2 – March 11, 2002 Afternoon – Transcript of David Westerfield preliminary hearing

PRELIMINARY HEARING – SAN DIEGO, CALIFORNIA, Monday, March 11, 2002, 1:31 PM


WITNESSES:
Dr. Brian Blackbourne, Detective John Keene


Page 89

1

3 P R O C E E D I N G S

4

5 THE COURT: Good afternoon.

6 MR. CLARKE: Good afternoon, Your Honor.

7 THE COURT: All right. Where is the doctor?

8 Okay. Remember, doctor, you’re still under oath.

9 THE WITNESS: Yes, Your Honor.

10 THE COURT: Please proceed.

11

12 Brian Blackbourne,

13 Resumed the stand and testified further as follows:

14

15 CROSS-EXAMINATION (RESUMED)

16 BY MR. FELDMAN:

17 Q. Good afternoon, sir.

18 A. Good afternoon, Mr. Feldman.

19 Q. Sir, I think you told us just a while ago on

20 direct that your first contact with the person who you

21 autopsied was at the scene; is that correct?

22 A. That is correct.

23 Q. Can you please tell us how did you get the call,

24 who called you, what caused you to go to the scene?

25 A. Sergeant Bill Holmes called me and told me they

26 were ready.

27 Q. When you say they were ready, meaning that

28 law enforcement had concluded their work?

Page 90

1 A. Yes. That the law enforcement was ready for the

2 medical examiner’s office to respond.

3 Q. All right. And did you yourself go to the scene?

4 A. Yes.

5 Q. And why did you do that, as opposed to just

6 allowing the coroner to do it?

7 A. Well, we always go to the scene, the doctors

8 always go to the scene of a homicide where they’re dead at

9 the scene.

10 Q. Why?

11 A. To do a preliminary examination, offer some early

12 information to the law enforcement, and also so we can look

13 over the surroundings of the scene in case some of those

14 surroundings may impact on our interpretation of the

15 injuries.

16 Q. In other words, it’s become the policy of the

17 medical examiner’s office, at least through you, to go to

18 the crime scenes so — to insure that the examiners obtain

19 the maximum accurate information possible; is that right?

20 A. Yes.

21 Q. And that’s actually the policy that you started,

22 isn’t it?

23 A. Yes.

24 Q. And that helps both sides because it allows your

25 independent offices to form opinions, right?

26 A. That’s correct.

27 Q. Now, sir, when you went to this particular scene,

28 could you tell us when did that happen, daytime, nighttime?

Page 91

1 A. Nighttime, 10:45 P.M.

2 Q. And I think on direct, it appeared to me anyway,

3 you were looking at some kind of paper. Do you have the

4 papers you were referring to?

5 A. Yes, I do.

6 Q. Would you please tell me what it was you were

7 referring to?

8 A. Well, I have a scene report which I provided

9 copies to the district attorney this morning.

10 MR. FELDMAN: May I approach, please?

11 THE COURT: Sure.

12 MR. FELDMAN: I just want to see.

13 THE COURT: Why doesn’t everybody look, make sure

14 we’re all on the same page.

15 MR. FELDMAN: That would work.

16 Q. Sir, you’re showing us one page. Was there more

17 pages?

18 A. This is all the scene report. Then we have the

19 draft autopsy report. We have a diagram of the body

20 indicating those areas which — where the skin was intact

21 and those where the skin was not intact.

22 Q. Yes. And then there appears to be additional

23 work —

24 A. This is a preliminary set of autopsy notes that I

25 write out before I dictate.

26 Q. Okay. And is there anything else that you

27 reviewed for purposes of refreshing your recollection in

28 anticipation of testifying?

Page 92

1 A. Those are the things.

2 Q. Thank you, sir.

3 Now, at the scene I think you described the body

4 as in a stage of advanced decomposition. Is that a fair

5 statement?

6 A. Yes.

7 Q. Is there a difference between we’ll say small,

8 medium and advanced, do you understand what I’m asking you,

9 composition — decomposition?

10 A. Yes, there is.

11 Q. Can you tell us, first, just progress — if you

12 can just give us a little bit of information as to how the

13 body decomposes over time.

14 A. Well, in the first 48 hours we expect to see a

15 little red — I’m sorry — green discoloration of the right

16 lower abdomen overlying the cecum, where the bacteria are.

17 The bacteria go through the soft tissues and discolor the

18 skin. That’s one of the first signs.

19 Rigor mortis, which has been — more or less

20 maximum between about 8 hours and 18 hours, begins to

21 recede.

22 Q. I want to stop you for a minute. I’m sorry.

23 Just to backtrack so we’re all tracking. With regard to

24 the first 48 hours that you first mentioned with regard

25 where there’s a green discoloration, that’s a result, is it

26 not, of anaerobic bacteria, which essentially decompose the

27 body from inside out?

28 A. That’s correct.

Page 93

1 Q. Then you mentioned rigor mortis. Is that

2 correct?

3 A. Yes.

4 Q. Can you define what you mean by rigor mortis,

5 please?

6 A. Rigor mortis is a postmortem change whereby after

7 a person dies, the muscles, without any circulation, begin

8 to accumulate the metabolic products of the muscle, and it

9 causes the muscles to become rigid. That rigidity occurs

10 gradually. First noticed in about 2 to 4 hours, and more

11 or less maximum in 6 to 8 hours. That degree of

12 rigor mortis stays, essentially we call it full rigor,

13 until about 18 hours. This is at a normal 72 degree room

14 temperature. It’s all totally temperature dependent. So

15 it’s speeded up if you’re inside a hot car, it’s

16 120 degrees, or slowed down if you’re outside in the winter

17 and it’s 30 degrees. But we just take an average

18 room temperature, 72 degrees.

19 Q. So what you’re assuming is homeostasis, correct?

20 A. Yes.

21 Q. In other words, a consistent ambient temperature?

22 A. Yes.

23 Q. And your answers with regard to the manner in

24 which the body decomposes assume a consistent

25 ambient temperature; is that right, sir?

26 A. Yes.

27 Q. Okay. So I think you just told us that 48 hours

28 or so you would expect rigor to stop or —

Page 94

1 A. Rigor would have receded by that time.

2 Q. All right. And when you say receded, what do you

3 mean to communicate?

4 A. That the extremities are limp. You can move them

5 at will.

6 Q. All right. And after the extremities become

7 limp, does the body ever return to rigor?

8 A. No.

9 Q. So once rigor passes, the body becomes limp, as

10 you put it; is that correct?

11 A. That’s correct. As long as the natural sequence

12 has been allowed to go through to the 48-hour — or 24,

13 48-hour time frame.

14 Now, if the body is interrupted when it’s in full

15 rigor and the rigor is broken by moving the joints, then

16 the body is left alone, then rigor mortis may recur in

17 those extremities, because it hasn’t really gone through

18 the full cycle.

19 Q. But you can’t tell, at least with regard to the

20 autopsy performed in this case, whether or not that rigor

21 was interrupted; is that correct, you cannot tell?

22 A. I cannot. That’s correct.

23 Q. After then rigor passes and the body softens,

24 what happens next?

25 A. Well then, the changes of the bacteria, they

26 begin to extend, as I mentioned, to the right lower

27 quadrant of the abdomen, but then the bacteria get in the

28 bloodstream. They go all through the bloodstream, the

Page 95

1 blood being a good nutrient for the bacteria, and we get

2 tissue gas formation where the body begins to bloat and the

3 skin shows changes, we call marbling, sort of a venous

4 pattern on the skin.

5 Q. With regard to the tissue gas formation, that

6 creates an odor, does it not?

7 A. It does.

8 Q. And presence or absence of odor may be

9 symptomatic or circumstantial evidence of the time of

10 death; isn’t that correct?

11 A. Yes. If the body is still in that sort of stage

12 of rigor where there is a lot of odor.

13 Q. Or at least it allows you an additional fact from

14 which you can draw an inference as to time of death; is

15 that correct?

16 A. It’s another help, yes.

17 Q. And among the ways that you as a forensic

18 scientist have to evaluate time of death, in addition to

19 what literature exists, involve what?

20 A. Well, the rigor, rigor mortis, the lividity, the

21 decomposition.

22 Q. I haven’t asked you to define lividity, sir.

23 Could you please do that?

24 A. Lividity is a phenomenon that after someone dies,

25 the blood, by just plain gravity, goes to the dependent

26 areas. So if someone is lying on their back, we see the

27 lividity in their back, on the back of the sides.

28 Sometimes on the face.

Page 96

1 Q. And is there a time at which or in which, within

2 which lividity normally will, I don’t know, kick in?

3 A. Well, lividity, again, is gradual. Begins

4 essentially as soon as the death occurs. We really don’t

5 see it prominently for a couple of hours, and becomes

6 active again after 6 to 8 hours.

7 Q. Doesn’t it fix at some point in time?

8 A. After about 8 hours it will be fixed in that

9 location, and if the body is then moved to another location

10 and another part of the body is face down, some blood will

11 go to the new position, but the older, fixed lividity will

12 stay in the original position.

13 Q. So the presence of fixed lividity, too, is

14 another element that you can utilize in assisting you in

15 forming opinions as to time of death; is that correct, sir?

16 A. When it’s fixed, you can, yes.

17 Q. So we have lividity, rigor mortis, we have the

18 extent to which the body’s decomposed, meaning the tissue

19 gas formation that you referenced. What else do you look

20 for —

21 A. Well, the body temperature.

22 Q. And with regard to the body temperature, there is

23 literature that suggests the best way to get to the body

24 temperature is to stick a thermometer in and measure it

25 from the liver; is that right?

26 A. We don’t do that. We don’t think that is an

27 appropriate thing to do.

28 Q. But I asked you the literature is out there

Page 97

1 basically suggesting, correct, that one way within which

2 you can gain information about internal core temperature is

3 by sticking a thermometer in and evaluating the liver; is

4 that correct?

5 A. There is literature on that, yes.

6 Q. AND with regard to the issue of core temperature,

7 does that have a particular meaning to you?

8 A. Yes.

9 Q. Can you tell us what that means, please?

10 A. The core temperature would be the inner core of

11 the body, as opposed to the extremities or the fingers or

12 toes.

13 Q. And with regard to the process of death, when an

14 individual dies, the body cools from the outside in; is

15 that correct?

16 A. That’s correct.

17 Q. And so you can utilize core temperature under

18 some circumstances, at least to assist you in determining,

19 again, or obtaining an additional circumstance with regard

20 to inferences on time of death; is that right?

21 A. You can do that, yes.

22 Q. What about vitreous humor? What’s

23 vitreous humor?

24 A. Well, there was a lot of work done in the ’50’s

25 and ’60’s about determining the time of death from the

26 vitreous Potassium. Over the years that has been

27 discredited and the plus or minus range was greater than we

28 can do with just plain rigor mortis and lividity and body

Page 98

1 temperature.

2 Q. When we talk — when you and I talk about

3 vitreous humor, we’re actually talking about the fluid

4 that’s behind the eyeballs in human beings, correct?

5 A. In the eyeball, yes.

6 Q. And you’re aware there exists a significant body

7 of literature starting I guess in the mid-’60’s where

8 individuals have sought to ascertain time of death within

9 plus or minus 4 hours by utilization of vitreous humor

10 studies, correct?

11 A. Yes. But it was greater than four hours if you

12 went beyond the, you know, five or six-hour range.

13 Q. After the tissue gas formation and the marbling

14 that you were referencing just a little while ago, can you

15 tell us what’s the next stage of decomposition?

16 A. Well, infestation by insects and beetles and all

17 those little bugs.

18 Q. And you told us, I think on direct examination,

19 that one of the individuals that was present with you in

20 the, I guess autopsy, was a person from the museum of

21 natural history; is that right?

22 A. That’s correct.

23 Q. That would be David Faulkner; is that right?

24 A. That’s correct.

25 Q. And David Faulkner is an entomologist, correct?

26 A. Yes.

27 Q. And your office uses the services of forensic

28 entomologists to assist you in ascertaining time of death;

Page 99

1 isn’t that correct?

2 A. We usually collect the specimens, and then he

3 does the analysis.

4 Q. In this case was he present to collect specimens?

5 A. Yes, he was.

6 Q. Is that unusual?

7 A. It is unusual in my experience. Usually the

8 law enforcement collects a bunch of beetles and maggots and

9 sends them to him, but in this case he came to the autopsy

10 and collected them himself.

11 Q. And also there’s a body bag that I think you

12 testified to on direct examination which also might

13 collect, I don’t know, would you call it debris from the

14 body as the body is transported from the location it’s

15 found to the coroner’s office?

16 A. Yes. The body was actually placed in a clean

17 white sheet and then inside the white body bag.

18 Q. All right. And so have you preserved the

19 white body bag?

20 A. I believe they’re both preserved by the San Diego

21 police department.

22 Q. Have you looked inside?

23 A. I looked inside at the time, and Mr. Faulkner was

24 collecting the insects which were lying free in there, too.

