Q SO WHAT WAS THE PURPOSE OF YOU GOING IN FOR
22 THE PURPOSE OF ATTEMPTING TO LOCATE SOMEONE?
23 A BECAUSE WE WERE CHECKING AREAS OTHER THAN
24 WHAT THE FORENSIC TEAM WAS LOOKING IN.
25 Q SORRY, YOU JUST USED THE WORD “WE.” WHO’S
26 “WE”?
27 A MYSELF, FBI AGENT MATT BROWN, AND CHILD
28 ABUSE SERGEANT ERNIE HERBERT.
Page 43
1 Q WITH REGARD TO FBI AGENT MATT BROWN, DID
2 YOU SEE ANY DOCUMENTS THAT HE PREPARED PRIOR TO YOUR
3 COMING TO COURT TODAY?
4 A NO.
5 Q HAVE YOU DISCUSSED WITH AGENT BROWN ANY OF
6 THE SUBSEQUENT OBSERVATIONS YOU MADE IN CONNECTION
7 WITH YOUR PARTICIPATION IN THIS CASE?
8 A NO.
9 Q IS THE ONLY CONTACT YOU HAD WITH FBI AGENT
10 MATT BROWN THAT WHICH OCCURRED AT 3:00 A.M. ON OR
11 ABOUT 2-2?
12 A NO.
13 Q WHAT SUBSEQUENT CONTACTS DID YOU HAVE WITH
14 AGENT BROWN, SIR?
15 A HE WAS PART OF THE INVESTIGATIVE TEAM FOR
16 THE FIRST WEEK.
17 Q ALL RIGHT. DID YOU WORK WITH HIM AND THE
18 FBI IN CONNECTION WITH YOUR EFFORTS TO LOCATE
19 DANIELLE VAN DAM?
20 A YES.
21 Q WELL, YOU SAID THAT ONE OF THE TEAM MEMBERS
22 WAS ERNIE HERBERT OF CHILD ABUSE; IS THAT CORRECT?
23 A THAT’S CORRECT.
24 Q NOW, ONE OF THE JOBS THAT THE CHILD ABUSE
25 UNIT DOES WITH THE P.D. IS TO DETERMINE WHETHER OR
26 NOT KIDS HAVE BEEN ABUSED; IS THAT CORRECT?
27 A THAT’S CORRECT.
28 Q ONE OF THE SYMPTOMS OF ABUSE WOULD BE
Page 44
1 BLOOD; ISN’T THAT CORRECT?
2 A THAT’S CORRECT.
3 Q SO IS IT FAIR TO SAY THAT AT LEAST
4 INDIVIDUALS WITHIN YOUR, I DON’T KNOW, CHAIN OF
5 COMMAND, WOULD HAVE BEEN DETERMINED TO ATTEMPT TO
6 LOCATE TRACE EVIDENCE SUCH AS BLOOD TO ENSURE THAT
7 THE VAN DAMS WERE NOT RESPONSIBLE FOR ANYTHING
8 UNTOWARD COMING TO DANIELLE?
9 A YES.
10 Q SINCE, THEN, YOU HAD THE CHILD ABUSE UNIT
11 WITH YOU, AND THE FBI WHEN YOU WENT IN AT 3:00 IN
12 THE MORNING ON — WERE THE LIGHTS ON AT 3:00 IN THE
13 MORNING? DID YOU TURN THE LIGHTS ON?
14 A THEY WERE ON IN THE HOUSE.
15 Q DID ANYBODY LOOK TO INSPECT THE STAIRWAY
16 AREA OF THE VAN DAM RESIDENCE?
17 A I DON’T KNOW THAT FOR SURE. I WOULD ASSUME
18 THE FORENSIC TEAM DID.
19 Q HAVE YOU SEEN A FLOOR PLAN OF THE VAN DAM
20 RESIDENCE?
21 A I HAVEN’T SEEN THE FLOOR PLAN BUT I’VE BEEN
22 IN THE HOUSE.
23 Q DO YOU REMEMBER THAT THERE’S A STAIRWAY?
24 A YES.
25 Q AND WHEN YOU GET TO THE TOP OF THE
26 STAIRWAY, DO YOU REMEMBER THAT THERE’S SEVERAL
27 ROOMS?
28 A YES.
Page 45
1 Q WITH REGARD TO THE ROOMS, WHEN YOU FIRST
2 SAW THE SEVERAL ROOMS, COULD YOU TELL WHOSE ROOM WAS
3 WHOSE?
4 A NO.
5 Q BECAUSE THERE WAS NOTHING THAT PLAINLY
6 MARKED, FOR INSTANCE, THAT ONE ROOM BELONGED TO ONE
7 OF THE VAN DAM CHILDREN, ANOTHER ROOM BELONGED TO
8 ANOTHER OF THE VAN DAM CHILDREN; CORRECT?
9 A THAT’S CORRECT.
10 Q AND THERE WAS NOTHING THAT PLAINLY
11 INDICATED, FOR INSTANCE, THAT WHICH WAS THE MASTER
12 BEDROOM AS OPPOSED TO ANOTHER BEDROOM WHICH WAS DOWN
13 THE HALL; IS THAT CORRECT?
14 A NO, I ASSUME THE MASTER BEDROOM WAS THE ONE
15 THAT WAS AWAY FROM THE OTHER THREE BEDROOMS.
16 Q REGARDLESS, THOUGH, WERE YOU SHOWN WHICH OF
17 THE BEDROOMS IN THE UPSTAIRS AREA WAS DANIELLE
18 VAN DAM’S?
19 A YES, I WAS.
20 Q BY WHOM WERE YOU SHOWN THAT?
21 A I DON’T RECALL.
22 Q YOU DON’T RECALL WHETHER IT’S THE VAN DAMS
23 OR ONE OF THE OFFICERS THAT WAS WORKING WITH YOU,
24 SIR?
25 A IT WAS NOT THE VAN DAMS.
26 Q DID YOU ENTER THE ROOM THAT WAS IDENTIFIED
27 TO YOU AS DANIELLE VAN DAM’S?
28 A YES, I DID.
Page 46
1 Q DID YOU LOOK AROUND THE ROOM FOR THE
2 PURPOSE OF DETERMINING PRESENCE OR ABSENCE, SAY, OF
3 BLOOD?
4 A I LOOKED — NOT MICROSCOPICALLY, BUT I
5 LOOKED AROUND, YES.
6 Q AND THE PURPOSE OF YOU LOOKING AROUND WAS
7 BECAUSE YOU ARE TRYING TO SOLVE WHAT PERCEIVES TO
8 YOU TO BE A CRIME; RIGHT?
9 A THAT’S CORRECT.
10 Q AND YOU’RE A PRO AT THIS. YOU TOLD US
11 YOU’VE BEEN DOING THIS FOR 30 YEARS OR SO; IS THAT
12 RIGHT?
13 A THAT’S CORRECT.
14 Q AND YOU HAD WITH YOU TEAM MEMBERS WHO ALSO
15 HAD SIGNIFICANT EXPERIENCE; IS THAT CORRECT?
16 A THAT’S CORRECT.
17 Q AND PRIOR TO YOUR GETTING TO DANIELLE
18 VAN DAM’S ROOM, YOU HAD A FORENSIC TEAM IN THE HOUSE
19 LOOKING FOR TRACE EVIDENCE; ISN’T THAT CORRECT?
20 A THAT’S CORRECT.
21 Q BECAUSE PART OF YOUR TASK IS TO RULE OUT
22 ANYONE IN SIGHT, BASICALLY, AS A POTENTIAL SUSPECT
23 IN A CRIME LIKE THIS; ISN’T THAT CORRECT?
24 A THAT’S CORRECT.
25 Q AND SO INITIALLY, IS IT FAIR TO SAY THAT
26 YOU SUSPECTED THAT THE VAN DAMS MAY HAVE HAD
27 SOMETHING TO DO WITH THIS?
28 MR. DUSEK: OBJECTION; IRRELEVANT.
Page 47
1 THE COURT: SUSTAINED.
2 MR. FELDMAN: YOUR HONOR, YOU SUSTAINED
3 RELEVANCE. MAY I MAKE AN OFFER OF WHATEVER THE
4 COURT WISHES?
5 THE COURT: NO, I SUSTAINED IT. NEXT QUESTION.
6 BY MR. FELDMAN:
7 Q DO YOU RECALL WHETHER OR NOT YOU HAD
8 DIRECTED YOUR EVIDENCE TEAM TO SEEK TO LOCATE
9 ANYTHING THAT COULD POSSIBLY BE CONSTRUED AS TRACE
10 EVIDENCE?
11 A I DID NOT DIRECT THE FORENSIC TEAM. THAT
12 WAS DONE PRIOR TO MY ARRIVAL.
13 Q WELL, IT’S NOT — TO YOUR KNOWLEDGE, ISN’T
14 ONE OF THE JOBS OF THE FORENSIC TEAMS TO TRACK DOWN
15 TRACE EVIDENCE?
16 A YES.
17 Q AND TO YOUR KNOWLEDGE, THEY DID THEIR JOB
18 OR THEY ATTEMPTED TO DO THEIR JOB; RIGHT?
19 MR. DUSEK: OBJECTION; MULTIPLE HEARSAY,
20 SPECULATION.
21 THE COURT: OVERRULED. OVERRULED.
22 YOU MAY ANSWER THE QUESTION.
23 THE WITNESS: MAY I HAVE THE QUESTION AGAIN,
24 PLEASE?
25 (THE RECORD WAS READ BACK BY THE REPORTER.)
26 THE WITNESS: THAT’S CORRECT.
27 BY MR. FELDMAN:
28 Q AND NOBODY TOLD YOU THAT THEY THOUGHT
Page 48
1 THEY’D SEEN SOME BLOOD EVIDENCE ON THE STAIRWELL?
2 MR. DUSEK: OBJECTION; ASKED AND ANSWERED,
3 MULTIPLE HEARSAY.
4 THE COURT: OVERRULED.
5 THE WITNESS: NO.
6 BY MR. FELDMAN:
7 Q IS THE FIRST TIME YOU’RE LEARNING THAT THE
8 SAN DIEGO POLICE DEPARTMENT FORENSIC TEAM IDENTIFIED
9 WHAT APPEARED TO BE POTENTIAL BLOOD SPOTS ON THE
10 STAIRWELL TODAY?
11 MR. DUSEK: OBJECTION; ASKED AND ANSWERED.
12 THE COURT: OVERRULED.
13 THE WITNESS: I BELIEVE SO.
14 BY MR. FELDMAN:
15 Q IN THE ORDINARY COURSE OF BUSINESS, IS IT
16 THE CASE WITHIN THE SAN DIEGO POLICE DEPARTMENT THAT
17 THE FORENSIC UNITS REPORT UP THE CHAIN OF COMMAND?
18 A YES.
19 Q AND AT LEAST IN TERMS OF THIS CASE, ARE YOU
20 AT THE TOP OF THE CHAIN OR WERE YOU AT THE TOP OF
21 THE CHAIN OF COMMAND?
22 A NO. THERE WAS BIFURCATED CHAIN OF COMMAND.
23 LIEUTENANT DUNCAN WAS IN CHARGE OF THE PHYSICAL
24 EVIDENCE AND THE PROCESSING OF MR. WESTERFIELD.
25 Q OKAY. I’M SORRY. YOU JUST SAID
26 LIEUTENANT DUNCAN WAS IN CHARGE OF THE PROCESSING ON
27 THE WESTERFIELD INVESTIGATION PART.
28 WHO WAS IN CHARGE OF THE INVESTIGATION AND
Page 49
1 PROCESSING OF THE VAN DAM ASPECT OF THE CASE?
2 A THE HOMICIDE TOOK OVER RESPONSIBILITY FOR
3 ALL PHYSICAL EVIDENCE.
4 Q WAS THAT BEFORE OR AFTER 3:00 A.M. WHEN YOU
5 WERE THERE?
6 A THAT WAS AFTER.
7 Q DID YOU REPORT TO HOMICIDE — STRIKE THAT.
8 DID YOU DIRECT ANY OF THE FORENSIC TEAMS TO
9 REPORT TO HOMICIDE THAT WHICH THEY HAD FOUND?
10 A I DID NOT DIRECT THEM. BUT THAT’S THE WAY
11 THE REPORTING WENT.
12 Q I’M SORRY, “THAT’S THE WAY”?
13 A THAT’S THE WAY THE REPORTING WENT. THEY
14 REPORTED TO HOMICIDE.
15 Q AND WERE YOU AWARE — STRIKE THAT.
16 AS PART OF YOUR INSPECTION OF THE VAN DAM
17 RESIDENCE, SIR, DID YOU HAVE OCCASION TO WALK AROUND
18 THE VAN DAM RESIDENCE?
19 A YES, I DID.
20 Q AND DID YOU NOTE THAT IN THE GARAGE AREA
21 THERE APPEARED TO BE SOME BLOOD AS WELL, ON SOME
22 CEMENT?
23 A NO, I DID NOT.
24 Q WITH REGARD TO THE REPORTS THAT YOU TOLD US
25 THAT YOU REVIEWED PRIOR TO COMING TO COURT, SIR,
26 WERE ANY OF THOSE REPORTS FORENSIC REPORTS?
27 A NO.
28 Q SIR, ARE YOU TELLING ME, SIR, THAT ALTHOUGH
Page 50
1 YOU WERE AT THE TOP OF THE CHAIN OF COMMAND, YOU
2 WERE UNAWARE THAT VARIOUS EVIDENCE TECHNICIANS HAD
3 APPARENTLY INDICATED THAT THEY HAD LOCATED BLOOD IN
4 A CEMENT AREA IMMEDIATELY ADJACENT TO THE GARAGE AT
5 THE VAN DAM RESIDENCE?
6 MR. DUSEK: OBJECTION; ASKED AND ANSWERED,
7 FACTS NOT IN EVIDENCE.
8 THE COURT: SUSTAINED. NEXT QUESTION.
9 BY MR. FELDMAN:
10 Q WHEN ON THE 2ND AT 3:00 A.M. YOU WERE
11 INSPECTING INSIDE THE VAN DAM RESIDENCE, HAD YOU
12 LEARNED THAT BY THEN DAMON VAN DAM HAD VACUUMED THE
13 AREA?
14 A I KNOW THAT THE VACUUM CLEANER WAS OUT.
15 AND I’M NOT SURE IF I’D BEEN TOLD THAT HE HAD
16 ACTUALLY VACUUMED EARLIER IN THE DAY OR NOT.
17 Q BUT YOU KNOW TODAY THAT AT SOME POINT EARLY
18 ON IN THE INVESTIGATION MR. VAN DAM APPARENTLY
19 VACUUM CLEANER’D UP WHAT MIGHT HAVE BEEN TRACE
20 EVIDENCE YOUR AGENCY WOULD HAVE BEEN INTERESTED IN;
21 CORRECT?
22 MR. DUSEK: OBJECTION; VAGUE, CALLS FOR
23 SPECULATION.
24 THE COURT: SUSTAINED.
25 MR. FELDMAN: I’M SORRY, OBJECTION WHICH GROUND,
26 PLEASE?
27 THE COURT: BOTH.
28 /////
Page 51
1 BY MR. FELDMAN:
2 Q WITH REGARD TO THE VAN DAM RESIDENCE,
3 AGAIN, DID YOU NOTE THE PRESENCE OR ABSENCE OF ANY
4 DRAG MARKS?
5 A NO.
6 I TAKE THAT BACK. THERE WERE SOME DRAG
7 MARKS OUTSIDE IN SOME — APPARENTLY IN SOME DIRT
8 ALONG THE SIDEWALK ON THE EAST SIDE OF THE HOUSE.
9 Q I’M SORRY. YOU SAID DRAG MARKS ON “THE
10 SIDEWALK ON THE EAST SIDE OF THE HOUSE”; CORRECT?
11 A YES.
12 Q ONE, IN FACT, WAS ON THE SOUTHEAST CORNER
13 OF THE HOUSE; ISN’T THAT CORRECT?
14 A THAT’S CORRECT.
15 Q AND THE OTHER WAS THE SOUTHWEST — I’M
16 SORRY. AND THE OTHER ONE WAS LOCATED AT THE
17 SOUTHWEST EXTERIOR CORNER OF THE FIREPLACE; ISN’T
18 THAT CORRECT?
19 A I WAS NOT AWARE OF THAT ONE.
20 Q DID — WERE YOU AWARE THAT ONE OF THE DRAG
21 MARKS WAS FIVE FEET, FOUR INCHES LONG?
22 A I WAS NOT AWARE OF THE MEASUREMENTS.
23 Q WERE YOU AWARE THAT WITH REGARD TO A BLOOD
24 STAIN, THAT THERE DID, IN FACT, EXIST A BLOOD STAIN
25 ON THE CEMENT?
26 A NO, I WAS NOT.
27 Q WERE YOU RESPONSIBLE FOR SUPERVISING AN
28 OFFICER NAMED VAN WEY?
Page 52
1 A HE WAS PART OF THE INVESTIGATIVE TEAM THAT
2 WAS ALREADY THERE WHEN I ARRIVED.
3 Q OKAY. AND WHEN I — I’M SORRY. WAS
4 MR. VAN WEY, IS HE ROBBERY OR IS HE HOMICIDE, DO YOU
5 KNOW?
6 A HE WORKS NORTHEASTERN INVESTIGATIONS.
7 Q IS THERE A DISTINCTION? OR COULD YOU
8 PLEASE EXPLAIN.
9 A THE AREA COMMAND IS NORTHEASTERN AREA
10 COMMAND. THEY HAVE PATROL AND INVESTIGATIVE
11 PERSONNEL. HE IS PART OF THE NORTHEASTERN AREA
12 COMMAND INVESTIGATIONS.
13 Q BUT THAT DOESN’T REALLY TELL ME WHETHER
14 HE’S ROBBERY OR HOMICIDE.
15 A HE’S NEITHER.
16 Q OKAY. BUT HE’S ONE OF THE INDIVIDUALS WHO
17 HAD — WAS HE A UNIFORMED OFFICER ON FEBRUARY 2ND?
18 A NO. HE WAS IN PLAIN CLOTHES.
19 Q SIR, DID YOU DO ANYTHING ELSE AT THE
20 VAN DAM RESIDENCE THAT I FAILED TO ASK YOU?
21 MR. DUSEK: OBJECTION; VAGUE.
22 THE COURT: SUSTAINED.
23 BY MR. FELDMAN:
24 Q I’D LIKE TO NOW REDIRECT YOUR ATTENTION TO 25 I THINK YOU TOLD US APPROXIMATELY FEBRUARY 26,
26 FEBRUARY 27. THAT WOULD BE THE DAY THAT YOU GOT
27 INFORMATION THAT SOMEONE HAD LOCATED DANIELLE
28 VAN DAM.
Page 53
1 A FEBRUARY 27TH.
2 Q ALL RIGHT. SIR, YOU TOLD US THAT THERE WAS
3 SOME INFORMATION THAT CAME TO YOU THAT SUGGESTED
4 THAT THE BODY HAD BEEN BURNED. YOU’RE TRAINED, ARE
5 YOU NOT, IN THE DECOMPOSITION OR AT LEAST SOME
6 LEVELS OF FORENSICS?
7 A YES.
8 Q AND YOU’RE AWARE THAT WHEN A BODY IS LEFT
9 OUT FOR A PERIOD OF TIME, DECOMPOSITION CAN RESULT
10 IN A DARKENING OF THE TISSUES?
11 A YES.
12 Q AND THAT THAT DARKENING CAN BE CONFUSED FOR
13 BURN MARKS?
14 A YES.
15 Q AND WHEN YOU OBSERVED THE BODY INITIALLY,
16 YOU DID NOT FORM THE OPINION THAT IT WAS BURNED, DID
17 YOU?
18 A WHEN I FIRST GLANCED AT IT WITH THE
19 IMPRESSION IN MY MIND THAT THE BODY HAD BEEN BURNED,