25 Q. Do you recall, can you tell me from what part of

26 the body did Mr. Faulkner remove insects, if you recall?

27 A. Well, they were more or less all over, but more

28 in the mouth area than anywhere else.

Page 100

1 Q. And based on your experience in doing autopsies,

2 and especially autopsies involving individuals who have

3 been left out for some period of time, is the mouth

4 generally a good cavity to preserve or obtain evidence

5 from?

6 A. It’s a favorite for the maggots and small insects

7 because it’s moist and hidden in there. They can go in

8 there and —

9 Q. Now, I think you used the word mummification

10 earlier?

11 A. Yes.

12 Q. Can you please tell us at what stage of the

13 decomposition process would you expect mummification to

14 occur?

15 A. Well, mummification occurs only in sort of a dry,

16 warm atmosphere. Commonly in the desert in the summertime.

17 This body was mummified. All the skin that was still

18 present was mummified, a brown leathery appearance.

19 Q. And does that — is that — I’m sorry. Is that

20 the same as you said as mottling or is that something

21 different?

22 A. That’s something different.

23 Q. Can you please explain to me the difference

24 between what you’re describing as mummification and

25 mottling of the skin?

26 A. Well, mottling is an earlier phase of

27 decomposition, and it’s when the skin is intact, you get

28 sort of like marble, the veins in the marble, we get a

Page 101

1 pattern like that on the skin. It resembles the blood in

2 the — the vessels in the skin, as an earlier sign under

3 different circumstances than the mummification.

4 Q. Now, with regard to your conclusion, you told us

5 on direct examination that in your opinion this was a

6 homicide; is that correct?

7 A. Yes.

8 Q. That just means an unexplained death; isn’t that

9 right?

10 A. Means death at the hands of another.

11 Q. But we don’t know how — all you know is that you

12 found — this body was presented to you; is that correct?

13 A. We know a lot of people looking for the body and

14 it finally was found in Descanso.

15 Q. But, for instance, you were looking for bullet

16 wounds, correct?

17 A. I was looking, yes.

18 Q. Didn’t find any of those, did you?

19 A. I did not.

20 Q. Looking for knife wounds, correct?

21 A. Yes.

22 Q. Didn’t find any, did you?

23 A. No.

24 Q. Looking for ligature marks, weren’t you?

25 A. Yes.

26 Q. Didn’t find any, did you?

27 A. No.

28 Q. Looking for sperm, as Mr. Dusek mentioned,

Page 102

1 correct?

2 A. Right.

3 Q. Didn’t find any, did you?

4 A. The police did that examination, but — the

5 police did that examination. Not our office.

6 Q. So in other words, even the use of that word has

7 nothing whatsoever to do with anything you obtained or

8 observed in connection with your autopsy; is that right?

9 A. It’s a more general observation, yes.

10 Q. You were looking for semen, that’s part of some

11 of the toxicology you might do later; is that correct?

12 A. No. The toxicology is on the blood. The

13 police department does all the sexual assault work-up,

14 including the sperm.

15 Q. With regard to the toxicology in this case, has

16 the — has there been a tox screen done, do you know?

17 A. They’re in the process of doing it. It Will be

18 several weeks before it’s completed.

19 Q. All right. So we don’t know or at least your

20 office hasn’t been able to obtain the results with regard

21 to the — to any of the toxicology yet; is that correct?

22 A. That’s correct.

23 Q. So then is it fair to say that at least what

24 you’ve done so far is look to the gross findings?

25 A. Yes.

26 Q. Specifically you were looking for evidence, were

27 you not, of — we’ll say strangulation?

28 A. I was.

Page 103

1 Q. And with regard to the area of the neck, I think

2 you comment in your autopsy that you found no — nothing to

3 suggest any injury to the neck, correct?

4 A. I found no injuries to the neck, that’s correct.

5 Q. And when you find a strangulation, you generally

6 find injuries to the neck; isn’t that correct?

7 A. Yes. There’s usually injuries in the neck, on

8 the skin, in the muscles, in the cartilages.

9 Q. And you found no injuries in any of the areas

10 that you just articulated; isn’t that correct?

11 A. That’s correct.

12 Q. Therefore, it’s fair to say that one conclusion

13 we can draw from your testimony is that this young girl did

14 not die by strangulation, correct?

15 A. Did not have the injuries normally associated

16 with strangulation, yes.

17 Q. So would you agree with me that one reasonable

18 interpretation of the evidence that you found is that she

19 did not die by strangulation?

20 MR. DUSEK: Objection. Calls for speculation.

21 THE COURT: Overruled.

22 THE WITNESS: As I stated, I did not find any of

23 the injuries we normally associate with strangulation.

24 BY MR. FELDMAN:

25 Q. Nor did you find any of the injuries that you

26 normally associate with sexual assault; isn’t that correct?

27 A. We were really unable to do that part of the

28 examination.

Page 104

1 Q. Well, one of the things that you’re trained to

2 do, and certainly there were lots of law enforcement that

3 were interested, as was the community, was to look to

4 determine whether or not there was any evidence of

5 sexual abuse; isn’t that right?

6 A. Yes.

7 Q. And I think you told us on direct examination

8 that you had swabbed an area or some areas for later

9 forensic evaluation by law enforcement; is that correct,

10 sir?

11 A. That’s correct.

12 Q. With regard to the areas that you swabbed, could

13 you please tell me what were those areas?

14 A. The rectum and another tubular structure which

15 either was a vagina or the bladder. Probably the bladder.

16 Q. And those swabs, did you look at them

17 microscopically?

18 A. No. I transferred those over to the criminalist

19 from the San Diego Police Department.

20 Q. And who was that?

21 A. Savage and Dulaney.

22 Q. In the ordinary course of business, would that be

23 something that you, sir, as a forensic pathologist just

24 would look at?

25 A. We normally make one set of slides for ourselves,

26 and then give one set of slides to the law enforcement.

27 Q. In this case you did not do that?

28 A. I did not do that.

Page 105

1 Q. Why?

2 A. Because the tissue was so deteriorated we just

3 gave them all to the police.

4 Q. So all the tissue was —

5 A. Yes.

6 Q. Because in your view there wasn’t really anything

7 that could — inferences couldn’t be drawn from what was

8 there because it was too deteriorated?

9 A. Yes.

10 Q. You looked specifically in the area of the neck,

11 and I note that you said that there were no traumatic

12 injuries observed on the anterior or lateral neck; is that

13 correct?

14 A. Yes.

15 Q. I’m sorry. I get confused. Which is the

16 anterior and which is the lateral?

17 A. The anterior is the front. The lateral is the

18 sides.

19 Q. You also said the back of the neck also

20 demonstrates no observable injury; is that correct?

21 A. That’s correct.

22 Q. So, again, it appears, at least in terms of your

23 evaluation of the neck, what you’re seeking to either

24 include or rule out is evidence of strangulation or

25 something; is that correct?

26 A. Yes.

27 Q. In your professional experience, when

28 strangulation or — I’ll say strangulation has occurred,

Page 106

1 would you expect there to be some damage to the

2 thyroid cartilage or the hyoid bone?

3 A. Yes, there would, under normal circumstances.

4 Q. And in this case you found no evidence of injury

5 to the hyoid cartilage or the thyroid bone?

6 A. That is correct. Although they’re cartilaginous

7 in a young girl of this age.

8 Q. You also indicate that rigor mortis, by the time

9 at least you did your autopsy, had receded, and lividity

10 was indeterminate due to decomposition; is that correct?

11 A. That’s correct.

12 Q. When you discussed the cardiovascular system, you

13 indicated that the intima, if I’m saying it correctly,

14 exhibits hemolytic staining, and that all the branch ostia

15 are patent. Would you please tell me what that means?

16 A. I believe you’re reading about the aorta, are

17 you?

18 Q. Cardiovascular system, page 10 of what I have,

19 and I’d be happy to show it to you.

20 A. Bottom of that paragraph, right?

21 Q. Yes, sir.

22 A. Okay. That’s the aorta, the large blood vessel

23 that takes the blood from the heart and distributes it to

24 the rest of the body.

25 Q. What I’m wondering is what’s the intima?

26 A. The intama is the lining of that, and it’s

27 stained. Hemolytic staining, that’s when blood breaks

28 down, and the red hemoglobin stains the inside of the

Page 107

1 aorta. That’s a postmortem change noticed after two or

2 three days.

3 Q. So, in other words, what you’re saying is it’s a

4 stain that consistent with a body being left out for a

5 period of time?

6 A. Yes.

7 Q. And you said all the branch ostia are patent.

8 A. They’re patent, wide open. They’re not narrowed.

9 Q. I’m sorry. I don’t know what the branch ostia

10 are.

11 A. Oh, all the branches going to the kidneys and the

12 stomach and the liver.

13 Q. Okay. Is this a change postmortem which is

14 consistent or inconsistent with homicide?

15 A. No. That’s a normal finding.

16 Q. You indicated in your report that a portion of

17 the distal colon front/rectum was identified and swabbed.

18 A. Yes.

19 Q. What’s distal?

20 A. Distal is the going further down.

21 Q. All right.

22 A. It’s the lower part of the colon as it joins the

23 rectum.

24 Q. And I think you had told us that portions of the

25 lower abdomen had been opened up by animals?

26 A. Yes.

27 Q. Does the findings that you might make with regard

28 to the distal portion — a portion of the distal colon and

Page 108

1 rectum, are those findings affected in any manner by the

2 animal damage that may have been done?

3 A. No. The animals did not damage that area.

4 Q. Another observation you made was that there

5 appeared to be no petechial hemorrhaging, no petechiae; is

6 that right?

7 A. What paragraph is that, sir?

8 Q. I’m at page 13, line 3. Reads the mucosa

9 demonstrates moderate otolysis without petechiae.

10 A. Yes. That’s in the larynx paragraph. So that’s

11 a description of the lining of the larynx.

12 Q. Well, the petechial hemorrhages are something

13 that you would look for as a forensic pathologist; isn’t

14 that correct?

15 A. Yes.

16 Q. And the reason that you look for petechial

17 hemorrhages is because the petechiae are actually blood

18 vessels that have popped during — I guess the causation of

19 death; isn’t that right?

20 A. Or prior to death.

21 Q. All right. So the existence of petechial

22 hemorrhages is circumstantial evidence of a homicide,

23 correct?

24 A. Not always. It could be a natural death.

25 Q. Sometimes the presence of petechial

26 hemorrhages —

27 A. Sometimes, yes. In strangulation we commonly see

28 them.

Page 109

1 Q. And does the absence then of petechial

2 hemorrhages, is that a circumstance that’s consistent with

3 a natural death?

4 A. The absence of them is consistent with a lot of

5 deaths, yes. It’s just a negative finding.

6 Q. A positive finding is consistent with something

7 I’ll say adverse. A negative finding you’re saying is

8 basically neutral?

9 A. No. I mean you can have strangulation with no

10 petechiae in the larynx. That’s all I’m saying.

11 Q. How about in the eyes?

12 A. In the eyes we normally see petechiae in

13 strangulation.

14 Q. And how about in the upper areas of the face?

15 A. We can occasionally see the upper eyelids, the

16 forehead, the nose with petechiae in strangulation.

17 Q. And what about in circumstances where the body is

18 mummified? Have you ever seen petechial hemorrhaging or

19 searched for evidence of petechiae in circumstances where

20 the body is — I guess, as you described it, mummified?

21 A. I cannot recall a case where it’s mummified.

22 That’s pretty far out decomposition. Early decomposition

23 when you’re still able to examine the eyes, you still may

24 see petechiae. We could not examine the eyes because they

25 were essentially destroyed by decomposition.

26 Q. Okay. Now, I think you’ve told us on direct

27 examination that, in your view, the — your findings were

28 consistent with the proposition that the body could have

Page 110

1 been there for, I don’t know, I think you said two and a

2 half, three and half weeks, somewhere like that; is that

3 correct?

4 A. It’s consistent with that.

5 Q. Isn’t it also the case that one reasonable

6 interpretation of your findings and the body condition is

7 that the body could have been killed after, we’ll say

8 February the 5th? Can’t rule that out, can you, sir?

9 A. No, we can’t rule that out.

10 Q. So one reasonable interpretation of the evidence

11 is that Danielle was killed after February 5th, just based

12 on the your findings today; isn’t that correct?

13 A. That also would be consistent.

14 Q. What about — in terms of your findings, would

15 you say that the body — it’s also reasonable

16 to — I’m sorry — try that again.

17 Is another reasonable interpretation of your

18 findings that Danielle could have been killed after the

19 6th?

20 A. Also it could be consistent.

21 Q. How about the 7th?

22 A. Yes.

23 Q. 8th?

24 A. Yes.

25 Q. 9th?

26 A. Yes.

27 Q. February 10th?

28 A. Yes.

Page 111

1 Q. At what point, the 11th — I mean how far do I go

2 before you say no, I guess is what I’m really asking?

3 A. Well, the body is decomposed and mummified. It

4 certainly has been out there weeks. I don’t think it’s one

5 week. I think it’s more than one week.

6 Q. Okay.

7 A. Two, two and a half, three, three and half. All

8 of those would be consistent.

9 Q. So that means, though, that if an individual was

10 in jail on February 4th, one reasonable interpretation of

11 the evidence is that that individual who was in jail on

12 February the 4th could not have been the assailant because

13 your findings are consistent with the notion that two weeks

14 prior to the 26th, which would have been the 12th, might

15 have been the date of death, correct?

16 MR. DUSEK: Objection. Argumentative,

17 speculation.

18 THE COURT: Sustained.

19 MR. FELDMAN: Just if I could have one moment?

20 THE COURT: You may.

21 MR. FELDMAN: I’m sorry. Just a couple more

22 questions.

23 Q. When the body passes through rigor, post

24 lividity, and decomposes or starts decomposition, does the

25 musculature or body structure in any way — does it become

26 limp? What I’m asking is does the body become limp or does

27 it become rigid post lividity, post rigidity, post

28 rigor mortis?

Page 112

1 A. Well, the rigor mortis is the only thing that

2 relates to the body’s firmness, and once it’s passed

3 through rigor mortis, the body actually becomes limp, the

4 muscles become limp, and the extremities can be moved

5 freely, at will. There’s no resistance to movement.

6 Q. So, in other words, if a body was in the

7 condition that you just articulated and just thrown down,

8 we’ll say, whatever gravity happens to be is how the body

9 might lay; is that correct?

10 A. Yes.

11 MR. FELDMAN: No further questions. Thank you

12 very much.

13 THE COURT: Counsel?

14

15 REDIRECT EXAMINATION

16 BY MR. DUSEK:

17 Q. Did you attempt to find indications of

18 sexual abuse?

19 A. We attempted to find, yes.

20 Q. Was the condition of the body helping you or

21 hurting you in that investigation?

22 A. Condition was hurting us in that regard.

23 Q. Why?

24 A. The tissues had deteriorated by decomposition.

25 Q. All right. You talked about petechial

26 hemorrhaging. Where do you see that?

27 A. Most commonly in the eyes and the tissues around

28 the eyes, like the eyelids, sometimes on the forehead,

Page 113

1 sometimes on the cheeks.

2 Q. And what does it look like?

3 A. Little tiny pinpoint hemorrhages.

4 Q. Were you able to see anything like that on the

5 body that you were examining?

6 A. No, we did not.

7 Q. Why not?

8 A. Because the eyes were totally destroyed and the

9 tissue of the face was actually mummified, sort of

10 leather-like.

11 Q. So any questions regarding petechial hemorrhaging

12 has nothing to do with the cause of death or time of death?

13 A. Well, they may have something to do with it, but

14 nothing I could identify at the time to speak to it at all.

15 Q. All right. And there was another type of death,

16 I don’t think we got into, asphyxiation. What is that?

17 A. Asphyxiation is the loss of oxygen to the

18 tissues.

19 Q. How does that happen?

20 A. Well, it can happen a lot of different ways.

21 Commonly in strangulation when pressure is placed around

22 the neck. Smothering, when something is placed over the

23 nose and mouth or hands are pressed over the nose and

24 mouth. Compression of the neck, aside from strangulation,

25 just pressure on the neck. Pressure on the chest can cause

26 asphyxia. A lot of pressure where you can’t breathe.

27 Q. If one were to place a hand over the nose and

28 mouth of a child this size, would you expect to see any

Page 114

1 signs of that in the body condition that you saw?

2 A. When the body’s immediately dead, we may see

3 fingernail marks, abrasions. But with this mummification,

4 there’s not much chance of seeing subtle marks on the face.

5 Q. And if a pillow was pushed over a child’s face,

6 would that cause asphyxiation?

7 A. It could, yes.

8 Q. Would you expect to see any signs of that if you

9 got the body right now?

10 A. Well, right now, I have seen on a couple of

11 occasions a nose being pressed to the side and the pillow

12 case showing lipstick and that sort of physical evidence,

13 but at this period of time with this decomposition, I would

14 not expect to see much on the face.

15 MR. DUSEK: Thank you, sir. Nothing further.

16 THE COURT: Counsel?

17

18 RECROSS-EXAMINATION

19 BY MR. FELDMAN:

20 Q. Sir, any X-rays done on the body?

21 A. Yes. X-rays were taken. I believe it was four.

22 Q. And one of the purposes of the X-rays is to

23 determine whether or not bones were broken; is that

24 correct?

25 A. For fractures and foreign material on the body,

26 yes, in the body.

27 Q. When counsel was talking about asphyxiation and

28 placing pillows or hands over the face, you many times have

Page 115

1 seen circumstances where that’s occurred; is that correct?

2 A. A few occasions, yes.

3 Q. And on those few occasions have you noticed

4 broken bones in the area of the nose, have you?

5 A. No. Not necessarily.

6 Q. The literature would suggest, would it not, that

7 there are occasions where I’ll say asphyxiation occurs in

8 the manner that counsel described where there is fractures

9 of the bones which would assist pathologists or

10 medical examiners to form opinions as to the cause of

11 death; isn’t that right?

12 A. That would be pressure in excess of what is

13 necessary just to suffocate someone.

14 Q. Well, you talked about, for instance, compression

15 of the — or pressure on the chest.

16 A. Yes.

17 Q. Did you notice any broken ribs?

18 A. No. There were no broken ribs.

19 Q. So is that a finding that’s consistent or

20 inconsistent with compression on the chest?

21 A. Well, in a 7-year-old one does not need to

22 fracture ribs. They are so flexible that they can be

23 compressed and pop back. But there were no fractures

24 identified.

25 Q. And for that matter, there’s no way for you to

26 tell whether that occurred; isn’t that correct?

27 A. There’s no way for me to tell that, that’s

28 correct.

Page 116

1 Q. So, again, the questions raise speculations, but

2 you don’t have scientific data to support any conclusion

3 about asphyxiation; isn’t that correct?

4 A. Not as direct evidence I found at the autopsy,

5 no.

6 Q. In a mummified body, might you expect to find, if

7 a person had sharp fingernails, might you expect to find

8 evidence of fingernails if they were placed over the face

9 in a particular manner?

10 A. Again, it’s a matter of how much pressure and how

11 long the fingernails are and how much fighting there was

12 against that force. Certainly they can leave fingernail

13 marks on the face, and they have to be deep and pretty

14 obvious to still be apparent with mummification.

15 Q. Did you see any evidence of that?

16 A. I did not.

17 Q. Let me ask you this question. Hypothetically, if

18 you were to assume that an individual was trying to

19 suffocate somebody, and the suffocatee, the person who was

20 being suffocated, was trying to resist, and resisted with

21 such force that there’s fingernail marks on a person’s arm,

22 would you expect, conversely, in a mummified body, that you

23 might see evidence of the force that was being used by the

24 suffocator?

25 A. Again, it would depend on the method of

26 suffocation. A pillow does not necessarily transmit any

27 direct injury to the body. Hands, fingernails obviously

28 could. Plastic bag does not.

Page 117

1 Q. So basically presence or absence of we’ll say

2 scrape marks on an individual doesn’t necessarily mean that

3 that person ever suffocated anybody; isn’t that correct?

4 A. Not by itself, no.

5 MR. FELDMAN: Nothing further.

6 THE COURT: Counsel?

7 MR. DUSEK: I’ve had marked as People’s exhibit 2

8 a copy of a picture that counsel’s had.

9 MR. FELDMAN: Yeah.

10

11 REDIRECT EXAMINATION

12 BY MR. DUSEK:

13 Q. I’ll show you what’s been marked as People’s

14 exhibit 2, doctor. Do you recognize what we have here?

15 A. Yes.

16 Q. What is it?

17 A. This is the body I received — I recovered — I

18 saw out in Dehesa.

19 Q. Does that show the face of the body and the head

20 region?

21 A. Yes, it does.

22 Q. Does that show what you were working with when

23 you were asked to do this autopsy?

24 A. Yes.

25 Q. Does that really show the state of the face, the

26 eyes, the skin of that person?

27 A. Well, the photograph is a little dark, so it’s

28 not really accurate, but it — in general it does.

Page 118

1 MR. DUSEK: Thank you, sir. Nothing further.

2 THE COURT: Anything further, counsel?

3 MR. FELDMAN: I’m just looking at my photos,

4 judge. Excuse me.

5 THE COURT: All right.

6 MR. FELDMAN: No further questions.

7 THE COURT: Thank you, sir. You’re excused.

8 Please remember my admonition.

9 THE WITNESS: Yes, sir.

10 THE COURT: Okay.

11 MR. DUSEK: Dr. Sperber.

12 THE COURT: Okay. Somebody ask Dr. Sperber to

13 come in, please.

14 THE BAILIFF: He’s coming right now, Your Honor.

15 THE COURT: All right.

16 Do we have witnesses scheduled for today other

17 than Dr. Sperber?

18 MR. DUSEK: Yes.

19 MR. FELDMAN: But there is an issue when we get

20 an opportunity to discuss with the court concerning

21 scheduling, whenever Your Honor has the time.

22 THE COURT: I understand. You don’t like 9:00 to

23 4:30?

24 MR. FELDMAN: No. No.

25 THE COURT: I’m just —

26 MR. FELDMAN: Actually 9:15, 9:30.

27 THE COURT: Good afternoon, doctor.

28 THE WITNESS: Good afternoon.

Page 119

1 THE COURT: Please raise your right hand.

2

3 Norman Sperber,

4 Called as a witness by and on behalf of the People,

5 having been first duly sworn, testified as follows:

6

7 THE COURT: Please take the stand.

8 THE WITNESS: Thank you, Your Honor.

9 THE COURT: Are you ensconced?

10 THE WITNESS: Yes, sir.

11 THE COURT: Good. Tell us your name, please.

12 THE WITNESS: Norman Donald Sperber.

13 THE COURT: Spell your last name, please.

14 THE WITNESS: S-P-E-R-B-E-R.

15 THE COURT: Thank you. Go ahead.

16

17 DIRECT EXAMINATION

18 BY MR. DUSEK:
19 Q. How are you employed, doctor?

20 A. I have two professions. I am a general dentist

21 in the state of California, and specifically San Diego.

22 I’m also the chief forensic dentist for the county, which

23 means I am sought on occasion by the medical examiner’s

24 office and the various police departments and the Sheriff’s

25 departments as far as forensic matters are concerned.

26 Q. What does a forensic dentist do?

27 A. Basically identify people who are no longer

28 identifiable. We may not have fingerprints, we may not

Page 120

1 have the face, but the teeth are very durable structures,

2 and many people have dental records, and by comparing the

3 records, specifically X-rays that we take of an individual,

4 comparing them to the known X-rays of the person who this

5 might be, we look for a comparison.

6 Q. Would you give us your educational background,

7 doctor?

8 A. Yes, sir. Bachelor of arts degree in zoology and

9 chemistry from Carlton college in Minnesota. A doctor of

10 dental surgery degree from New York university, college of

11 dentistry.

12 Q. How long have you been working in this field?

13 A. I received my degree in 1954.

14 Q. And working as a forensic dentist, how long have

15 you been doing that?

16 A. Since 1963.

17 Q. Where?

18 A. In this county, as well as other counties in

19 other states.

20 Q. Where else have you done this work?

21 A. Well, 26 other — about 22 other states that I’ve

22 testified in and numerous counties in the state of

23 California.

24 Q. Are you able to estimate for us how many times

25 you’ve been asked to try to make an identification through

26 dental records?

27 A. Well, every time we try to, but I probably have

28 looked at perhaps 4 or 5,000 victims over my career.

Page 121

1 Q. Are there any cases of note?

2 A. There are a few.

3 MR. FELDMAN: Objection. Relevance.

4 THE COURT: Overruled.

5 MR. FELDMAN: Cases of note? Vague.

6 THE COURT: Overruled.

7 THE WITNESS: The Ted Bundy case in Florida. The

8 Craig Peyer case, homicide case here in the county.

9 Henry Hubbard case, another law enforcement officer in this

10 county. The Jeffrey Daumer case in Milwaukee.

11 BY MR. DUSEK:

12 Q. Been back to New York city?

13 A. And I spent a week helping to identify victims of

14 the world trade center one week after it occurred. I spent

15 a week there.

16 Q. Let me direct your attention to last month,

17 February of the year 2002. Were you asked to perform your

18 services in trying to identify a young gal who may be

19 Danielle Van Dam?

20 A. Yes, sir, I was.

21 Q. When were you first notified, sir?

22 A. I think the day that the — this victim was

23 found, which was February 27th, I was in Marin county, and

24 I believe I was contacted — or contacted Captain

25 Ron Newman of the San Diego police department, and — who

26 advised me there would probably be a postmortem the next

27 day, the 28th of February.

28 Q. Where did you go to do your work?

Page 122

1 A. Medical examiner’s office here in the county.

2 Q. What was going on that day?

3 A. When I arrived, Dr. Blackbourne was in the midst

4 of the postmortem examination of this victim, and at that

5 point he allowed me to go ahead with my work, which is

6 taking X-rays of this victim’s oral cavity.