20 THAT WAS MY FIRST BLUSH. BUT THEN TAKING A CLOSER
21 LOOK AT IT, I REALIZED THAT HAD NOT BEEN THE CASE.
22 Q ALL RIGHT. AND THAT’S BECAUSE,
23 UNFORTUNATELY, PART OF YOUR BUSINESS IS TO HAVE TO
24 DEAL WITH HUMAN BEINGS IN THE CONDITION THAT YOU
25 FOUND DANIELLE VAN DAM; ISN’T THAT RIGHT?
26 A THAT’S CORRECT.
27 Q AND YOU HAVE, UNFORTUNATELY, A GREAT DEAL
28 OF EXPERIENCE IN THIS AREA; ISN’T THAT RIGHT?
Page 54
1 A I WAS A HOMICIDE LIEUTENANT FOR FIVE YEARS.
2 Q SIR, I THINK YOU TOLD US ALSO THAT THERE
3 MAY HAVE SOME WHAT YOU PERCEIVE TO BE DRAG MARKS IN
4 OR NEAR THE AREA OF THE BODY.
5 A YES.
6 Q DID YOU PREPARE A REPORT OR ANY DOCUMENT
7 REFLECTING THAT OBSERVATION?
8 A NO.
9 Q THAT COMES TO YOU FROM MEMORY ALONE OR DID
10 YOU COMMUNICATE THAT TO ANYONE?
11 A FROM MEMORY ALONE.
12 Q CAN YOU TELL ME, SIR, WHAT WAS THE
13 APPROXIMATE WIDTH OF THE DRAG MARKS?
14 A I WOULD SAY NO MORE THAN A FOOT, BUT THAT
15 WOULD JUST BE AN ESTIMATE.
16 Q OKAY. SO IT’S FAIR TO SAY, IS IT NOT, THAT
17 WITH REGARD TO YOUR MEMORY OF THE — YOUR FIRST
18 OBSERVATIONS AT THE SCENE, YOU DIDN’T DO ANYTHING TO
19 MEMORIALIZE YOUR OBSERVATIONS; CORRECT?
20 A NO. NO, SIR.
21 Q AND BUT YOU’RE TRAINED AS PART — STRIKE
22 THAT.
23 AS A LAW ENFORCEMENT OFFICER, YOU
24 UNDERSTAND THAT PEOPLE’S MEMORIES FADE WITH TIME; IS
25 THAT CORRECT?
26 A THAT’S CORRECT.
27 Q AND ONE — ONE OF THE THINGS THAT LAW
28 ENFORCEMENT DOES TO PROTECT AGAINST MEMORIES FADING
Page 55
1 WITH TIME IS TO PREPARE REPORTS; ISN’T THAT CORRECT?
2 A THAT’S CORRECT.
3 Q BECAUSE THE REPORTS ARE PREPARED
4 CONTEMPORANEOUS WITH THE OBSERVATIONS AND THEREBY
5 PRESERVED IN MEMORY; ISN’T THAT CORRECT?
6 A THAT’S CORRECT.
7 Q IN THIS CASE, THOUGH, YOU DID NOT DO
8 ANYTHING SUBSTANTIVE TO PRESERVE YOUR MEMORY; ISN’T
9 THAT CORRECT?
10 A THAT’S CORRECT.
11 Q DID YOU RELY UPON SOME OTHER PERSON, WERE
12 THERE OTHERS AROUND YOU WHO YOU MIGHT HAVE DIRECTED
13 TO PREPARE REPORTS TO MEMORIALIZE THE OBSERVATIONS?
14 A I DID NOT DIRECT ANYBODY TO PREPARE ANY
15 REPORTS, NO.
16 Q SO DID YOU DIRECT ANYBODY TO TAKE ANY
17 PICTURES?
18 A I DIRECTED LARRY FREGIA AND JOHN TEFFT TO
19 TAKE SOME PHOTOGRAPHS.
20 Q AND HAVE YOU SEEN THOSE PHOTOGRAPHS PRIOR
21 TO COMING TO COURT?
22 A NO, I HAVE NOT.
23 Q AND DID THEY TAKE PHOTOGRAPHS, TO YOUR
24 KNOWLEDGE?
25 A TO MY KNOWLEDGE, YES.
26 Q DID YOU SEE THEM TAKING PHOTOGRAPHS?
27 A YES.
28 Q SIR, WHAT TIME DID YOU ARRIVE AT THE SCENE
Page 56
1 ON DEHESA ROAD?
2 A RIGHT ABOUT THREE O’CLOCK IN THE AFTERNOON.
3 Q DO YOU RECALL WHAT TIME SUNSET WAS?
4 APPROXIMATELY. JUST APPROXIMATELY.
5 A NO, I DON’T.
6 Q IT’S THE CASE, IS IT NOT, THAT YOU HAD NOT
7 CONCLUDED PROCESSING THE SCENE UNTIL AFTER — STRIKE
8 THAT.
9 THAT EVENING, THE SCENE HAD NOT BEEN
10 COMPLETELY PROCESSED BEFORE YOU LEFT; ISN’T THAT
11 RIGHT?
12 A THAT’S CORRECT.
13 Q DID SOMEBODY DIRECT THAT THE SCENE BE
14 FROZEN SO THAT COME DAYLIGHT LAW ENFORCEMENT WOULD
15 HAVE THE OPPORTUNITY TO INVESTIGATE THE SCENE AND
16 IDENTIFY WHAT TRACE EVIDENCE MIGHT HAVE BEEN
17 AVAILABLE?
18 A NOT WHILE I WAS THERE.
19 Q DID SOMEBODY TELL YOU THAT THE SCENE HAD
20 BEEN FROZEN FOR THE PURPOSE OF PRESERVING TRACE
21 EVIDENCE?
22 A YES.
23 Q WHO?
24 A I CAN’T REMEMBER IF IT WAS CAPTAIN NEWMAN
25 OR SERGEANT BILL HOLMES.
26 Q IN ANY CASE, IT WOULD BE APPROPRIATE, WOULD
27 IT NOT — STRIKE THAT.
28 THE REASON THE SCENE WOULD BE FROZEN WAS TO
Page 57
1 ENSURE THAT THERE WOULD BE NO CONTAMINATION OF THE
2 AREA; ISN’T THAT CORRECT?
3 A THAT’S CORRECT.
4 Q WHEN YOU FIRST GOT TO THE BODY, I THINK YOU
5 TOLD MR. DUSEK ON DIRECT EXAMINATION YOU CAME WITHIN
6 FIVE TO TEN FEET; IS THAT CORRECT?
7 A YES.
8 Q AND YOU CAME FROM WHAT, NORTH TO SOUTH —
9 I’M SORRY, EAST TO WEST. DO YOU RECALL WHAT
10 DIRECTION YOU CAME FROM?
11 A I CAME UP THE WEST SIDE OF THE TREE, WALKED
12 AROUND TO THE NORTH SIDE, AND THEN APPROACHED GOING
13 SOUTH.
14 Q HOW MANY PEOPLE WERE WITH YOU AT THE TIME
15 OF YOUR APPROACH, IF YOU RECALL?
16 A ONE.
17 Q AND WHO WAS THAT, PLEASE?
18 A DEPUTY ALSTON.
19 Q SO BOTH YOU AND MR. ALSTON APPROACHED TO
20 WITHIN FIVE TO TEN FEET; CORRECT?
21 A YES.
22 Q DO YOU HAVE KNOWLEDGE AS TO WHO HAD
23 APPROACHED THAT SCENE PRIOR TO YOU AND
24 DEPUTY ALSTON’S APPROACH TO THE SCENE?
25 A THE FIVE VOLUNTEER SEARCHERS.
26 Q AND DID YOU INTERVIEW OR CAUSE TO BE
27 INTERVIEWED THE FIVE VOLUNTEER SEARCHERS?
28 A YES, I CAUSED THEM TO BE INTERVIEWED.
Page 58
1 Q WASN’T ONE OF THE PURPOSES OF THE
2 INTERVIEWS TO DETERMINE WHETHER OR NOT ANY OF THE
3 SEARCH TEAM MAY HAVE EITHER ADVERTENTLY OR
4 INADVERTENTLY CONTAMINATED THE SCENE?
5 A YES.
6 Q AND IT WAS IMPORTANT, WAS IT NOT, TO LEARN
7 HOW CLOSE THE SEARCHERS HAD COME TO THE BODY TO
8 ENSURE THAT THEY DID NOT OBLITERATE WHAT COULD
9 POTENTIALLY BE EVIDENCE THAT YOUR OFFICE COULD USE
10 TO INVESTIGATE THE CASE; ISN’T THAT CORRECT?
11 A THAT’S CORRECT.
12 Q AND YOU LEARNED, DID YOU NOT, THAT AT LEAST
13 FOUR TO SIX INDIVIDUALS HAD COME WITHIN THREE TO
14 FIVE FEET OF THE BODY BEFORE EVER LETTING YOU KNOW
15 WHAT HAD HAPPENED; ISN’T THAT RIGHT?
16 A THAT’S CORRECT.
17 Q AND, IN FACT, YOU WERE ABLE TO INTERVIEW
18 THE SEARCH TEAM MEMBERS; ISN’T THAT CORRECT?
19 A MY DETECTIVES WERE.
20 Q AND YOU LEARNED — AND YOU TOLD THE SEARCH
21 TEAM MEMBERS OR CAUSED YOUR DETECTIVES TO TELL THE
22 SEARCH TEAM MEMBERS THAT IT WAS IMPORTANT THAT EVERY
23 ONE OF THEM TOLD YOU THE TRUTH, THE WHOLE TRUTH AND
24 NOTHING BUT THE TRUTH; CORRECT?
25 A I DON’T KNOW IF THE DETECTIVES TOLD THEM
26 THAT OR NOT.
27 Q WOULDN’T YOU ASSUME THAT WHEN A LAW
28 ENFORCEMENT OFFICER IS INTERVIEWING A CIVILIAN, THAT
Page 59
1 THE OFFICER WOULD TELL YOU IT’S IN YOUR INTEREST,
2 SIR OR MA’AM, TO TELL THE TRUTH?
3 MR. DUSEK: OBJECTION; IRRELEVANT.
4 THE COURT: SUSTAINED.
5 BY MR. FELDMAN:
6 Q WERE YOU AWARE THAT AT LEAST THE INDIVIDUAL
7 THAT TOOK THE PHOTOGRAPH — THAT THERE WAS AN
8 INDIVIDUAL WHO TOOK PHOTOGRAPHS AT THE SCENE?
9 A I JUST BECAME AWARE OF THAT THE OTHER DAY.
10 Q BECAUSE ONE OF THE PEOPLE THAT WAS
11 INTERVIEWED FAILED TO TELL YOUR OFFICERS THAT HE HAD
12 PICTURES —
13 MR. DUSEK: OBJECTION; MULTIPLE HEARSAY.
14 THE COURT: HOLD ON. HOLD ON. LET ME HEAR THE
15 QUESTION AGAIN.
16 THE REPORTER: I DIDN’T GET IT ALL BECAUSE HE
17 INTERRUPTED.
18 THE COURT: ALL RIGHT. THERE YOU GO. I DON’T
19 HAVE TO ADMONISH YOU.
20 GO AHEAD.
21 MR. FELDMAN: WAS I ABOUT TO GET ADMONISHED?
22 THE COURT: ASK THE QUESTION AGAIN, AND THEN
23 I’LL LISTEN TO THE OBJECTION.
24 BY MR. FELDMAN:
25 Q OKAY. IS IT THE CASE THAT — LET ME BACK
26 UP, JUST FOR A MOMENT.
27 YOU JUST TOLD US THAT YOU LEARNED WITHIN A
28 VERY SHORT PERIOD OF TIME THAT SOMEBODY HAD TAKEN
Page 60
1 PHOTOS, ONE OF THE SEARCHERS HAD TAKEN PHOTOS; IS
2 THAT CORRECT?
3 MR. DUSEK: OBJECTION; MULTIPLE HEARSAY, NO
4 FOUNDATION.
5 THE COURT: COUNSEL?
6 MR. FELDMAN: I’M JUST TRYING TO REITERATE WHAT
7 THE WITNESS SAID.
8 IT’S NOT OFFERED FOR THE TRUTH OF THE
9 MATTER. IT’S JUST TO FOCUS HIM. IT’S FOUNDATIONAL.
10 MR. DUSEK: IRRELEVANT.
11 THE COURT: FOR THAT PURPOSE, I’LL ALLOW IT.
12 BY MR. FELDMAN:
13 Q I’M TRYING TO ASCERTAIN, IT’S THE CASE,
14 ISN’T IT, THAT YOU JUST RECENTLY HAVE LEARNED THAT
15 ONE OF THE SEARCHERS HAD A DIGITAL CAMERA AND HAD
16 TAKEN, IN ADDITION TO HIS VACATION PICTURES, SCENE
17 PICTURES?
18 A YES.
19 MR. DUSEK: IRRELEVANT.
20 THE COURT: OVERRULED.
21 GO AHEAD.
22 BY MR. FELDMAN:
23 Q AND WITH REGARD TO THAT PARTICULAR
24 INDIVIDUAL, WERE YOU AWARE THAT THAT INDIVIDUAL HAD
25 FAILED TO TELL LAW ENFORCEMENT OF THE EXISTENCE OF
26 THE PHOTOS UNTIL SOMETIME AFTER THE INITIAL
27 INTERVIEWS?
28 MR. DUSEK: OBJECTION, YOUR HONOR; NO FOUNDATION
Page 61
1 FOR 115. THIS IS MULTIPLE HEARSAY AND IRRELEVANT.
2 THE COURT: I THINK IT’S IRRELEVANT. SUSTAINED.
3 MR. FELDMAN: EXCUSE ME, YOUR HONOR. JUST A
4 MINUTE, PLEASE.
5 BY MR. FELDMAN:
6 Q SIR, YOU TOLD US THAT YOUR INITIAL
7 OBSERVATION INVOLVED YOUR SEEING WHAT APPEARED TO
8 YOU TO BE THE BODY OF A YOUNG FEMALE IN AN ADVANCED
9 STAGE OF DECOMPOSITION.
10 CAN YOU PLEASE ELABORATE OR DEFINE WHAT YOU
11 MEANT WHEN YOU COMMUNICATED TO MR. DUSEK THAT YOU
12 SAW THE BODY OF A YOUNG FEMALE IN AN ADVANCED STAGE
13 OF DECOMPOSITION?
14 A THERE WAS A BODY OF A YOUNG PERSON, SMALL
15 PERSON, APPROXIMATELY FOUR-FOOT-EIGHT TO
16 FOUR-FOOT-TEN. WHAT I COULD SEE OF THE FACE, SHE
17 APPEARED TO BE YOUNG. THE JEWELRY, THE NECKLACE,
18 THE HAIR, WOULD INDICATE TO ME THAT IT WAS A FEMALE.
19 Q MAYBE I WASN’T CLEAR. WHAT I’M ASKING YOU
20 TO DO IS DEFINE FOR ME WHAT YOU MEANT TO COMMUNICATE
21 WHEN YOU DEFINED THE CONDITION AS, QUOTE, “ADVANCED
22 STAGE OF DECOMPOSITION,” END QUOTE. THAT’S WHAT I’M
23 ASKING.
24 A A LOT OF THE BODY TISSUE WAS GONE. THERE
25 WAS DECOMPOSITION. THE DARK COLOR. THE ACTIVITY OF
26 SOME INSECTS AROUND HER FACE.
27 Q DO YOU RECALL WHAT KIND OF INSECTS?
28 A MAGGOTS.
Page 62
1 Q YOU’RE AWARE THAT THERE’S A PARTICULAR
2 SEGMENT OF THE FORENSIC SCIENCE COMMUNITY CALLED
3 FORENSIC ENTOMOLOGY; IS THAT CORRECT?
4 A YES.
5 Q AND YOU’RE AWARE THAT, WE’LL CALL THEM BUG
6 DOCTORS CAN UTILIZE GENETICS FOR THE PURPOSE OF
7 DETERMINING WHAT GENERATION OF BUG OR HOW LONG IT
8 WOULD TAKE BEFORE THOSE BUGS COULD BE CULTURED;
9 ISN’T THAT CORRECT?
10 MR. DUSEK: OBJECTION; IRRELEVANT.
11 MR. FELDMAN: TIME OF DEATH.
12 THE COURT: WELL, COUNSEL, I DON’T THINK IT’S
13 IRRELEVANT. OVERRULED. I DON’T KNOW WHETHER THIS
14 WITNESS KNOWS OR NOT.
15 THE WITNESS: I’M AWARE OF SUCH DOCTORS, YES.
16 BY MR. FELDMAN:
17 Q WHEN YOU SAY “ADVANCED STAGE OF
18 DECOMPOSITION,” IS THERE A MODERATE STAGE AS OPPOSED
19 TO AN ADVANCED STAGE?
20 A YOU GET THE DISCOLORATION FIRST AND SOME
21 MINOR DECOMPOSITION, DECAYING OF THE BODY.
22 Q CAN YOU TELL ME WHETHER OR NOT, IN YOUR
23 OPINION, THAT BODY COULD HAVE BEEN LEFT THERE, WE’LL
24 SAY FROM FEBRUARY THE 5TH —
25 MR. DUSEK: OBJECTION; NO FOUNDATION.
26 BY MR. FELDMAN:
27 Q — TO THE 26TH, I THINK YOU TOLD US YOU
28 FOUND IT?
Page 63
1 THE COURT: SUSTAINED.
2 BY MR. FELDMAN:
3 Q ARE YOU ABLE TO FORM AN OPINION, BASED ON
4 YOUR TRAINING AND EXPERIENCE, BASED ON YOUR YEARS AS
5 HOMICIDE DETECTIVE, BASED ON THE NUMBER OF CRIME
6 SCENES YOU’VE SEEN, ARE YOU ABLE TO FORM AN OPINION
7 AS TO HOW LONG THAT BODY MIGHT HAVE BEEN OUT THERE
8 BEFORE IT WAS DISCOVERED?
9 MR. DUSEK: OBJECTION; NO FOUNDATION.
10 THE COURT: WELL, COUNSEL, HE’S ONLY ASKING
11 WHETHER HE CAN FORM SUCH AN OPINION. IF HE SAYS
12 YES, THEN LAY A FOUNDATION. IF HE SAYS NO, IT’S
13 PROBABLY THE END OF THIS LINE OF QUESTIONING.
14 OVERRULED.
15 THE WITNESS: I’M NOT QUALIFIED TO MAKE THAT
16 KIND OF A JUDGMENT.
17 BY MR. FELDMAN:
18 Q DID YOU LIFT THE BODY UP OR TOUCH THE BODY
19 IN ANY WAY?
20 A NO.
21 Q DID YOU NOTICE ANY PARTICULAR ODOR?
22 A I DID NOT.
23 Q AND WOULD YOU AGREE THAT ONE OF THE SIGNS
24 OF EARLY DECOMPOSITION IS A PRETTY STRONG ODOR?
25 A YES.
26 Q SO THE ABSENCE OF THE ODOR WOULD SUGGEST,
27 WOULD IT NOT, THAT THE DECOMPOSITION HAD BEEN GOING
28 ON FOR A GREATER PERIOD OF TIME AS OPPOSED TO A
Page 64
1 SHORTER PERIOD OF TIME?
2 MR. DUSEK: OBJECTION; VAGUE.
3 THE COURT: OVERRULED.
4 THE WITNESS: I CAN’T REALLY SAY THAT. IT COULD
5 HAVE BEEN THE FACT THAT THE BODY WAS OUTDOORS AND I
6 WAS STANDING UPWIND.
7 BY MR. FELDMAN:
8 Q WELL, SIR, IN YOUR TRAINING AND EXPERIENCE,
9 YOU’VE COME ACROSS BODIES THAT HAVE BEEN OUTDOORS,
10 HAVEN’T YOU?
11 A YES, I HAVE.
12 Q AND THEY WERE IN EARLY STAGES OF
13 DECOMPOSITION; RIGHT?
14 A YES.
15 Q AND THEY SMELLED, DIDN’T THEY?
16 A SOME OF THEM, YES.
17 Q ESPECIALLY THOSE BODIES THAT WERE IN EARLY
18 STAGES OF DECOMPOSITION; CORRECT, WHETHER YOU WERE
19 UPWIND OR DOWNWIND?
20 A THAT’S CORRECT.
21 Q SIR, DID YOU — ARE YOU — ARE YOU ABLE
22 TODAY TO TELL US WHAT THE APPROXIMATE TEMPERATURE
23 WAS AT THE SCENE AT WHICH YOU ORIGINALLY LOCATED
24 DANIELLE VAN DAM?
25 MR. DUSEK: OBJECTION; VAGUE AS TO WHEN.
26 MR. FELDMAN: AT THE SCENE WHEN HE ORIGINALLY
27 LOCATED IT.
28 THE COURT: SUSTAINED.
Page 65
1 WHEN HE CAME THERE?
2 MR. FELDMAN: YES, YOUR HONOR.
3 THE COURT: OKAY. OVERRULED.
4 THE WITNESS: IT WAS WARM. PROBABLY 70, LOW
5 70’S.