7 Q. Basically he stopped his work to allow you to do

8 yours?

9 A. Yes, sir, that’s correct.

10 Q. What did you do?

11 A. Took several X-rays of this victim, charted the

12 remains, meaning if there were any fillings, anything

13 present, missing teeth, things of this nature, and took

14 some photographs of the oral cavity, as well.

15 Q. Let me show you what’s been previously marked as

16 People’s exhibit 2, this autopsy photo of the body. Do you

17 recognize that?

18 A. Yes, sir, I do.

19 Q. How?

20 A. Well, there’s a tremendous amount of

21 decomposition in this victim and there’s also evidence of

22 animal activity, as far as some of the soft tissue is

23 concerned.

24 Q. Is that the body that you were working on?

25 A. Yes, sir. I believe it is, yes.

26 Q. Can you describe her — the condition of her

27 mouth, her dental work?

28 A. The inside of the mouth was pretty well

Page 123

1 decomposed. There was not much tonicity or tone to the

2 tissue, which is normal in decomposition. There was

3 I believe three teeth missing. One known as a baby canine,

4 and two permanent teeth, two permanent incisors. Two of

5 the front teeth were missing.

6 Q. The incisors are the front teeth?

7 A. Yes, sir.

8 Q. Canines are which?

9 A. The ones right behind, so-called eye teeth.

10 They’re the ones just behind the four incisors on either

11 side.

12 Q. Did you ever locate those teeth, the missing

13 teeth?

14 A. One I did locate. We had a lateral X-ray, and

15 there was one that I did not notice the very first time the

16 examination occurred, but there was a lateral plate taken,

17 that’s an X-ray, the side of the victim’s head, and I could

18 see in the back there was a tooth there which appeared to

19 be a human tooth. I recovered that, placed it back in the

20 mouth, and then took X-rays of that and photographs of that

21 tooth in place.

22 Q. When you say it was in the back, what do you mean

23 by that?

24 A. Well, actually what we call the vestibule, the

25 little opening of the space between where the gum connects

26 to the cheek, and that’s where I found that one tooth that

27 was missing. The other two, I have no idea what happened

28 to those.

Page 124

1 Q. Were you provided X-rays of a Danielle Van Dam?

2 A. Yes, sir, I was.

3 Q. Were they identified as such?

4 A. Yes, they were.

5 Q. From what dentist? Do you recall?

6 A. I believe the doctor’s name was Baker.

7 Q. Did you get a chance to compare what was shown on

8 the X-rays with what you observed and your X-rays

9 indicated?

10 A. Yes, sir, I did.

11 Q. What did you see?

12 A. Well, I saw teeth that were consistent with

13 the — a person who was around 7-years-of-age, and that’s

14 because at that point they’re beginning to lose their front

15 teeth, these incisors that we were talking about, and

16 they’re being replaced by permanent teeth.

17 There were a number of so-called deciduous or

18 baby molars, two in each of the four quadrants of the

19 mouth. They were all present. In fact, all the lower

20 teeth were present.

21 And I saw consistent features in the X-rays, the

22 so-called antemortem films, the ones I got from Dr. Baker,

23 with the films I had taken that day on February 28, ’02 at

24 the medical examiner’s office.

25 Q. Based upon your observations and comparison of

26 the young victim and the X-rays, did you form an opinion

27 regarding the identity of that person?

28 A. Yes, sir, I did, Mr. Dusek.

Page 125

1 Q. What was the opinion?

2 A. That they were without question are the same

3 individual. They were films of the same individual. Even

4 though the X-rays that I received were taken in —

5 I believe May 22nd of the previous year. And as I said, at

6 this point in time, people that age are beginning to lose

7 their baby teeth and they’re getting their permanent teeth

8 in, everything was consistent with what I would expect with

9 a 7-year-old. And the — certain teeth, such as the 6-year

10 molar, which were present in both antemortem, postmortem

11 records, were consistent with each other.

12 MR. DUSEK: Thank you, sir. Nothing further.

13 THE WITNESS: Yes, sir.

14 THE COURT: Counsel?

15 Let the record reflect Mr. Boyce is now going to

16 do the questioning.

17

18 CROSS-EXAMINATION

19 BY MR. BOYCE:

20 Q. Good afternoon. Did you review any reports

21 before examining the body?

22 A. No, sir.

23 Q. And the date that you examined the body was —

24 A. February 28th, about 1:00 P.M. in the afternoon.

25 Q. And this was — the autopsy was interrupted while

26 you examined the body; is that correct?

27 A. Yes, sir, that’s correct.

28 Q. During your examination of the teeth, did you see

Page 126

1 any signs of any fracturing?

2 A. No, sir.

3 Q. Did you see any signs of any trauma to the teeth?

4 A. No, sir.

5 Q. You said that there was a missing — anterior

6 teeth?

7 A. Two of those, yes, sir.

8 Q. Two teeth?

9 A. A permanent tooth. Two permanent incisors were

10 missing.

11 Q. And how — in your opinion, how did that occur?

12 A. With extensive decomposition as we have in this

13 particular victim, many things decompose, including what’s

14 known as the periodontal membrane.

15 The periodontal membrane is about the thickness

16 of a sheet of paper, and it is what anchors the tooth to

17 the bone. When decomposition occurs, it affects the

18 periodontal membrane, and in many cases, or a certain

19 number of cases, the anterior teeth, namely the incisors,

20 and sometimes the canine teeth, will become loose and just

21 come out as a result of — it can be shaking by animals at

22 the scene or just if there’s enough decomposition, merely

23 bringing the body back to the medical examiner’s office can

24 often dislodge these teeth.

25 Q. When you say there was decomposition, there is

26 severe decomposition, there’s moderate decomposition —

27 in other words, stages of decomposition; is that correct?

28 A. Yes, sir, that is correct.

Page 127

1 Q. And are you familiar with the time in which those

2 stages occur after death?

3 A. Well, it depends a lot on the temperature in the

4 area, it depends a lot on the atmospheric pressures,

5 whether the person is in — submerged in water, in a dry

6 area such as desert. So it can vary.

7 Q. And I believe you told us that you practice here

8 in San Diego; is that correct?

9 A. Yes, sir, I do.

10 Q. So you’re familiar with the temperature and

11 climate in San Diego during this time of year; is that

12 correct?

13 A. Yes, sir, I am.

14 Q. Is there anything that you can tell us about the

15 time of death from your examination of the mouth of the

16 victim?

17 A. I don’t think I could, sir.

18 Q. You can tell us that the death did not occur a

19 day before you examined the body, can’t you?

20 A. Oh, yes.

21 Q. Can you give us a range during which the time of

22 death occurred?

23 MR. DUSEK: Objection. No foundation.

24 THE COURT: Sustained.

25 BY MR. BOYCE:

26 Q. Based upon your training and experience, can you

27 give us an opinion as to a range during which the time of

28 death occurred?

Page 128

1 MR. DUSEK: No foundation, Your Honor.

2 THE COURT: Sustained. I didn’t say you couldn’t

3 lay a foundation. I just said it hasn’t been laid.

4 BY MR. BOYCE:

5 Q. Do you have training in the area — in

6 determining when the time of death occurred from an

7 examination of the mouth of the victim?

8 A. I don’t think so. Not specifically. I’ve been

9 doing this for a long time, counsel. So I generally expect

10 certain conditions, especially in this area, as you say,

11 where I’m familiar with the temperature, but I don’t think

12 I would be in any position or have the — or have had

13 training to pinpoint the questions you’re asking me.

14 Q. In your field is there literature upon which you

15 can — studies that show when time of death occurs?

16 A. I don’t think too much in the odontology

17 literature. There may be in the pathology literature. And

18 this type of determination generally can be arrived at

19 through the pathologist or sometimes forensic

20 anthropologists, but I just don’t think there’s any

21 training in that. I don’t think most forensic dentists

22 would have a — could pinpoint the time of death.

23 Q. You estimated the age was consistent with the

24 known X-rays that you were provided; is that correct?

25 A. Yes, sir.

26 Q. And the teeth to you appeared to be in a normal

27 condition for an individual that age; is that correct?

28 A. Yes, sir.

Page 129

1 Q. Did you examine anything but the teeth and oral

2 cavity during your — the autopsy?

3 A. No. My responsibility was the oral cavity.

4 Of course I did see the body in its entirety, but I didn’t

5 quote, as you say, study it, unquote.

6 Q. Now, I believe you prepared one report in this

7 case; is that correct?

8 A. Yes, sir.

9 Q. And that was a report that was dated

10 February 28th, consisting of two pages and a photocopy of

11 some X-rays; is that correct?

12 A. Yes, sir.

13 Q. Did you provide any other reports?

14 A. No, sir.

15 Q. Did you have — do you still have your notes

16 regarding your examination of the — during the autopsy?

17 A. Not notes because the notes were — anything I

18 had was placed on a replica of the sheet that you have and

19 then typed later on in a formal format by my secretary.

20 Q. Do you have an informal format?

21 A. I don’t believe so, no.

22 Q. Was there anything you could tell about the cause

23 of death from your examination of the teeth?

24 A. No, sir.

25 MR. DUSEK: No foundation.

26 THE COURT: Well, you happen to be correct. If

27 you want me to strike the answer —

28 MR. DUSEK: Please.

Page 130

1 THE COURT: Pardon me?

2 MR. DUSEK: Please.

3 THE COURT: The answer’s stricken.

4 BY MR. BOYCE:

5 Q. Based upon your training and experience, was

6 there anything you could tell about the cause of death from

7 the examination of the teeth of this individual?

8 MR. DUSEK: Objection. No foundation.

9 THE COURT: Sustained.

10 BY MR. BOYCE:

11 Q. In your report you reached the conclusion that

12 there were no signs of trauma; is that correct?

13 A. That is correct, yes, sir.

14 MR. BOYCE: I don’t have anything further.

15 THE COURT: Thank you.

16 Counsel?

17

18 REDIRECT EXAMINATION

19 BY MR. DUSEK:

20 Q. Did you get a chance to examine the root system

21 on the teeth, either in the X-rays or during the exam?

22 A. The X-rays and the two teeth that were loose and

23 I placed back in. So I didn’t examine them, but they

24 appeared to be normal and free of trauma.

25 Q. How much pressure on teeth would it take to have

26 them pop free, teeth the size and age that you saw?

27 A. With —

28 MR. FELDMAN: Objection. Speculation,

Page 131

1 foundation.

2 THE COURT: Well, overruled.

3 THE WITNESS: With decomposition, Mr. Dusek, or

4 without decomposition?

5 BY MR. DUSEK:

6 Q. Let’s say they were removed before the

7 decomposition. The pressure while the body was still

8 alive.

9 A. I don’t know if I could tell you. I’ve extracted

10 teeth — I don’t know — I can’t tell you the amount of

11 pressure that would be there.

12 One thing I did notice that the crown-root ratio,

13 in other words, the root being defined as that part of the

14 tooth above the gum, and root being defined as the part

15 below the gum that supports the tooth in the bone, the

16 crowns, at least of the front tooth that still remained,

17 was very long in relationship to the lower — to the root.

18 Which means that that tooth would be — was under — any

19 kind of pressure would lever that — lever out that tooth

20 very readily. In other words, if the root were twice as

21 wide or twice as long and wide, maybe that tooth wouldn’t

22 have come out under decomposition conditions. But I can’t

23 say that the amount of pressure or poundage that would

24 require that.

25 Q. And that’s what I’m looking at now. Assuming the

26 tooth had been forced out with pressure while she was still

27 alive and then you saw the body as you did in that

28 condition when you did your exam, was her mouth in good

Page 132

1 enough condition to determine whether or not the tooth had

2 been removed by pressure or just falling out from

3 decomposition?

4 A. I don’t think I could answer that question,

5 Mr. Dusek.

6 Q. Why not?

7 A. Because, again, I don’t think I’ve had any

8 background or I don’t think there’s any written records on

9 this or research, and I think it would be very hard for me

10 to tell, if I understand your question, whether the tooth

11 came out immediately after or sometime after death or prior

12 to death. I don’t think I could answer that question.

13 MR. DUSEK: Thank you, sir.

14 THE COURT: Anything further, Mr. Boyce?

15 MR. BOYCE: No, Your Honor.

16 THE COURT: Thank you, doctor. You’re excused.

17 Do we need to have him subject to recall?

18 MR. FELDMAN: No thank you.

19 THE COURT: All right. You’re not subject to

20 recall.

21 THE WITNESS: Thank you, Your Honor.

22 THE COURT: The admonition about not viewing

23 media reports is rescinded as it relates to you.

24 Now we have other witnesses?

25 MR. DUSEK: Christina Hoeffs.

26 THE COURT: Okay. And you’ve advised her of my

27 general admonishments? You don’t remember —

28 MR. DUSEK: I gave her the gag order, and I will

Page 133

1 tell her not to watch herself on TV.