6 BY MR. FELDMAN:
7 Q AND TEMPERATURE WILL AFFECT THE SPEED AT
8 WHICH A BODY DECOMPOSES; ISN’T THAT CORRECT?
9 A THAT’S CORRECT.
10 MR. FELDMAN: EXCUSE ME, YOUR HONOR, I’M SORRY.
11 THE COURT: I UNDERSTAND.
12 MR. FELDMAN: I’M SORRY. WE WANT THE MIKES OFF.
13 BY MR. FELDMAN:
14 Q I WANT TO MOVE YOU BACK TO THE VAN DAM
15 RESIDENCE AND I WANT TO SPECIFICALLY FOCUS YOUR
16 ATTENTION ON THE FACT OF YOUR BECOMING AWARE THAT
17 DAMON VAN DAM HAD VACUUMED THE AREA OF THE VAN DAM
18 RESIDENCE.
19 MR. DUSEK: ASSUMES FACTS NOT IN EVIDENCE AND NO
20 FOUNDATION FOR 115, YOUR HONOR.
21 THE COURT: COUNSEL?
22 MR. FELDMAN: I’LL TRY AND LAY THE FOUNDATION.
23 THE COURT: SUSTAINED, SO FAR.
24 BY MR. FELDMAN:
25 Q WHEN YOU WERE AT THE VAN DAM RESIDENCE, DID
26 YOU TALK TO A POLICE OFFICER?
27 A I TALKED TO SEVERAL POLICE OFFICERS.
28 Q DID YOU TALK TO DAMON VAN DAM?
Page 66
1 A NO.
2 Q DID YOU EVER GET SHOWN A VACUUM CLEANER?
3 A YES.
4 Q DID YOU DIRECT THAT WITH REGARD TO THAT
5 VACUUM CLEANER THAT YOU WERE SHOWN, THAT IT BE
6 SEIZED FOR THE PURPOSE OF EVALUATING THE PRESENCE OR
7 ABSENCE OF TRACE EVIDENCE?
8 A I DID NOT DIRECT THAT.
9 Q DIDN’T IT STRIKE YOU AS UNUSUAL THAT A
10 PERSON WHO WAS CONCERNED ABOUT LOCATING HIS DAUGHTER
11 WOULD VACUUM UP POTENTIAL TRACE EVIDENCE?
12 MR. DUSEK: OBJECTION; ARGUMENTATIVE, ASSUMES
13 FACTS NOT IN EVIDENCE.
14 THE COURT: I’VE ALREADY RULED ON THAT.
15 SUSTAINED.
16 BY MR. FELDMAN:
17 Q AT THE LOCATION AT WHICH YOU IDENTIFIED
18 DANIELLE VAN DAM’S BODY, WERE YOU ABLE TO SEE
19 WHETHER OR NOT THERE WERE FOOTPRINTS OR OTHER MARKS
20 IN THE AREA TO SUGGEST THAT THERE HAD BEEN SOME FORM
21 OF FOOT TRAFFIC PRIOR TO YOUR ARRIVAL?
22 A I DON’T RECALL NOTICING ANY, BUT MY MAIN
23 PURPOSE IN GOING UP THERE WAS TO SEE IF I COULD
24 IDENTIFY DANIELLE VAN DAM.
25 Q DID YOU NOTICE WHETHER OR NOT THERE WAS ANY
26 EVIDENCE OF VEHICULAR TRAFFIC, MEANING LIKE TIRE
27 MARKS OR MOTORCYCLE TIRE MARKS OR BICYCLE MARKS?
28 A THERE WAS SOME MARKS IN THE GRASS AREA
Page 67
1 AROUND THERE, BUT I DIDN’T PAY THAT MUCH ATTENTION
2 TO THEM. AGAIN, I WENT UP THERE WITH THE SOLE
3 PURPOSE TO SEE IF I COULD IDENTIFY THE VICTIM AS
4 DANIELLE VAN DAM.
5 THE REPORTER: SLOW DOWN, PLEASE.
6 THE WITNESS: FOR THE SOLE PURPOSE TO SEE IF I
7 COULD IDENTIFY THE VICTIM AS DANIELLE VAN DAM.
8 MR. FELDMAN: I JUST WOULD LIKE THE RECORD TO
9 REFLECT SOMEONE ELSE TALKED TOO FAST FOR THE
10 REPORTER.
11 I HAVE NO FURTHER QUESTIONS.
12
13 REDIRECT EXAMINATION
14 BY MR. DUSEK:
15 Q YOU WERE ASKED REGARDING THE CHILDREN’S
16 ROOMS IN THE VAN DAM RESIDENCE. COULD YOU TELL
17 WHETHER OR NOT THEY WERE MALE OR FEMALE ROOMS?
18 A FROM THE INSIDE?
19 Q WHEN YOU GOT IN THE ROOM AND LOOKED AT
20 THEM.
21 A YES.
22 Q HOW COULD YOU TELL?
23 A WELL, DANIELLE’S ROOM HAD A POSTER BED WITH
24 A NET CANOPY ON IT. IT WAS OBVIOUSLY GIRL THINGS.
25 DOLLS, THAT TYPE OF THING. THE BOYS HAD CARS,
26 TRUCKS.
27 Q WHAT COLOR WAS DANIELLE’S ROOM?
28 A IT’S BEEN A WHILE SINCE I’VE BEEN IN THERE.
Page 68
1 I THINK THE PRIMARY COLOR WAS PINK.
2 Q WAS IT YOUR RESPONSIBILITY TO PICK UP ANY
3 TRACE OR FORENSIC EVIDENCE AT ANY OF THESE SCENES?
4 A NO.
5 Q WHO DOES THAT?
6 A THE FORENSIC SPECIALIST.
7 Q DO THEY WRITE REPORTS ON WHAT THEY DID AND
8 WHERE THEY FOUND THINGS?
9 A YES.
10 Q ARE THEY THE ONES THAT WRITE REPORTS AND
11 MAKE COMPARISONS TO THOSE PIECES OF EXHIBITS?
12 A YES.
13 Q YOU TALKED ABOUT WHAT YOU THOUGHT WERE DRAG
14 MARKS AT THE BODY. WERE PHOTOGRAPHS TAKEN OF THOSE?
15 A YES.
16 MR. FELDMAN: WELL, OBJECTION; SPECULATION, NO
17 FOUNDATION.
18 THE COURT: HOLD ON. SUSTAINED.
19 YOU CAN GET THERE.
20 BY MR. DUSEK:
21 Q DO YOU RECALL IF ANYONE WAS DIRECTED TO
22 TAKE PHOTOGRAPHS OF THE SCENE AT THE RECOVERY SITE?
23 A YES, THEY WERE.
24 MR. FELDMAN: OBJECTION; HEARSAY. I MEAN 115,
25 YOUR HONOR, FOUNDATION.
26 THE COURT: I UNDERSTAND. YOU WANT TO KNOW WHO
27 DIRECTED AND WHAT HE KNOWS. I UNDERSTAND.
28 SUSTAINED. THE ANSWER IS STRICKEN.
Page 69
1 BY MR. DUSEK:
2 Q DO YOU KNOW WHO DIRECTED THAT PHOTOGRAPHY
3 WORK?
4 A I DID.
5 Q WHAT DID YOU TELL THEM TO DO?
6 A I TOLD LARRY FREGIA AND JOHN TEFFT THAT I
7 WANTED THEM TO START PROCESSING THE SCENE AND TAKE
8 OVERALL PHOTOGRAPHS OF THE SCENE BEFORE IT GOT DARK.
9 Q WAS IT YOUR RESPONSIBILITY TO DO THAT?
10 A NO, IT WAS NOT.
11 Q WAS IT THEIR RESPONSIBILITY TO DO THAT?
12 A YES, IT WAS.
13 Q DO YOU KNOW IF THEY WROTE REPORTS ON WHAT
14 THEY DID, WHAT THEY SAW, AND WHAT THEY RECOVERED?
15 A I WOULD ASSUME THEY DID BECAUSE I HAVE NOT
16 SEEN THE REPORTS.
17 MR. FELDMAN: MOTION TO STRIKE. SPECULATION.
18 THE COURT: OVERRULED.
19 BY MR. DUSEK:
20 Q THE SEARCH MEMBERS, THE CIVILIANS THAT WERE
21 THERE, DID YOU SPEAK WITH ANY OF THEM DIRECTLY?
22 A I SPOKE WITH ONE OF THEM.
23 Q WHO?
24 A SHAWANA MILLER.
25 Q WHAT DID SHE TELL YOU?
26 A SHE TOLD ME THAT SHE WAS THE LEADER OF THE
27 SEARCH TEAM, THAT SHE WAS NOTIFIED BY ONE OF THE
28 SEARCH MEMBERS THAT THEY HAD FOUND —
Page 70
1 MR. FELDMAN: OBJECTION; MULTIPLE HEARSAY. THAT
2 SHE WAS NOTIFIED, YOUR HONOR.
3 THE COURT: IT’S MULTIPLE HEARSAY. YOU’RE
4 NOT —
5 MR. DUSEK: THAT PART IS NOT BEING OFFERED FOR
6 THE TRUTH.
7 THE COURT: I DIDN’T THINK SO. JUST TO SET THE
8 SCENE, I’LL ALLOW IT. IT’S NOT FOR THE TRUTH OF THE
9 MATTER.
10 GO AHEAD.
11 BY MR. DUSEK:
12 Q WHAT DID SHE TELL YOU SHE DID?
13 A SHE WENT UP TO THE AREA WHERE THE BODY WAS
14 AND LOOKED AT THE BODY.
15 Q DID SHE SAY WHO ALL WENT?
16 MR. FELDMAN: YOUR HONOR, I’M SORRY. I DIDN’T
17 HEAR THE WITNESS’S ANSWER. I APOLOGIZE. I HEARD
18 HIM SAY WHERE THE BODY WAS. I DIDN’T HEAR THE REST.
19 THE COURT: OKAY. YOU WANT TO READ IT BACK,
20 PLEASE.
21 (THE RECORD WAS READ BACK BY THE REPORTER.)
22 BY MR. DUSEK:
23 Q DID SHE SAY WHO WENT UP THERE WITH HER?
24 A SHE SAID ALL OF THE OTHER MEMBERS OF HER
25 TEAM WENT UP THERE.
26 Q DID YOU ASK HER IF ANYONE MOVED OR
27 DISTURBED THE BODY AT ITS RESTING SPOT?
28 A YES, I DID.
Page 71
1 Q WHAT DID SHE SAY?
2 A SHE TOLD ME THEY DID NOT.
3 Q DID YOU DO ANYTHING WITH REGARD TO THEIR
4 SHOES?
5 A THE SHOES?
6 Q THE SEARCHERS, THE FINDERS.
7 A THE SHOES WERE ALL IMPOUNDED.
8 Q WHY?
9 A TO USE TO COMPARE TO ANY PRINTS THAT WERE
10 FOUND AT THE SCENE.
11 MR. DUSEK: THANK YOU, SIR. NOTHING FURTHER.
12 THE COURT: COUNSEL?
13
14 RECROSS-EXAMINATION
15 BY MR. FELDMAN:
16 Q SIR, YOU TOLD US THAT YOU COULD TELL WHEN
17 YOU WENT INSIDE THE BEDROOMS, BASED ON THE COLORS
18 AND BASED ON THE FURNISHINGS, WHETHER IT WAS A BOY’S
19 ROOM OR A GIRL’S ROOM; RIGHT?
20 A THAT’S CORRECT.
21 Q BUT YOU ALSO TOLD US YOU COULDN’T TELL THAT
22 FROM THE OUTSIDE OF THE ROOMS; CORRECT?
23 A NOT WITH THE DOORS CLOSED.
24 Q AND THE VAN DAMS HAD TOLD YOU THAT THE
25 DOORS WERE CLOSED THAT NIGHT; ISN’T THAT TRUE?
26 MR. DUSEK: OBJECTION. TRIPLE, QUADRUPLE.
27 THE COURT: SUSTAINED.
28 MR. FELDMAN: NO FURTHER QUESTIONS. THANK YOU.
Page 72
1 THE COURT: ANYTHING FURTHER?
2 MR. DUSEK: NO.
3 THE COURT: ALL RIGHT. YOU’RE EXCUSED.
4 MR. FELDMAN: SUBJECT TO RECALL, PLEASE, YOUR
5 HONOR.
6 THE COURT: SUBJECT TO RECALL?
7 MR. FELDMAN: YES.
8 THE COURT: DO YOU WANT ALL WITNESSES SUBJECT TO
9 RECALL?
10 MR. FELDMAN: YES, YOUR HONOR.
11 THE COURT: ALL RIGHT. REMEMBER MY ADMONITION.
12 OKAY?
13 WE’LL TAKE A VERY BRIEF BREAK. I REALIZE
14 WE’RE GETTING CLOSE TO NOON, BUT WE’RE GOING TO KEEP
15 GOING RIGHT UP TO NOON, BUT WE’LL TAKE A BREAK FOR
16 FIVE MINUTES.
17 (RECESS.)
18 THE COURT: NEXT WITNESS, PLEASE.
19 MR. DUSEK: DR. BRIAN BLACKBOURNE.
20 THE COURT: OKAY.
21
22 BRIAN DOUGLAS BLACKBOURNE, M.D.,
23 PEOPLE’S WITNESS, HAVING BEEN FIRST DULY SWORN,
24 TESTIFIED AS FOLLOWS:
25
26 THE COURT: PLEASE TAKE THE STAND, SIR.
27 COMFORTABLE?
28 PLEASE TELL US YOUR NAME.
Page 73
1 THE WITNESS: DR. BRIAN DOUGLAS BLACKBOURNE.
2 THE COURT: SPELL YOUR LAST NAME, PLEASE.
3 THE WITNESS: B-L-A-C-K-B-O-U-R-N-E.
4 THE COURT: WHILE WE’RE AT IT, SPELL BRIAN.
5 THE WITNESS: B-R-I-A-N.
6 THE COURT: THANK YOU.
7 GO AHEAD.
8
9 DIRECT EXAMINATION
10 BY MR. DUSEK:
11 Q HOW ARE YOU EMPLOYED, SIR?
12 A I’M EMPLOYED AS THE COUNTY MEDICAL EXAMINER
13 FOR SAN DIEGO COUNTY.
14 Q WHAT DO YOU DO?
15 A OUR OFFICE INVESTIGATES ALL SUDDEN AND
16 VIOLENT DEATHS WITHIN THE COUNTY.
17 Q YOU’RE A MEDICAL DOCTOR?
18 A YES.
19 Q WOULD YOU GIVE US YOUR EDUCATIONAL
20 BACKGROUND, DOCTOR.
21 A BOTH MY UNDERGRADUATE AND MEDICAL EDUCATION
22 WAS AT THE UNIVERSITY OF ALBERTA, IN EDMONTON,
23 ALBERTA, CANADA. I GRADUATED IN 1962 WITH AN M.D.
24 DEGREE. I SERVED A ROTATING INTERNSHIP AT THE
25 VANCOUVER GENERAL HOSPITAL IN VANCOUVER, BRITISH
26 COLUMBIA. AND THEN SIX MONTHS OF TRAINING IN
27 SURGERY AT THE SANTA BARBARA CARTAGE HOSPITAL IN
28 SANTA BARBARA, CALIFORNIA.
Page 74
1 AT THAT POINT, I CHANGED MY AREA OF
2 INTEREST TO PATHOLOGY. SPENT 18 MONTHS OF TRAINING
3 IN PATHOLOGY AT THAT SAME HOSPITAL, FOLLOWED BY ONE
4 YEAR OF TRAINING IN NEUROPATHOLOGY AT THE BARROW
5 NEUROLOGICAL INSTITUTE OF ST. JOSEPH’S HOSPITAL IN
6 PHOENIX, ARIZONA. AND ONE YEAR AS A FELLOW IN
7 PATHOLOGY AT THE MEMORIAL HOSPITAL FOR CANCER AND
8 ALLIED DISEASES IN NEW YORK CITY.
9 I’M BOARD CERTIFIED IN BOTH ANATOMIC
10 PATHOLOGY AND FORENSIC PATHOLOGY.
11 Q WHAT IS PATHOLOGY?
12 A PATHOLOGY IS THAT PART OF THE LARGE FIELD
13 OF MEDICINE THAT DEALS MORE WITH THE DIAGNOSIS OF
14 DISEASE AS OPPOSED TO MOST PHYSICIANS WHO TREAT
15 PATIENTS WITH DISEASE. AND MOST PATHOLOGISTS WORK
16 IN A HOSPITAL, WHERE THEY EXAMINE TISSUE AND REMOVE
17 THE SURGERY (SIC) TO MAKE A DIAGNOSIS. THEY
18 SUPERVISE THE LABORATORY, AND THEY PERFORM AUTOPSIES
19 ON PERSONS WHO DIE OF NATURAL DISEASE IN THE
20 HOSPITAL.
21 Q YOU TALKED ABOUT FORENSIC PATHOLOGY. WHAT
22 IS THAT?
23 A FORENSIC PATHOLOGY IS A SUBSPECIALTY OF
24 ANATOMIC PATHOLOGY. AND IT DEALS QUITE SPECIFICALLY
25 WITH THE CORONER’S OFFICE OR MEDICAL EXAMINER’S
26 OFFICE WORK. WE’RE UTILIZING HISTORY FROM THE
27 INVESTIGATORS, X-RAYS, THE AUTOPSY EXAMINATION
28 ITSELF, MICROSCOPIC EXAMINATION, AND TOXICOLOGY. WE
Page 75
1 DOCUMENT THE CAUSE OF THE DEATH AND SIGN THE DEATH
2 CERTIFICATE.
3 Q DOES THIS MEAN THAT YOU DO AUTOPSIES?
4 A YES.
5 Q GIVE US YOUR WORK EXPERIENCE, WOULD YOU,
6 PLEASE.
7 A I STARTED IN MIAMI IN 1967. SPENT FIVE
8 YEARS AS A DEPUTY MEDICAL EXAMINER IN METROPOLITAN
9 DADE COUNTY, WHICH IS MIAMI, FLORIDA, FOLLOWED BY
10 TEN-AND-A-HALF YEARS AS DEPUTY CHIEF MEDICAL
11 EXAMINER IN WASHINGTON, D.C., FOLLOWED BY SIX — I’M
12 SORRY, EIGHT — SEVEN YEARS AS THE CHIEF MEDICAL
13 EXAMINER FOR THE COMMONWEALTH OF MASSACHUSETTS. AND
14 THEN I CAME HERE IN 1990 AS THE COUNTY MEDICAL
15 EXAMINER.
16 Q LET ME DIRECT YOUR ATTENTION BACK TO
17 FEBRUARY 27TH, I BELIEVE, THE YEAR 2002. DID YOU
18 BECOME INVOLVED IN THE DANIELLE VAN DAM CASE?
19 A YES, I DID.
20 Q WHAT WAS YOUR FIRST INVOLVEMENT?
21 A SERGEANT HOLMES CALLED ME ABOUT 9:15 AND
22 SAID THEY WERE READY FOR US TO GO TO THE SCENE. SO
23 I WENT TO THE OFFICE AND RODE WITH OUR TWO
24 INVESTIGATORS OUT TO THE SCENE IN DEHESA, ARRIVING
25 THERE AT ABOUT 10:50, 10:45 IN THE EVENING.
26 MR. FELDMAN: EXCUSE ME, YOUR HONOR. PARDON ME.
27 IT APPEARS AS THOUGH THE WITNESS IS READING FROM
28 SOMETHING. I DON’T KNOW WHAT IT IS. BUT I THINK
Page 76
1 THE ISSUE IS WHETHER HE’S TESTIFYING FROM HIS MEMORY
2 AS OPPOSED TO NOTES. I’D ASK FOR A COPY OF WHAT
3 HE’S REVIEWING AND ALSO THEY BE TURNED OVER.
4 THE COURT: DR. BLACKBOURNE, I DON’T KNOW WHAT
5 YOU HAVE UP THERE. I COULD GUESS BUT I’M NOT
6 SUPPOSED TO DO THAT. IF YOU’D TURN IT OVER, AND
7 THEN IF YOU NEED TO REFER TO SOMETHING, IT’S
8 IMPORTANT THAT WE KNOW WHAT YOU’RE REFERRING TO SO
9 THAT WE CAN IDENTITY IT FOR THE RECORD.
10 FAIR ENOUGH?
11 THE WITNESS: YES.
12 THE COURT: ALL RIGHT. THANKS.
13 MR. FELDMAN: THANK YOU, YOUR HONOR.
14 THE COURT: YOU’RE WELCOME.
15 BY MR. DUSEK:
16 Q WHY DID YOU GO TO THE SCENE?
17 A OUR OFFICE POLICY IS THAT WHENEVER THERE’S
18 A HOMICIDE AND THE BODY IS STILL AT THE SCENE, ONE
19 OF OUR DOCTORS ATTENDS THE SCENE. ONE OF OUR
20 DOCTORS IS ON CALL EACH EVENING.
21 Q WHO DID YOU GO OUT THERE WITH?
22 A TWO OF OUR INVESTIGATORS: JERRY SIMMONS
23 AND JAMES RAMIREZ.
24 Q THEY ARE INVESTIGATORS WITH THE MEDICAL
25 EXAMINER’S OFFICE?
26 A YES.
27 Q WHERE DID YOU GO?
28 A TO DEHESA ROAD.
Page 77
1 Q ABOUT WHAT TIME DID YOU GET OUT THERE?
2 A WE ARRIVED THERE AT 10:45.
3 Q AT NIGHT?
4 A AT NIGHT.
5 Q SO IT WAS DARK?
6 A YES.
7 Q WERE THERE ANY LIGHTS SET UP?
8 A YES. THERE WERE LOTS OF LIGHTS IN THE ROAD
9 AREA SO THE ROAD WAS WELL LIT UP. THE ACTUAL SCENE
10 ITSELF WAS FAIRLY DARK. WE USED FLASHLIGHTS.
11 Q WHAT DID YOU DO WHEN YOU ARRIVED?
12 A WELL, THE DETECTIVES GAVE ME A BRIEFING AS
13 TO WHAT WE HAD THERE. AND I WITH THE INVESTIGATOR
14 WENT UP TO WHERE THE BODY WAS. WE DID AN
15 EXAMINATION THERE ON THE SCENE.
16 Q WHERE DID YOU GO?
17 A WELL, THE SCENE WAS ACTUALLY ABOUT SIX FEET
18 UP A FAIRLY STEP DIRT INCLINE FROM THE ROAD, AND
19 ANOTHER 20 FEET UNDER A TREE.
20 Q WHEN YOU GOT UP THERE, WHAT DID YOU SEE?
21 A THE BODY OF A YOUNG FEMALE, LYING ON HER
22 BACK, UNDER THIS TREE. HER LEFT ARM WAS EXTENDED
23 OUT TO THE SIDE, THE RIGHT ARM WAS BENT UP, BENT AT
24 THE ELBOW. THE LEGS WERE STRAIGHT OUT. AND SHE WAS
25 LYING ON HER BACK.
26 Q DID SHE HAVE ANY CLOTHING ON?
27 A NO.
28 Q DESCRIBE HER CONDITION FROM YOUR
Page 78
1 OBSERVATIONS.
2 A THE BODY WAS SEVERELY DECOMPOSED AND ALSO
3 THERE’S A GREAT DEAL OF ANIMAL ACTIVITY.
4 Q WHEN YOU SAY “SEVERELY DECOMPOSED,”