2 THE COURT: All right. Or read about us.

3 Please come in. Raise your right hand.

4

5 Christina Hoeffs,

6 Called as a witness by and on behalf of the People,

7 having been first duly sworn, testified as follows:

8

9 THE COURT: Please take the stand.

10 Would you tell us your name, please.

11 THE WITNESS: My name is Christina Hoeffs.

12 THE COURT: How do you spell Christina and

13 Hoeffs?

14 THE WITNESS: Christina is C-H-R-I-S-T-I-N-A.

15 Hoeffs is spelled H-O-E-F-F-S.

16 THE COURT: I’m going to ask one of the bailiffs

17 to assist with the microphone because I have difficulty

18 hearing here, and I’m not that far away. Want to take a

19 look at the volume? Whatever you need to do, please. Just

20 take a minute.

21 THE WITNESS: Hello. Is that better?

22 THE COURT: I guess so.

23 THE BAILIFF: Speak up a little.

24 THE COURT: Speak up a little, okay?

25 THE WITNESS: Sure.

26 THE COURT: Thank you very much.

27 THE WITNESS: All right.

28 THE COURT: Go ahead, counsel.

Page 134

1 DIRECT EXAMINATION

2 BY MR. DUSEK:

3 Q. Is it Mrs. Hoeffs?

4 A. Yes, sir.

5 Q. Mrs. Hoeffs, are you familiar with an individual

6 now known as David Westerfield?

7 A. Yes, sir.

8 Q. How do you know him or know of him?

9 A. My neighbor. He lives directly behind me.

10 Q. Do you see him in court today?

11 A. Yes, I do.

12 Q. Would you point him out, please, and describe

13 what he’s wearing today?

14 A. Yes. A white button-up shirt, right in the 15 corner here.

16 THE COURT: She’s identified Mr. Westerfield.

17 MR. DUSEK: Thank you.

18 Q. Where is your house in relation to his house?

19 A. I live directly behind him.

20 Q. And can you describe for us the elevation of your

21 house and his house?

22 A. My house sits above his house.

23 Q. Are you able to see any part of his house from

24 any part of your house?

25 A. Yes. I can see into the back of his house from

26 my upstairs.

27 Q. Do you know if you folks have similar or

28 identical floor plans?

Page 135

1 A. I believe we have the same floor plan.

2 Q. When you’re looking from the rear of your house

3 upstairs into his house, what room are you standing in?

4 A. My bedroom.

5 Q. And when you’re looking to the rear portion of

6 his house, what part are you looking at? What part of his

7 house would you be looking into past the doors?

8 A. Well, I can see the entire rear of his house.

9 Q. And what rooms are at the rear of his house?

10 MR. BOYCE: Objection. Speculation, unless she’s

11 familiar with the house.

12 THE WITNESS: Yeah. Because —

13 THE COURT: Hold on. I have to get the objection

14 and then I have to rule, okay?

15 Your objection is speculation. Overruled.

16 So I assume, Mr. Boyce, you’re going to handle

17 this witness, correct?

18 MR. BOYCE: Correct, Your Honor.

19 THE COURT: Okay. Go ahead.

20 BY MR. DUSEK:

21 Q. Are your two floor plans the same?

22 A. I believe so.

23 MR. BOYCE: I object. Lack of foundation. She

24 doesn’t know. Move to strike.

25 THE COURT: Overruled.

26 BY MR. DUSEK:

27 Q. On occasion have you been able to look into his

28 house?

Page 136

1 A. Yes.

2 Q. From yours?

3 A. Yes.

4 Q. How?

5 A. Simply by looking out my window.

6 Q. And what are you able to see through into his

7 house? Windows, doors, see through the walls?

8 A. I can see all the rear windows and his rear door.

9 Q. His bedroom area would be on which level?

10 MR. BOYCE: Objection. Lack of foundation.

11 THE COURT: Overruled.

12 THE WITNESS: If I look out my bedroom window, I

13 see into a bedroom window directly across, and I believe

14 that to be his bedroom —

15 MR. FELDMAN: Objection. Lack of foundation.

16 Move to strike.

17 THE COURT: Counsel, I don’t have any problem

18 with her telling us what she sees.

19 MR. BOYCE: But she believes it to be —

20 THE COURT: Counsel, one at a time. I get to go,

21 okay?

22 But if she’s going to say that this is his

23 bedroom or somebody else’s bedroom, I need more foundation.

24 So I’m going to strike the answer about his bedroom.

25 Go ahead, counsel.

26 BY MR. DUSEK:

27 Q. We’re not concerned about is it a bedroom. Is it

28 on the ground floor or the second floor?

Page 137

1 A. The ground floor, that I have seen in, is a

2 living area, and the upstairs is some type of a bedroom and

3 a bathroom window.

4 Q. On the evening of February 1st, going over to

5 February 2nd of the year 2002, were you at home?

6 A. Yes.

7 Q. Were you in your bedroom area?

8 A. Yes.

9 Q. About what time did you go to bed that night?

10 A. About 10:00.

11 Q. What were you doing before you went to bed?

12 A. I was laying there watching TV. I went to bed

13 about 10:00 and turned the television on.

14 Q. Do you remember what you were watching?

15 A. The Super Bowl party preview concert thing.

16 Q. And as you were in your room, were you aware of

17 anything out of the ordinary from Mr. Westerfield’s

18 residence?

19 A. I did notice that when I turned my television off

20 and was going to go to sleep, that his light was on, the

21 rear light, which would be his back light.

22 Q. This would be an outside light?

23 A. An outside back light.

24 Q. What was unusual about that?

25 A. Well, it was shining into my blind and it just

26 seemed like — I don’t know why it was on. I didn’t — it

27 was just unusual because he doesn’t keep it on ever or a

28 lot or anything.

Page 138

1 Q. Did you do anything to try to block out the light

2 at that point?

3 A. No. Not at that time.

4 Q. How about your blind or curtains, were

5 they — what was their condition?

6 A. I keep them — I have blinds, and I keep them

7 partially just cracked.

8 Q. Some of that light was coming into your room?

9 A. Yes.

10 Q. Did you get up later that evening?

11 A. Yes, I did.

12 Q. About what time?

13 A. Between 2:00 and 2:30.

14 Q. Why?

15 A. My infant son was crying.

16 Q. So what did you do?

17 A. I went in and comforted him and got him back to

18 sleep, which took a few minutes, and came back to bed, got

19 into bed, and I had to get up again because the light was

20 still shining into my room.

21 Q. Did you do anything with regard to checking that

22 out?

23 A. Yeah. I got up and I looked out, just looked

24 out, and — to see why the light would have been on, see if

25 he was in the back or anything or whatever. So I looked

26 out, and the light was still on, and I did notice at that

27 time the house was completely closed up. Every single

28 blind was completely shut tight.

Page 139

1 Q. Is that unusual?

2 A. I thought — at the time I thought well — well,

3 I thought he must have left the light on and left town.

4 Q. I’m concerned about the — being shut up tight.

5 A. Yeah. And it was shut tight. I did make a note

6 of that mentally because he doesn’t usually shut his house

7 up real tight like that. Every single blind was drawn

8 completely shut.

9 Q. When you say every single blind, which parts of

10 the house are we looking at?

11 A. The downstairs windows, the upstairs window for

12 the bathroom, as well as the bedroom, and the door, his

13 back door has a blind on it, and that was shut tight,

14 as well.

15 Q. Have you ever seen that shut tight before?

16 A. No.

17 Q. That seem unusual?

18 A. It did to me at the time, yes.

19 Q. Why?

20 A. Again, because I’ve never seen the blinds shut

21 completely tight on every single window in his home.

22 Q. Do you know whether or not he has any

23 recreational vehicles?

24 A. Yes.

25 Q. How do you know?

26 A. I’ve seen them parked outside of his home.

27 Q. Have you seen him working or his custom and habit

28 with regard to using those vehicles?

Page 140

1 A. I’ve seen him loading and unloading his motorhome

2 for different occasions.

3 Q. Where does he park or place the motorhome when he

4 starts to use it?

5 A. He parks it on Briar Leaf, on the corner of his

6 house.

7 Q. Does Mr. Westerfield live on a corner house?

8 A. Yes.

9 Q. Front of his house is on what street?

10 A. Mountain Pass.

11 Q. And the side street would be?

12 A. Is Briar Leaf.

13 Q. How — to get to your house do you have to go by

14 Mr. Westerfield’s house?

15 A. Yes.

16 Q. And describe for us what you observed as his

17 custom and habit for operating that motorhome, what he does

18 to get it ready.

19 A. I’ve just seen in the past he’ll park it over on

20 the side for a couple of days prior to any kind of a trip

21 or — and kind of load, unload, that type of thing, garage

22 open, gear out in the garage, that type of thing, and

23 getting it ready. He also has a buggy trailer, an enclosed

24 buggy trailer I’ve seen parked across the street from his

25 house.

26 Q. How long does it appear for him to get ready to

27 take a trip in a motorhome?

28 A. Again, I’ve seen it there anywhere from that day

Page 141

1 to a couple of days prior.

2 Q. And at the end of a trip or using the vehicles,

3 have you seen what he does with it?

4 A. It’s parked there again, typically, and I just

5 have seen the same kind of activity, kind of an unloading

6 kind of a thing, I assume.

7 Q. Regarding your observations, did you report this

8 to the police department?

9 A. I did.

10 Q. Was your house — when did you become aware that

11 Danielle Van Dam was missing?

12 A. Approximately 11:00 A.M. on that Saturday

13 morning. The helicopter was overhead indicating there was

14 a child missing.

15 Q. Were you and your husband contacted regarding a

16 search?

17 A. Yes.

18 Q. Did they examine your house, is what I’m after.

19 A. Did they examine our house?

20 Q. Yes.

21 A. Yes.

22 Q. How?

23 A. They asked us questions. We had a canine come in

24 and search our home.

25 Q. When was it you advised the police of what you’ve

26 just told us here?

27 A. I don’t remember at what point we had answered

28 several questions.

Page 142

1 MR. DUSEK: Thank you, ma’am.

2 THE COURT: Counsel?

3 MR. BOYCE: Thank you, Your Honor.

4

5 CROSS-EXAMINATION

6 BY MR. BOYCE:

7 Q. This Friday that you noticed the lights to your

8 neighbor’s patio on and the blinds closed, for all other

9 purposes was that a normal Friday night to you?

10 A. Yes.

11 Q. Just like any other night?

12 A. Yes.

13 Q. Do you work, ma’am?

14 A. Yes.

15 Q. And what do you do?

16 A. I’m a dispatcher.

17 Q. For who?

18 A. California highway patrol.

19 Q. The same place that your husband works?

20 A. Yes.

21 Q. And when do you work?

22 A. Well, he works for that department. We don’t

23 work in the same capacity.

24 Q. When do you work?

25 A. I work —

26 MR. DUSEK: Objection. Irrelevant.

27 MR. BOYCE: It goes to when she —

28 THE COURT: Hold on. I’m going to allow this

Page 143

1 limited inquiry as to when she works, and more

2 specifically, when did she work on that Friday.

3 MR. BOYCE: I understand, Your Honor.

4 THE COURT: I’m going to overrule the objection

5 with conditions.

6 BY MR. BOYCE:

7 Q. Did you work that Friday?

8 A. I did not.

9 Q. What days do you have — during this period of

10 time, what days were you off?

11 A. Without referring to my schedule — I work part

12 time. I believe I would have worked a Tuesday, Wednesday,

13 that week, perhaps Wednesday, Thursday.

14 Q. You don’t recall what your schedule was that

15 week?

16 A. I don’t recall what my schedule was. I know I

17 did not work a Friday nor a Saturday nor a Sunday.

18 Q. What about the following Monday?

19 A. I don’t believe it was the following

20 Monday — no. I know for a fact I wasn’t working Monday.

21 Q. You also said that you noticed Mr. Westerfield’s

22 motorhome parked by his house; is that correct?

23 A. That is not correct.

24 Q. You see his motorhome out there? Isn’t that what

25 you told us?

26 A. Okay. I do. I did not see it that night.

27 Q. No. I’m not asking about that night, but you

28 have seen it there; is that correct?

Page 144

1 A. Specifically, yes, I have.

2 Q. And you’ve seen it loading and unloading the

3 motorhome; is that correct?

4 A. Yes, sir.

5 Q. And you say that sometimes the motorhome is there

6 the day that he leaves and other times it may be there two

7 or more days before he leaves and after he returns; is that

8 correct?
9 A. That is correct.

10 Q. Okay. I want to talk about not the days — not

11 the times that you’ve seen it when it’s there that same

12 day. I want to talk about when you’ve seen that motorhome

13 there for a couple of days prior to Mr. Westerfield leaving

14 on a trip.

15 Before he leaves, you say he would load and

16 unload his motorhome; is that correct?

17 A. I have seen that, correct.

18 Q. And you’ve seen him coming in and going out of

19 the motorhome; is that right?