5 DESCRIBE THAT.
6 A WELL, THE BODY WAS — THE SKIN THAT WAS
7 INTACT WAS MUMMIFIED OR LEATHER-LIKE. THERE WAS
8 REALLY NO ODOR AROUND THE BODY. BUT THE TISSUES
9 WERE DETERIORATED. HER EYES WERE TOTALLY
10 DISINTEGRATED.
11 Q HOW ABOUT THE REST OF HER BODY?
12 A WELL, A LOT OF THE BODY WAS DESTROYED BY
13 ANIMALS.
14 Q HOW COULD YOU TELL?
15 A WELL, THE SKIN AND THE SUBCUTANEOUS MUSCLES
16 AND ALL THE FAT WAS ABSENT FROM ABOUT THREE-QUARTERS
17 OF THE FRONT OF THE BODY.
18 Q WHAT PARTS?
19 A FROM BELOW THE COLLAR BONES, DOWN THE
20 ENTIRE TRUNK, THE EXTREMITIES, WITH THE EXCEPTION OF
21 THE RIGHT FOREARM AND THE LEFT LOWER LEG. THE
22 FEMURS OR THE THIGHS WERE JUST BARE FEMURS, BARE
23 BONES, ALMOST SKELETONIZED. AND THE LEFT FOOT WAS
24 ACTUALLY TOTALLY ABSENT.
25 Q HOW CLOSE DID YOU GET TO THE BODY?
26 A I WAS RIGHT TOUCHING THE BODY.
27 Q DID YOU DO ANYTHING WITH REGARD TO THE
28 EXAMINATION WHILE YOU WERE AT THE SCENE?
Page 79
1 A JUST REALLY A VISUAL EXAMINATION.
2 Q THEN WHAT DID YOU DO?
3 A I PLACED THE BODY IN A WHITE SHEET AND A
4 WHITE BODY BAG, AND OUR TRANSPORT CREW TRANSPORTED
5 HER BACK TO THE OFFICE.
6 Q DID YOU BAG ANYTHING BEFORE YOU DID THAT?
7 A YES, I’M SORRY. I DID BAG BOTH HANDS, BOTH
8 FEET, OR THE ANKLE ON THE LEFT, AND THE HEAD.
9 Q WHAT DOES BAGGING MEAN?
10 A WELL, IT JUST MEANS IF THERE’S ANY TRACE
11 EVIDENCE THAT’S ON THE HANDS OR FEET, OR THE HEAD,
12 IN THE PROCESS OF MOVING THE BODY AND TRANSPORTING
13 IT WON’T BE DISLODGED. SO IF IT IS DISLODGED, IT’S
14 DISLODGED INTO THIS WHITE PAPER BAG WHICH THE
15 CRIMINALIST CAN LATER EXAMINE AND RECOVER.
16 Q SO ONCE SHE WAS BAGGED, THEN WHAT HAPPENED?
17 A SHE WAS TRANSPORTED WITH OUR REMOVAL CREW
18 BACK TO THE OFFICE.
19 Q WHERE IS THE OFFICE?
20 A IT’S ON FARNHAM JUST OFF OF CLAIREMONT MESA
21 BOULEVARD IN SAN DIEGO.
22 Q DID YOU PERFORM AN AUTOPSY ON HER?
23 A THE FOLLOWING DAY, YES.
24 Q WHERE?
25 A IN THE OFFICE. MEDICAL EXAMINER’S OFFICE.
26 Q WHO WAS PRESENT?
27 A DETECTIVE KEYSER FROM THE SAN DIEGO POLICE
28 DEPARTMENT, TWO CRIMINALISTS, SAVAGE AND DULANEY,
Page 80
1 DR. CHRISTOPHER SWALLOW, ONE OF OUR MEDICAL
2 EXAMINERS.
3 Q A SECOND DOCTOR?
4 A YES. DAVID FAULKNER, WHO’S AN
5 ENTOMOLOGIST, WORKS WITH THE MUSEUM OF NATURAL
6 HISTORY. HE’S AN EXPERT ON BUGS. AND OUR AUTOPSY
7 ASSISTANT DAN CLASS (SIC) WAS THERE. DAN SHAFT WAS
8 THERE.
9 Q WERE PHOTOGRAPHS TAKEN?
10 A YES.
11 Q APPROXIMATELY HOW MANY?
12 A WELL, OUR OFFICE TOOK ABOUT 15 ON THE SCENE
13 AND ABOUT 30 AT THE AUTOPSY. SAN DIEGO P.D. WAS
14 ALSO TAKING PHOTOGRAPHS.
15 Q HOW LONG DID THE AUTOPSY TAKE?
16 A FOUR HOURS.
17 Q CAN YOU DESCRIBE FOR US THE PROCEDURE THAT
18 YOU WENT THROUGH AS YOU DID THE AUTOPSY ON THIS
19 YOUNG GIRL.
20 A WELL, FIRST OF ALL, THE SEAL ON THE BAG IS
21 BROKEN AND THE BAG IS OPENED. AND THE SAN DIEGO
22 P.D. TOOK PHOTOGRAPHS OF JUST THE WAY THE BODY WAS
23 LYING INSIDE THE BAG.
24 THEN THE PAPER BAGS ON THE HANDS, FEET, AND
25 HEAD WERE REMOVED AND TRANSFERRED TO THE
26 CRIMINALIST. THEN AGAIN, PHOTOGRAPHS OF THE BODY
27 WERE TAKEN. ANY TRACE EVIDENCE WHICH THE
28 CRIMINALIST SAW THEY WOULD TAKE. THEY DID CLIP THE
Page 81
1 FINGERNAILS, FOR INSTANCE. I DID SWAB THE MOUTH AT
2 THAT POINT.
3 I MADE MY DIAGRAM AND MY EXTERNAL PART OF
4 MY AUTOPSY, FILLING OUT ROUGH NOTES.
5 Q WHEN YOU GET INTO THE EXACT — EXACT
6 EXAMINATION OF THE BODY, IS THERE A PROCEDURE THAT
7 YOU GO THROUGH?
8 A YES.
9 Q WHAT IS THAT?
10 A WELL, FIRST OF ALL, WE OPEN THE TRUNK, THE
11 CHEST, THEN THE ABDOMEN, AND INSPECT THE VARIOUS
12 ORGANS WHICH ARE THERE.
13 Q BEFORE YOU DID THAT, DID YOU EXAMINE HER
14 MORE CLOSELY BEFORE YOU CUT?
15 A YES, WE DID, WITH GOOD LIGHTING AND SO ON,
16 WE EXAMINED THE WHOLE BODY.
17 Q DESCRIBE WHAT YOU SAW BEFORE YOU ACTUALLY
18 BEGAN THE INTERNAL EXAMINATION.
19 A WELL, PRETTY MUCH AS WE SEE ON THE SCENE.
20 THERE WAS A GREAT DEAL OF ANIMAL ACTIVITY,
21 DECOMPOSITION. HER HAIR WAS LONG AND BLONDE.
22 SHE HAD EARRINGS IN BOTH EARS, MICKEY MOUSE
23 TYPE DESIGN. THE BACK WAS PRESENT ON THE BACK OF
24 THE RIGHT EARRING. THE LEFT EARRING HAD NO — THE
25 BACK HAD FALLEN OFF.
26 SHE HAD AN EXPANDABLE PLASTIC NECKLACE
27 ABOUT HER NECK. AND NO CLOTHES ON THE BODY. AND
28 ALL THE INJURIES WHICH I PREVIOUSLY DESCRIBED FROM
Page 82
1 THE ANIMALS.
2 Q WERE YOU ABLE TO MAKE OUT MUCH OF HER FACE?
3 A YES. THE SKIN OF THE FACE WAS INTACT, BUT
4 MUMMIFIED.
5 Q LET ME SHOW YOU WHAT’S BEEN PREVIOUSLY
6 MARKED AS PEOPLE’S EXHIBIT 1. THIS FLYER, FOR
7 DANIELLE.
8 WAS THERE ENOUGH OF HER FACE TO BE ABLE TO
9 DETERMINE WHETHER OR NOT THE FACE WAS OF THAT LITTLE 10 GIRL?
11 A THE FACIAL FEATURES ARE SIMILAR. ALTHOUGH
12 THE SKIN IS OBVIOUSLY CHANGED. THE HAIR IS
13 OBVIOUSLY THE SAME.
14 Q WHAT DO YOU MEAN BY “SIMILAR”?
15 A IT BEARS A RESEMBLANCE TO THE PHOTOGRAPH.
16 Q DID YOU EXAMINE HER INTERNALLY?
17 A YES.
18 Q WHAT DID YOU FIND?
19 A WELL, THE ORGANS OF THE CHEST WERE REALLY
20 INTACT. THE SKIN AND MUSCLE WERE MISSING BUT THE
21 RIBS WERE ALL INTACT. AND THERE WAS FLUID IN EACH
22 PLEURAL CAVITY, WHICH WE COLLECTED.
23 Q WHAT’S THE PLEURAL CAVITY?
24 A THE CHEST CAVITY, INSIDE THE CHEST BUT
25 OUTSIDE OF THE LUNGS. THERE WAS 80 CC’S ON ONE SIDE
26 AND 50 CC’S ON THE OTHER, WHICH WE SAVED FOR OUR
27 TOXICOLOGY EXAMINATION.
28 THE HEART AND LUNGS WERE ESSENTIALLY NORMAL
Page 83
1 SHAPE AND SO ON. THEY’RE OBVIOUSLY DECOMPOSING OR
2 AUTOLYZING.
3 THE COURT: WHAT?
4 THE WITNESS: AUTOLYZING. THAT’S JUST
5 DECOMPOSITION.
6 THE COURT: THANK YOU.
7 THE WITNESS: THE HEART DEMONSTRATED NORMAL
8 VALVES AND NORMAL CORONARY ARTERIES AND ALL THAT.
9 THE LUNGS HAD A LITTLE BIT OF AIR IN THEM
10 AND THEY WERE CONGESTED, A LITTLE BIT OF EDEMA IN
11 THE LUNGS, AND THEY ALSO WERE DECOMPOSING. BUT THE
12 LUNGS WERE BETTER PRESERVED THAN THE REST OF THE
13 ORGANS.
14 BY MR. DUSEK:
15 Q THE ORGANS YOU JUST DESCRIBED, WOULD THEY
16 BE CONTAINED WITHIN THE RIB CAGE?
17 A WITHIN THE RIB CAGE AND ABOVE THE
18 DIAPHRAGM, YES.
19 Q HOW ABOUT BELOW THE RIB CAGE AND DIAGRAM?