20 A. Yes.

21 Q. While he’s loading it?

22 A. You know, I’ve never actually seen him step foot

23 in the motorhome or step foot out of the motorhome. I have

24 seen him in the driveway getting, again, ice chests and

25 different gear and that kind of thing.

26 Q. So you would see items that looked like they were

27 appropriate camping items or other items that would be in a

28 motorhome laying out in the driveway; is that correct?

Page 145

1 A. Correct.

2 Q. And you wouldn’t see anybody around; is that

3 correct, any person?

4 A. You mean the items alone just in the driveway?

5 Q. Yes.

6 A. No. I would see him outside.

7 Q. But there were — on other occasions would you

8 see no one there, but you’d see the items in the driveway;

9 is that correct?

10 A. That is not correct.

11 Q. You’d see him around all the time?

12 A. Yes.

13 Q. Did you see him moving things into the motorhome?

14 A. Again, I never saw him step foot inside of his

15 motorhome nor come out of it. I’ve seen him standing next

16 to it, around it. I can’t say I’ve ever saw him take a

17 step into the motorhome or out of it.

18 Q. You wouldn’t be there watching him the entire

19 time that the motorhome was there say for this two day

20 period before he left on his trip, though, would you?

21 A. No.

22 Q. You would just occasionally see the motorhome,

23 various items, and perhaps Mr. Westerfield?

24 A. Yes.

25 Q. And would you see the motorhome door open or

26 closed during this period of time?

27 A. Both.

28 Q. Both open and closed?

Page 146

1 A. Yes.

2 Q. But you wouldn’t see Mr. Westerfield going in and

3 out; is that correct?

4 A. Again, I cannot say that I’ve ever seen him step

5 foot into the motorhome or step foot out of. I couldn’t

6 positively say that I had seen that. I may have. I can’t

7 positively say I have.

8 Q. And after the motorhome — and then after you

9 would see the motorhome there, then it would go away

10 apparently with Mr. Westerfield for a period of time; is

11 that right?

12 A. I believe so.

13 Q. You don’t know where Mr. Westerfield went, do

14 you?

15 A. No.

16 Q. You assume maybe he went camping or to the desert

17 or someplace?

18 A. I typically would assume the desert, because he

19 would have, again, a buggy — an enclosed trailer, and that

20 was open, the doors were open most of the time, and you

21 could see in it, three-wheelers, ATV’s, those types of

22 things.

23 Q. And then the motorhome would re-appear outside

24 the residence; is that right?

25 A. Yes.

26 Q. And you would — would you see things being moved

27 in and out of the motorhome at that time?

28 A. On occasions, yes.

Page 147

1 Q. You would see the motorhome being cleaned; is

2 that right?

3 A. I don’t know about cleaned. Never washed or

4 hosed down or anything. I didn’t ever observe that.

5 Q. Did you know that Mr. Westerfield’s children also

6 lived with him at different points during this period of

7 time?

8 A. I assume Mr. Westerfield’s son lived with him

9 because I saw his car parked there frequently and saw him

10 coming in and out of the residence.

11 Q. Did you see Mr. Westerfield’s son going in and

12 out of the motorhome at all?

13 A. Again, same answer. I can not put him directly

14 walking into or coming out of that motorhome. I have seen

15 him out in the front with his father.

16 Q. And, again, you wouldn’t be watching the

17 motorhome this entire two-day period while the motorhome

18 was parked outside his house or his home there, would you?

19 A. No. I would not observe it for 48 hours.

20 Q. Now, this Friday night when you noticed the patio

21 lights on and the blinds pulled, you noted that because it

22 was unusual; is that right?

23 A. Yes.

24 Q. It was something different, something suspicious

25 to you; is that right? It was unusual?

26 A. It was unusual.

27 Q. And your husband is a sergeant with the

28 highway patrol; is that correct?

Page 148

1 A. Correct.

2 Q. He worked that Friday night, didn’t he?

3 A. He did.

4 Q. And he returned home approximately about 11:00;

5 is that right?

6 A. I was asleep at that point. You’d probably have

7 to ask him exact times.

8 Q. You were asleep when he came home that night?

9 A. I believe I was probably already asleep.

10 Q. You first noticed these lights on and these

11 blinds closed approximately 10:00 that night?

12 A. A little —

13 MR. DUSEK: Objection. Misstates the evidence.

14 THE COURT: Sustained.

15 BY MR. BOYCE:

16 Q. When did you first notice the blinds closed that

17 night?

18 A. When did I first notice that his house was all

19 shut down?

20 Q. Yes.

21 A. Again, when I got my infant son squared away, and

22 that was between 2:00 and 2:30.

23 Q. You didn’t notice whether the patio lights were

24 on before then; is that correct?

25 A. No. I did notice the patio light was on when I

26 went to bed.

27 Q. And what time did you go to bed?

28 A. Again, I laid down approximately 10:00, turned on

Page 149

1 the television, and turned the television off maybe between

2 10:30 and 11:00.

3 Q. And so at 10:00 —

4 A. At that time I noted that it was bright in my

5 room.

6 Q. At 10:00 you noticed that the patio lights were

7 on?

8 A. I would say it’s when I shut the TV off, maybe

9 10:30-ish.

10 Q. Did you notice the blinds were closed at that

11 time?

12 A. I did not.

13 THE COURT: Does that mean you didn’t look or you

14 didn’t notice?

15 THE WITNESS: I did not look at that time. I did

16 not get out of my bed and look out the window.

17 BY MR. BOYCE:

18 Q. Then when your — the next day did you tell your

19 husband that the patio light had been bothering you and

20 your son?

21 A. I don’t recall if we had that conversation.

22 Q. You told us that you told the police that

23 Mr. Westerfield’s blinds were closed and the patio lights

24 were on and that was unusual; is that correct?

25 A. Yes.

26 Q. When did you first tell the police this

27 information?

28 A. Again, it would have been a couple of days after

Page 150

1 the disappearance of Danielle. We had been questioned

2 several times by different police. And I believe that I

3 actually went down to the command post, it would have been

4 that following week, and told one of the detectives I

5 thought that was suspicious.

6 Q. When you say the following week, that would have

7 been after Mr. Westerfield was arrested; is that correct?

8 A. That’s correct.

9 Q. And did you or your husband go to the

10 command post?

11 A. I did.

12 Q. To your knowledge, did your husband report this

13 information to the police at any time?

14 A. I believe he did. We had a detective call us on

15 the telephone, and I believe he did tell him that, because

16 we were both home when the conversation was occurring.

17 Q. Was this before or after you went — this would

18 have been then after the — you went down to the

19 command post; is that correct?

20 A. Yes. When I went to the command post, they told

21 me — I told them I don’t know if this is anything, but

22 this was an unusual circumstance. And they just took my

23 name and telephone number and left it at that. And then,

24 again, somebody called later and followed up on that.

25 Q. It was unusual enough for you to go down to the

26 command post; is that right?

27 A. Yeah.

28 Q. And you are a dispatcher for the California

Page 151

1 highway patrol; is that correct?

2 A. Yes, sir.

3 Q. So you’re familiar with people giving information

4 about crimes; is that correct?

5 A. Yes.

6 Q. And you’re also aware that it’s very important

7 that you get that information to the proper authorities as

8 soon as possible; is that right?

9 A. Yes.

10 Q. And you’re aware that it’s important to get that

11 information to the proper authorities because it may affect

12 the way an investigation is going or to focus an

13 investigation appropriately; is that right?

14 A. Yes.

15 Q. Is that fair to say?

16 A. Yes. That is why I walked down to the

17 command post and asked for the detective who was handling

18 the case, as opposed to calling in the tip line.

19 Q. You also say you were home on Friday, on the

20 Friday that Danielle, your neighbor, was first found to be

21 missing; is that correct?

22 MR. DUSEK: Objection. Misstates the evidence.

23 MR. BOYCE: I’m sorry.

24 THE COURT: Sustained.

25 BY MR. BOYCE:

26 Q. Were you home that Friday?

27 A. At what time?

28 Q. What time did you — what time were you home on

Page 152

1 Friday when Danielle was first noticed missing?

2 A. I was home all day with the — I left about 4:00

3 in the afternoon, and returned to my house at 9:00 P.M.

4 Q. When did you first notice — when were you first

5 aware that she was missing?

6 A. The following morning, which was a Saturday,

7 there was a police helicopter overhead approximately 11:00

8 A.M. indicating there was a child missing.

9 Q. So the following Saturday you were aware that

10 Danielle was missing, and this was the girl in your

11 neighborhood; is that right?

12 A. Yes, sir.

13 Q. And you said that there was a search being

14 conducted in your neighborhood that you were aware of for

15 this girl, right?

16 A. There was.

17 Q. And that a police officer came to your house that

18 Saturday conducting part of that search; is that correct?

19 A. That Saturday I believe two detectives or police

20 types knocked on our door after the whole neighborhood was

21 basically — I know they had put it out as a crime scene.

22 They taped off her street. And that evening I remember we

23 had a community meeting set to go at about 6:00 to see what

24 the neighbors could do to assist in the search, and they

25 had knocked on the door about 5:00 something, I believe,

26 but my husband spoke to them. I never spoke to them. I

27 was feeding the children.

28 Q. You were present when the police were there,

Page 153

1 though?

2 A. I was in the home. I did not speak with them.

3 He told me they came to the door. Again, I was in our

4 kitchen feeding our children.

5 Q. Did you see the police at the door?

6 A. They were not in uniform. They were wearing

7 jackets or some type of thing. And he told me after he

8 shut the door who they were. I think I kind of peeked

9 around the corner to see who it was, and after the door was

10 shut, he told me.

11 Q. When you looked around the corner to see who it

12 was, did you believe that they were people that were

13 connected with the search for the young girl?

14 A. I had no idea who they were. There were several

15 people in the neighborhood at that point that I wasn’t

16 familiar with.

17 Q. That was the first time that anybody came to your

18 house regarding the disappearance of the young girl; is

19 that correct?

20 A. I believe so.

21 Q. They also searched your home with a dog; is that

22 correct?

23 A. Yes.

24 Q. Were you present when the dog — when they

25 conducted the dog search?

26 A. No.

27 Q. When — do you know when the dog search occurred?

28 A. I do. It was a Monday.

Page 154

1 THE COURT: The following Monday?

2 THE WITNESS: The following Monday. They were

3 searching everybody’s house.

4 BY MR. BOYCE:

5 Q. Was your husband home then?

6 A. Yes, sir. I was in the neighborhood. I was

7 actually down at the memorial site signing a book.

8 Q. Then was there another time when police officers

9 came to your search — not search your house, but seeking

10 information regarding the little girl, between when you

11 learned of the disappearance of the girl and, say, the

12 following Monday?

13 A. Between Saturday and the Monday of the

14 canine search?

15 Q. Yes.

16 A. I believe those two instances were the only times

17 the police were at the home.

18 Q. Were you there at any time when the police came

19 to look for any information concerning the little girl?

20 A. In the weeks to follow or specifically from that

21 Saturday to Monday?

22 Q. That Saturday to Monday.

23 A. Again, the first time I was in the home I was

24 feeding my children in the kitchen. And the second time

25 when the canines were present, I was not inside my home. I

26 was outside. And I did see the canines going from house to

27 house.

28 Q. Were you home on — you were home that Monday; is

Page 155

1 that correct?

2 A. Yes, sir.

3 Q. You were home all day; is that correct?

4 A. You know, I can’t remember if I had stepped out

5 to the grocery store or an errand, but I did not work that

6 day. I know I was home for the better part of that day if

7 I wasn’t home all day.

8 Q. Were you there when the police contacted

9 Mr. Westerfield in his driveway?

10 MR. DUSEK: Objection. Vague as to which time.

11 THE COURT: Sustained.

12 BY MR. BOYCE:

13 Q. On February 4th, on that Monday.

14 A. Was I at home?

15 Q. Yes.

16 A. I don’t know when they contacted Mr. Westerfield.

17 Q. On that Monday did you see the media and/or the

18 police around Mr. Westerfield’s driveway?

19 A. I did not make a special note of that.

20 Specifically on that Monday, again when I went to the table

21 where the memorial — or at that point it was just kind of

22 the book to sign, to put your thoughts down, I had walked

23 down to see what it was for the first time, and I did

24 notice Mr. Westerfield’s son arriving. He had a backpack

25 with him and he was standing on the porch watching all of

26 the activity. I didn’t notice if there were

27 police officers over there.

28 Q. And it wasn’t until the next week, that week

Page 156

1 following the Monday that Mr. Westerfield was arrested,

2 that you went to the police and gave them this information

3 about the unusual nature of the back of Mr. Westerfield’s

4 house, seeing the blinds closed and the spotlight on or the

5 patio light on; is that correct?

6 MR. DUSEK: Objection. Misstates the evidence.

7 THE COURT: Sustained.

8 BY MR. BOYCE:

9 Q. The first time that you went, that you reported

10 the patio light on and the blinds closed on

11 Mr. Westerfield’s house was after this Monday?

12 A. Yes.

13 Q. February 4th; is that correct?

14 A. Yes.

15 Q. The first time that you reported to the

16 police — reported the closing the blinds, this unusual

17 activity, was after Mr. Westerfield had been arrested,

18 correct?

19 A. That is not correct.

20 Q. When was the first time?

21 A. Again, I’ll say within that week, the first week.

22 I know at that point they had already impounded his

23 vehicles and been in his home collecting evidence.

24 Q. This was after —

25 A. So —

26 Q. This was after Mr. Westerfield had been in the

27 newspaper; is that correct?

28 A. I don’t know. I didn’t read the paper. But I

Page 157

1 had saw on television — I had worked that morning that he

2 had had his vehicles impounded and that they were looking

3 closer at him, that they had been in his home.

4 Q. So when you went down to the table and reported

5 this unusual information, it was after you had seen

6 Mr. Westerfield on television; is that correct?

7 A. That is correct.

8 Q. It was after Mr. Westerfield’s picture had been

9 posted throughout the media; is that right, including

10 television?

11 A. It was that week, yes.

12 Q. It was after you saw Mr. Westerfield on

13 television; is that correct?

14 A. Yes. I had seen him on television.

15 Actually — yeah. I guess they had showed his picture on

16 TV. I had seen more of the vehicles being impounded. They

17 showed the motorhome in some kind of impound yard. I had

18 seen that coverage. And I’m not sure if they had him on

19 the television. And I had seen the police talking about

20 how he was not a suspect and they were just looking at him

21 further.

22 Q. Did you talk to your husband about the fact that

23 you saw Mr. Westerfield’s blinds closed and the patio light

24 had been on?

25 MR. DUSEK: Objection. Irrelevant.

26 THE COURT: Sustained.

27 MR. BOYCE: Could I have just a moment,

28 Your Honor?

Page 158

1 THE COURT: Yes.

2 MR. FELDMAN: I believe this Mike’s off.

3

4 (Discussion off record.)

5

6 BY MR. BOYCE:

7 Q. On Saturday did you notice whether

8 Mr. Westerfield’s blinds were closed or not?

9 A. Yes.

10 Q. Were they closed?

11 A. Yes.

12 Q. The Saturday after the Friday that you first

13 noticed them being closed, they were closed; is that

14 correct?

15 A. Yes.

16 Q. And on Sunday, were they closed that day, the

17 Sunday after the Saturday and Friday?

18 A. I can’t answer for Sunday.

19 Q. You don’t know? You don’t recall whether they

20 were open or shut?

21 A. At that point there was a lot going on, and I

22 don’t recall. I didn’t look over there to see if they were

23 still closed. On Saturday I remember they were because I

24 looked over the fence to check his pool when I heard there

25 was a missing child.

26 Q. What about Monday, February 4th? Were his blinds

27 opened or closed that day?

28 A. Again, I can’t recall about that day either.

Page 159

1 Q. What about the rest of that week? Do you recall

2 whether or not his blinds were closed any of those dates?

3 A. Well, I know, again, once he had been contacted

4 by the police and they were in his home collecting evidence

5 and whatnot, that his blinds were a little bit cracked

6 open, because I remember actually looking out and seeing

7 those folks in there.

8 Q. And which day was that?

9 A. It was one of the days that the evidence persons

10 were there later in the evening. I remember it was kind of

11 dark.

12 Q. And you remember the blinds being cracked that

13 day; is that correct?

14 A. Yeah. The blinds were cracked open.

15 Q. Now, before that Friday, do you remember a

16 barbecue on the back patio of Mr. Westerfield’s house?

17 A. I didn’t notice a barbecue. I noticed his chair.

18 He has a swinging chair, and also an umbrella, a table,

19 umbrella and chairs.

20 Q. Did you —

21 A. I don’t know where he keeps his barbecue.

22 Q. What I was referring to — do you recall a

23 barbecue, a party, a barbecue, people out there barbecuing?

24 A. Like a party, a barbecue?

25 Q. Yes. The week before that Friday.

26 A. I can’t say.

27 Q. You don’t recall?

28 A. I don’t recall if there was or was not.

Page 160

1 Q. When you were working as a dispatcher, were

2 you — do you generally work nights or days during that

3 period of time?

4 MR. DUSEK: Objection. Irrelevant.

5 THE COURT: Sustained.

6

7 (Discussion off record.)

8

9 BY MR. BOYCE:

10 Q. I believe you told us that you recall the police

11 searching Mr. Westerfield’s residence?

12 A. I don’t know if they were police. I thought they

13 were just evidence technicians.

14 Q. You saw them inside the house; is that correct?

15 A. At one point I did.

16 Q. Did you see them conduct a dog search of the

17 house the same way they conducted a dog search of your

18 house?

19 MR. DUSEK: Objection. Irrelevant. Beyond the

20 scope.

21 THE COURT: Sustained on both grounds.

22 MR. BOYCE: I don’t have anything further,

23 Your Honor.

24 THE COURT: Do you have anything further,

25 counsel?

26 MR. DUSEK: I’m sorry, but —

27 THE COURT: Don’t be sorry for me. It’s Your

28 hearing, not mine. Go ahead.

Page 161

1 REDIRECT EXAMINATION

2 BY MR. DUSEK:

3 Q. You told us, ma’am, that you left your house on

4 Friday, February 1st, sometime in the afternoon?

5 A. Around 4:00.

6 Q. Did you have to go by Mr. Westerfield’s

7 residence?

8 A. Yes.

9 Q. Did you see his motorhome there?

10 A. No.

11 Q. Did you see anybody preparing to pack up a

12 motorhome?

13 A. I didn’t see anything outside or anything.

14 Q. What time did you come home?

15 A. About 9:00.

16 Q. In the evening?

17 A. Yes.

18 Q. Did you see his motorhome there?

19 A. No.

20 Q. Did you see anybody that looked like they were

21 gathering up to go on a trip?

22 A. No.

23 MR. DUSEK: Thank you. Nothing further.

24 THE COURT: Anything further?

25 MR. BOYCE: No, Your Honor.

26 THE COURT: Thank you. May we release this

27 witness.

28 MR. DUSEK: Yes.

Page 162

1 MR. BOYCE: Subject to recall.

2 THE COURT: Subject to recall of this witness?

3 MR. BOYCE: Yes.

4 THE COURT: All right. I don’t know whether

5 you’ve been admonished or not, but at this point you know

6 you’re not supposed to discuss your testimony with anyone.

7 I made a further ruling that until you’re released from

8 this hearing, you’re not to view any media reports of this

9 event. Media being TV, press, radio. Okay?

10 THE WITNESS: (Nods head.)

11 THE COURT: Okay? Thank you very much.

12 We’ll take our only afternoon break. We’ll come

13 back at 10 minutes after 3:00. We’ll go until 4:30. Do

14 you want to talk about scheduling at side bar?

15 MR. FELDMAN: Yes.

16 THE COURT: Why don’t you talk with counsel.

17 We’re off the record.

18

19 (Recess.)

20

21 THE COURT: Okay. Please call your next

22 witness.

23 MR. DUSEK: Detective John Keene.

24 THE COURT: Okay. Raise your right hand.

25

26 Johnny Keene,

27 Called as a witness by and on behalf of the People,

28 having been first duly sworn, testified as follows:

Page 163

1 THE COURT: Please take the stand, sir.

2 Please tell us your name.

3 THE WITNESS: Johnny Keene K-E-E-N-E.

4 THE COURT: Thank you. Go ahead.

5

6 DIRECT EXAMINATION

7 BY MR. DUSEK:

8 Q. How are you employed, sir?

9 A. I’m employed by the City of San Diego as a

10 detective.

11 Q. How long have you been with the

12 police department?

13 A. July will make 16 years.

14 Q. How long have you been a detective?

15 A. Approximately six years.

16 Q. What’s your current assignment?

17 A. Currently assigned to the robbery unit of the

18 San Diego Police Department.

19 Q. Is that downtown?

20 A. Yes, it is.

21 Q. I’d like to direct your attention back to

22 February 3rd of the year 2002. Did you become involved in

23 the Danielle Van Dam case?

24 A. Yes, I did.

25 Q. What was your first involvement?

26 A. My pager went off at 5:59 A.M. Sunday morning,

27 the 3rd, and I arrived at the command post approximately

28 45 minutes to an hour later.

Page 164

1 Q. We’ve heard about the command post. Where was

2 it?

3 A. It was parked in the 12000 block of Mountain Pass

4 drive, I believe it is on, approximately, I don’t know,

5 five or six houses east of the Van Dam home.

6 Q. What part of town?

7 A. In the Sabre Springs area.

8 Q. That’s the county of San Diego?

9 A. Yes.

10 Q. What is the command post?

11 A. It is a — well, it was a motorhome that

12 was — is set up for this type of incident where reports

13 can be written, meetings can be held, so on and so forth,

14 close to the incident itself.

15 Q. About what time did you get there?

16 A. Approximately between 6:45 and 7:00 A.M.

17 Q. Were you given an assignment?

18 A. Yes, I was.

19 Q. To do what?

20 A. I was assigned to re-contact each of the

21 immediate neighbors in the neighborhood, myself and

22 detective Mo Parga, contact each of the immediate neighbors

23 and take statements reference the weekend — the entire
24 weekend.

25 Q. Did you do that?

26 A. Yes, I did.

27 Q. How many houses did you and detective Parga go

28 to?

Page 165

1 A. We went to every house in the 12000 block, from

2 12000 to 12100.

3 Q. Can you estimate for us about how many houses?

4 A. Probably 12 houses, guessing.

5 Q. What did you do when you contacted these people?

6 A. At each of the houses, we spoke to the residents.

7 We got their names, address, telephone number, date of

8 birth, social security number, personal information that

9 they would give us, and then we asked them questions about

10 the weekend, where they were during the weekend, if they

11 had seen anything or heard anything unusual in the

12 neighborhood. That type of thing.

13 Q. Did you search the houses or go through them in

14 any sort of way at that time?

15 A. No, we didn’t at that time. It was my

16 understanding that the previous day officers had already

17 been through most of houses in the block.

18 Q. What did you do when you came to a house where

19 there were no occupants?

20 A. I believe there was only one house within that

21 block where there was no one home, and there was one other

22 house that was vacant, and I just noted it, that the one

23 house on the corner of Briar Leaf and Mountain Pass was

24 vacant. It was a for sale sign, and then one other house

25 there was no one home.

26 Q. The house where no one was home, which one was

27 that?

28 A. I’d have to refer to my notes to give you the

Page 166

1 exact address, but it was on the same side of the street as

2 the Van Dam house.

3 Q. Could you do that for us, please?

4 A. Sure.

5 MR. FELDMAN: I was wondering the reason why the

6 witness is referring to his notes, Your Honor.

7 THE COURT: Said he couldn’t remember the exact

8 address.

9 Isn’t that correct?

10 THE WITNESS: Yes, sir.

11 MR. FELDMAN: I still submit there’s additional

12 foundation lacking.

13 THE COURT: Technically you’re correct.

14 Ask him another question, counsel.

15 BY MR. DUSEK:

16 Q. By referring to the notes, your report, would

17 that assist your recollection in the exact address?

18 A. Yes, it would.

19 Q. Would you do that, please?

20 A. Yes.

21 The address was 12035 Mountain Pass.

22 Q. Do you know whose residence that was?

23 A. No, I don’t.

24 Q. Did you eventually locate a house that you came

25 to know was David Westerfield’s residence?

26 A. Yes.

27 Q. Was anyone there when you did your house-to-house

28 search?

Page 167

1 A. No.

2 Q. Which house was that?

3 A. The address was 11995 Mountain Pass.

4 Q. Where was that in relation to the

5 Van Dam residence?

6 A. It was on the opposite side of Briar Leaf, which

7 is the cross street of Mountain Pass, and it was two houses

8 west of the Van Dam house.

9 Q. The Westerfield house was on Mountain Pass?

10 A. It actually faces Mountain Pass, and Briar Leaf

11 is the cross street. The Van Dam — Mr. Westerfield’s

12 house is on the corner.

13 Q. And when you go across, sideways across that

14 street, Briar Wood you say?

15 A. Briar Leaf.

16 Q. Briar Leaf, you then come to another residence?

17 A. That is correct.

18 Q. Was that residence occupied?

19 A. That residence was a vacant residence. There was

20 a for sale sign in the yard.

21 Q. And next to that house is who?

22 A. Is the Van Dam house.

23 Q. So you were unable to make contact with anybody

24 at the Westerfield house on February 3rd?

25 A. That is correct.

26 Q. Did you complete your door-to-door search?

27 A. Yes.

28 Q. Did you go back the next day?

Page 168

1 A. Monday, the 4th, yes.

2 Q. What did you do the first thing on the 4th?

3 A. The very — well, I went to the command post,

4 which had now been moved to the northeastern substation.

5 From there I went back to Mr. Westerfield’s house. He was

6 at home at the time.