20 WHAT DID YOU FIND?
21 A BELOW THE RIB CAGE, THERE WERE A LOT OF
22 MISSING ORGANS BECAUSE OF THE ANIMAL ACTIVITY. SO
23 THE ORGANS WHICH WERE THERE, THE LIVER WAS PRESENT
24 IN LARGE PART AND WAS DECOMPOSED. THE RIGHT KIDNEY
25 WAS PARTIALLY THERE. AND THE BOWEL WAS PARTIALLY
26 THERE. THERE WERE DEFECTS ON BOTH THE RIGHT SIDE OF
27 THE FRONT OF THE ABDOMEN AND THE LEFT SIDE OF THE
28 BACK OF THE ABDOMEN AS A RESULT OF ANIMAL ACTIVITY.
Page 84
1 AND SO THAT’S WHY SOME OF THE EVIDENCE WERE MISSING.
2 THE BOWEL WAS ALL INTACT BUT HAD BEEN EXTRUDED OUT
3 BEYOND THE ABDOMEN BECAUSE OF THE ANIMAL ACTIVITY.
4 Q DID YOU SEE A VAGINAL AREA?
5 A THE GENITALIA WERE ALL MISSING AS A RESULT
6 OF ANIMALS. THE WHOLE PELVIC STRUCTURES WERE VERY
7 SOFT AND DECOMPOSED. I DID IDENTIFY A PORTION OF
8 THE RECTUM AND I SWABBED IT AND GAVE THE SWABS TO
9 THE CRIMINALIST.
10 Q WHAT CONDITION WAS IT IN?
11 A IT WAS VERY SEVERELY DECOMPOSED.
12 Q HOW DOES THAT AFFECT THE ABILITY TO FIND
13 ANY FORENSIC EVIDENCE?
14 A WELL, I EXAMINED IT MICROSCOPICALLY AND THE
15 WHOLE LINING CELLS WERE ABSENT. THEY’D SLOUGHED
16 RIGHT OFF AND THERE WERE BACTERIA THERE. NOT MUCH
17 CHANCE OF FINDING ANYTHING THAT WAS IN THERE.
18 Q DID YOU TRY TO OBTAIN SWABS FROM OTHER
19 AREAS OF THIS CHILD?
20 A YES. IN THE — IN THE PELVIS, I LOOKED FOR
21 ANY TUBULAR STRUCTURE WHICH COULD BE A VAGINA, AND I
22 FOUND WHAT PROBABLY IS THE BLADDER. I DID SWAB IT
23 AND THE CRIMINALIST TOOK THE SWABS AS WELL.
24 MICROSCOPIC, IT’S THE SAME. THE MUCOSAL
25 CELLS HAVE ALL SLOUGHED OFF AND THE BACTERIA THERE.
26 Q DID YOU TRY TO SWAB HER MOUTH?
27 A YES, I DID.
28 Q WHAT WAS THE CONDITION OF HER MOUTH?
Page 85
1 A THE MOUTH WAS FULL OF THE SOFT MATERIAL,
2 MORE APPEARANCE OF MUD, YOU KNOW. I DON’T BELIEVE
3 IT WAS MUD. JUST THE TISSUE HAD DETERIORATED TO
4 THAT DEGREE. BUT WE DID SWAB IT.
5 Q WHAT WERE YOU LOOKING FOR?
6 A LOOKING FOR ANY ACTIVITY OF SEXUAL ACTIVITY
7 THERE.
8 Q HOW LONG WOULD YOU EXPECT A SPERM TO LAST
9 OR BE DETECTABLE IN A BODY IN THAT CONDITION?
10 A WELL, I PERSONALLY HAVE HAD A CASE FIVE
11 DAYS. BUT NOT MUCH BEYOND THAT.
12 Q WERE YOU ABLE TO DETERMINE HOW LONG SHE’D
13 BEEN DEAD?
14 A WITHIN A BROAD RANGE, YES.
15 Q HOW DID YOU MAKE THAT DETERMINATION?
16 A WELL, JUST EVALUATING THE DECOMPOSITION AND
17 THE OTHER — THE ANIMAL ACTIVITY, REALLY. IT’S
18 CERTAINLY CONSISTENT WITH THE THREE-AND-A-HALF WEEKS
19 SHE’D BEEN MISSING.
20 THE COURT: I’M SORRY?
21 THE WITNESS: CONSISTENT WITH THE
22 THREE-AND-A-HALF WEEKS THAT SHE HAD BEEN MISSING.
23 THE COURT: THANK YOU.
24 BY MR. DUSEK:
25 Q DID YOU OBTAIN ANY OTHER BODY SAMPLES OR
26 FLUID SAMPLES?
27 A WELL, THE ONLY FLUID FOR TOXICOLOGY WAS THE
28 CHEST FLUID WHICH I’VE MENTIONED.
Page 86
1 WE DID TAKE OUR NORMAL SMALL SAMPLES OF
2 EACH ORGAN WHICH WE SAVED IN A STOCK BOTTLE AND I
3 DID MAKE MICROSCOPIC SLIDES OF THE MAJORITY OF THE
4 ORGANS.
5 Q DID YOU FIND ANY BLOOD?
6 A NOT BLOOD THAT WE WOULD RECOGNIZE AS BLOOD,
7 NO. THE RED FLUID IN THE CHEST IS THE CLOSEST WE
8 CAN GET TO BLOOD IN A CASE THIS DECOMPOSED.
9 Q THE FACT THERE WAS NO BLOOD IN THE VEINS OR
10 THE HEART, DOES THAT TELL YOU ANYTHING?
11 A NO, IT DOESN’T TELL ME ANYTHING, BECAUSE OF
12 THE ANIMAL ACTIVITY REMOVING ALL THE MUSCLES.
13 Q HOW ABOUT HER HANDS? WAS THERE ANYTHING
14 DONE WITH HER HANDS?
15 A THE HANDS WERE INTACT. FROM THE WRISTS
16 DOWN, THE HANDS WERE TOTALLY INTACT BUT MUMMIFIED.
17 JUST LEATHER-LIKE. AND THE — JEFF GRAHAM FROM THE
18 SAN DIEGO POLICE DEPARTMENT LATENT FINGERPRINT LAB
19 CAME TO THE AUTOPSY AND EXAMINED THE HANDS, DID NOT
20 THINK HE COULD DO ANYTHING WITH THEM AT THE AUTOPSY
21 TO GET FINGERPRINTS OFF THEM. SO WE GAVE HIM THE
22 CHOICE OF TAKING THE HANDS OFF THE BODY AND TAKING
23 THEM BACK TO THE LAB TO REHYDRATE. THAT WAS WHAT HE
24 CHOSE TO DO. SO I REMOVED THE HANDS AND GAVE THEM
25 TO HIM TO REHYDRATE AT THE LABORATORY.
26 Q REHYDRATE MEANS WHAT?
27 A TO PUT THE FLUID BACK IN AND GET THE
28 WRINKLED LEATHER-LIKE SKIN TO THE POINT THEY CAN GET
Page 87
1 FINGERPRINTS FROM THE HAND, HOPEFULLY.
2 Q DO YOU KNOW DR. SPERBER?
3 A YES.
4 Q WHO IS HE?
5 A HE’S OUR FORENSIC ODONTOLOGIST, FORENSIC
6 DENTIST WHO WORKS WITH OUR OFFICE.
7 Q WHAT DOES HE DO IN RELATION TO AN AUTOPSY?
8 A WELL, IN A CASE LIKE THIS IT WOULD BE JUST
9 IDENTIFICATION OF THE INDIVIDUAL, THROUGH DENTAL —
10 THROUGH DENTAL RECORDS.
11 Q WAS HE THERE ALSO?
12 A HE WAS THERE DURING THE AUTOPSY, YES.
13 Q DOCTOR, WERE YOU ABLE TO DETERMINE A CAUSE
14 OF DEATH?
15 A NO. THE CAUSE RIGHT NOW IS STILL PENDING.
16 ALTHOUGH I DID NOT FIND ANY ANATOMICAL CAUSES OF
17 DEATH, WHICH MEANS THERE WERE NO INJURIES AT THE
18 TIME OF THE AUTOPSY OR ANY REASON TO, ANYTHING TO
19 EXPLAIN WHY SHE DIED.
20 Q DID YOU SEE ANY SIGNS OF INJURY OR ILLNESS
21 ON THIS CHILD?
22 A I DID NOT SEE ANY SIGNS OF INJURY — OF,
23 I’M SORRY, OF DISEASE PROCESS, NO.
24 Q WERE YOU ABLE TO DETERMINE A MANNER OF
25 DEATH?
26 A YES.
27 Q WHAT?
28 A HOMICIDE.
Page 88
1 Q WHY?
2 A THE WHOLE CIRCUMSTANCES OF THE CASE, HER
3 BEING MISSING AND BEING FOUND THERE IN DEHESA AND
4 UNDER A TREE, DECOMPOSED STATE.
5 Q BASED UPON WHAT WAS AVAILABLE TO PERFORM
6 THE AUTOPSY ON HER, WERE THERE THINGS THAT WERE
7 MISSING THAT WOULD HAVE HELPED YOU DETERMINE A CAUSE
8 OF DEATH?
9 MR. FELDMAN: SPECULATION; OBJECTION.
10 THE COURT: OVERRULED.
11 THE WITNESS: WELL, THE MAIN THING IS THE
12 DETERIORATION OF EVEN THE TISSUE THAT WAS THERE
13 MAKES IT DIFFICULT TO DETERMINE A CAUSE OF DEATH.
14 IF IT WAS AT ALL A LESS THAN, YOU KNOW, MAJOR, MAJOR
15 TRAUMA TYPE OF CAUSE.
16 MR. DUSEK: THANK YOU, DOCTOR.
17 THE COURT: I ASSUME YOU HAVE SOME EXTENSIVE —
18 MR. FELDMAN: I MAY BE A LITTLE WHILE.
19 THE COURT: THAT’S WHAT I THOUGHT. THIS IS A
20 GOOD TIME. FEW MINUTES BEFORE NOON.
21 REMEMBER MY ADMONITION, PLEASE. WE’LL SEE
22 YOU BACK PROMPTLY AT 1:30.
23 MR. FELDMAN: THANK YOU, YOUR HONOR.
24 (PROCEEDINGS ADJOURNED.)
25 * * *
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