7 Q. Why did you go back to his house?

8 A. I had been advised that members of our special

9 investigations unit had seen Mr. Westerfield come out of

10 his house. They talked to him in his driveway and asked

11 him if he would mind talking with detective Parga and

12 myself. So we drove back to his house.

13 Q. Was he also one of the few people that you hadn’t

14 spoken to the day before?

15 A. Yes.

16 Q. So where did you go?

17 A. I went directly to his house and met with him in

18 his driveway.

19 Q. Did you go with anybody?

20 A. I was in my own car by myself, but

21 detective Parga met me in her vehicle.

22 Q. When you got to Mr. Westerfield’s house, who all

23 did you see?

24 A. I saw sergeant John Ray, detective

25 mark Tallman, detective Cindy Stetson, and I believe

26 detective Dave Morris were all there, but detective Tallman

27 and sergeant Ray were the only two talking with

28 Mr. Westerfield.

Page 169

1 Q. About what time?

2 A. Approximately 9:20, 9:30 in the morning.

3 Q. Where did you see them with Mr. Westerfield?

4 A. They were standing in the middle of his driveway.

5 Q. Do you see Mr. Westerfield in court today?

6 A. Yes, I do.

7 Q. Would you point him out, please, and describe

8 what he’s wearing today?

9 A. He’s sitting at the defendant’s table. He’s

10 wearing a cream-colored long-sleeved shirt that’s

11 unbuttoned at the top.

12 THE COURT: He’s identified Mr. Westerfield.

13 MR. DUSEK: Thank you, sir.

14 Q. What did you do when you arrived?

15 A. I began — actually detective Parga and I both

16 began talking to Mr. Westerfield about his whereabouts over

17 the previous weekend.

18 Q. What did you find out?

19 A. We found —

20 MR. BOYCE: Objection. Miranda. Voluntariness.

21 And I request an in camera hearing.

22 THE COURT: Counsel? How do you want to respond?

23 MR. DUSEK: Let me lay some foundation.

24 MR. BOYCE: I request it be done in camera,

25 Your honor, the basis of Alegressa versus superior court.

26 THE COURT: Counsel?

27 MR. DUSEK: There’s no jury. You’re the

28 fact finder. You’ll have to make that determination.

Page 170

1 MR. FELDMAN: The problem, Your Honor, the

2 problem we have is this may result in testimony implicating

3 inadmissible testimony which may be inadmissible at trial.

4 You have a gag order in place which basically says it would

5 not be appropriate to communicate that information out.

6 The concern here is that since counsel is seeking

7 to tender statements which a court may rule inadmissible,

8 it would be completely improper, it seems to us, to pollute

9 the community with inadmissible evidence.

10 So I recognize that that creates a problem for

11 the court, but, nevertheless, in balancing, it’s our

12 position the 6th amendment, on this limited issue, may take

13 priority over the 1st.

14 THE COURT: Counsel?

15 MR. DUSEK: The foundation —

16 MR. FELDMAN: Excuse me. 5th. Excuse me,

17 counsel.

18 MR. DUSEK: The foundational requirements are not

19 going to jeopardize anybody’s rights. We’ll be asking him

20 questions regarding Mr. Westerfield’s status, reaction,

21 and — without getting into statements at that time.

22 THE COURT: Proceed, counsel. Overruled.

23 MR. BOYCE: Your Honor, may I —

24 THE COURT: Proceed here. One at a time,

25 counsel. I’m only going to listen to one attorney on each

26 issue. Okay.

27 Go ahead.

28 /////

Page 171

1 BY MR. DUSEK:

2 Q. Was Mr. Westerfield under arrest?

3 A. No, he was not.

4 Q. Did you have any basis to arrest him at that

5 time?

6 A. No, I did not.

7 Q. Was there a reason that you wanted to talk to

8 him?

9 A. I knew that he had had contact with

10 Brenda Van Dam on the previous Friday evening.

11 MR. FELDMAN: Objection. Speculation,

12 foundation.

13 THE COURT: Overruled.

14 THE WITNESS: And I wanted to find out where he

15 was during the weekend.

16 BY MR. DUSEK:

17 Q. Had you been able to speak with him earlier on

18 the house-to-house search?

19 A. No.

20 Q. Did you speak with the other people in the

21 neighborhood, like you were trying to speak with

22 Mr. Westerfield?

23 A. Yes, I did.

24 Q. Was he in handcuffs?

25 A. No, he was not.

26 Q. Was he restrained in any way?

27 A. Not. Not in any way.

28 Q. Did you explain to him why you were there?

Page 172

1 A. Yes, I did.

2 Q. What did you tell him?

3 A. I told him we had spoken with each of the other

4 neighbors on the previous day and that we had come to his

5 house, but he was not home, and now that he was home, we’d

6 like to talk to him about his whereabouts and what he

7 might — what, if anything, he might know about Danielle’s

8 disappearance.

9 Q. Did he express any reluctance or hesitancy to

10 speak with you?

11 A. No, he did not.

12 Q. How did he respond?

13 MR. BOYCE: Objection. Miranda, voluntariness,

14 5th and 14th amendments, Your Honor.

15 THE COURT: How did he respond to what?

16 MR. DUSEK: Advising him of why they wanted to

17 speak.

18 THE COURT: Overruled.

19 THE WITNESS: He was willing to talk to us.

20 BY MR. DUSEK:

21 Q. Where did you speak with him?

22 A. We spoke with him on his front porch.

23 Q. Wasn’t at the police station?

24 A. No, he was not.

25 Q. Wasn’t in a police car?

26 A. No.

27 Q. Was he free to refuse to talk to you at that

28 time?

Page 173

1 A. Most certainly.

2 Q. Did you then ask him questions about what you

3 wanted to know?

4 A. Yes.

5 THE COURT: Did you want to ask questions at this

6 point with respect to the voluntariness?

7 MR. BOYCE: Yes, Your Honor.

8 THE COURT: Okay. Go ahead. Let him do that for

9 foundational purposes only.

10

11 CROSS-EXAMINATION

12 BY MR. BOYCE:

13 Q. On February 4th when you arrived at

14 Mr. Westerfield’s driveway, did you walk or drive to that

15 driveway?

16 A. I drove.

17 Q. You drove. And where did you park your car?

18 A. I parked it on Briar Leaf, on the side street,

19 basically on the side of his house.

20 Q. Were you blocking the driveway?

21 A. No.

22 Q. When you arrived there, did you see other

23 police cars blocking the driveway?

24 A. I saw one parked to the west of the driveway. I

25 don’t recall seeing one blocking the driveway.

26 Q. And when I say police cars, I include any marked

27 or unmarked police vehicles.

28 A. Again, I don’t recall seeing one blocking the

Page 174

1 driveway. I recall seeing one at the west edge of the

2 driveway.

3 Q. Would this have interfered with anyone’s egress

4 or ingress into that driveway?

5 A. No. There was room for anyone’s vehicle to come

6 in or out.

7 Q. And when you arrived at the driveway, who was

8 there before you got there?

9 A. Again, sergeant Ray and detective Tallman were

10 standing in the driveway with Mr. Westerfield. I believe

11 detective Morris was also there. Detective Stetson arrived

12 I think just about the same time I did.

13 Q. What about detective Parga?

14 A. She also arrived — I think she arrived within

15 about 30 seconds after I did.

16 Q. Did you mention detective Mobley?

17 A. I did not mention it earlier. I don’t remember

18 if he was there or not.

19 Q. So there were approximately, besides yourself,

20 five or six other police officers in Mr. Westerfield’s

21 driveway; is that correct?

22 A. Not in the driveway. They were standing on the

23 sidewalk around the house.

24 Q. Where was Mr. Westerfield at this time?

25 A. He was standing in the driveway talking with

26 sergeant Ray and detective Tallman.

27 Q. So there were at least two police officers in the

28 driveway; is that correct?

Page 175

1 A. That’s correct.

2 Q. And there were another four or five officers

3 alongside the driveway?

4 A. I believe there were another two detectives on

5 the sidewalk, and then myself, detective Parga, and, again,

6 detective Stetson all arrived about the same time.

7 Q. Before you went to the driveway that morning,

8 were you present at an extensive briefing conducted at the

9 northeastern substation, special investigations unit team 1

10 was there?

11 MR. DUSEK: Objection. Irrelevant. No

12 foundation.

13 THE COURT: I think I know where he’s going. See

14 if I’m right. Overruled.

15 THE WITNESS: I was not present or involved in a

16 briefing with just special investigations, no. When I

17 arrived at the northeastern substation on Monday,

18 February 4th, the special investigations unit was not at

19 the northeastern sub.

20 BY MR. BOYCE:

21 Q. Were you present at a briefing given by

22 sergeant ray?

23 THE COURT: That morning?

24 MR. BOYCE: That morning.

25 THE WITNESS: No.

26 BY MR. BOYCE:

27 Q. When you contacted Mr. Westerfield, you were

28 armed; is that correct?

Page 176

1 A. Yes.

2 Q. And where was your gun at that time?

3 A. On my right side, where it always is.

4 Q. And the other officers, to your knowledge, they

5 were also armed; is that right?

6 A. As far as I know. I couldn’t say for sure.

7 Q. When you approached Mr. Westerfield, he was being

8 talked to by Sergeant Ray and one other detective; is that

9 right?

10 A. Correct.

11 Q. Do you know who was doing the questioning,

12 Sergeant Ray or — was it detective Morris?

13 A. No. It was detective Tallman and — I don’t

14 believe they were questioning him. I believe they were

15 just — it was just general chitchat. I don’t believe they

16 were talking to him about the case at all.

17 Q. It was at some point after that that — did you

18 question Mr. Westerfield?

19 A. Myself and detective Parga, yes.

20 Q. And this occurred in the driveway; is that right?

21 A. It occurred in the — between the driveway and

22 the front — the front porch there’s a little walkway, and

23 it occurred in that little walkway, within I’d say

24 two feet of his front porch.

25 Q. So when you questioned him, you and

26 detective Parga were present?

27 A. Correct.

28 Q. Along with Sergeant Ray and detective Tallman; is

Page 177

1 that right?

2 A. No. Sergeant Ray and detective Tallman did not

3 walk up to the front porch with us. When detective Parga

4 and I questioned Mr. Westerfield, it was just the three of

5 us at his front porch.

6 Q. And when you approached Mr. Westerfield, you told

7 him you wanted to talk to him; is that right?

8 A. That’s correct.

9 Q. You didn’t advise him of his right to remain

10 silent, did you?

11 A. No, I did not.

12 Q. You didn’t advise him of his right to an

13 attorney, did you?

14 A. No, I did not.

15 Q. How many officers were in the general area when

16 you contacted Mr. Westerfield, total?

17 A. I’d say seven, including myself.

18 Q. And within eyesight were there other officers at

19 the Van Dams’ house, also?

20 A. I don’t recall seeing any officers standing

21 around at the Van Dams’ house, no.

22 Q. Within eyesight were there more than just the

23 seven officers that you’ve told us about?

24 A. No. And even some of those at the time that

25 detective Parga and I were talking to Mr. Westerfield, some

26 of those officers were not within eyesight. They were

27 around the corner in the driveway.

28 Q. I believe you told us that there were only

Page 178

1 two houses in the vicinity of the Van Dams’ house in which

2 you had not talked to the occupants; is that correct?

3 A. That’s correct.

4 Q. And Mr. Westerfield’s house was one of those

5 houses, one of those two houses; is that correct?

6 A. One of the two occupied houses, yes.

7 Q. Well, wasn’t the other house unoccupied? Wasn’t

8 it vacant?

9 A. No. 12035 Mountain Pass is an occupied house,

10 but there was no one home.

11 Q. So you had talked to everyone else in the

12 neighborhood; is that correct?

13 A. Correct.

14 Q. And you told — did you tell Mr. Westerfield he

15 was a prime suspect?

16 A. Absolutely not.

17 Q. You told him you wanted to interview him

18 regarding the disappearance of a little girl; is that

19 right?

20 A. I told him that I wanted to talk to him to find

21 out where he was over the weekend, yes.

22 Q. And then you proceeded to interview him; is that

23 right?

24 A. I proceeded to question him on his whereabouts

25 over the weekend, yes.

26 MR. BOYCE: Your Honor, under the circumstances,

27 I would submit that no reasonable person in

28 Mr. Westerfield’s shoes would believe they were free to

Page 179

1 leave at that time.

2 THE COURT: Objection is overruled. Proceed.

3

4 DIRECT EXAMINATION (RESUMED)

5 BY MR. DUSEK:

6 Q. Were you in uniform?

7 A. No, I was not.

8 Q. Was your gun visible?

9 A. I believe I was wearing a jacket that morning.

10 It was a cool morning.

11 Q. So the gun would be visible or not?

12 A. Only if my jacket were to come open. But

13 standing still, no.

14 Q. Describe the tone of the conversation you had

15 with Mr. Westerfield.

16 A. It was basically the same tone that myself and

17 the defense attorney just had, just casual talking.

18 Q. When you were done speaking with Mr. Westerfield,

19 did you arrest him?

20 A. Absolutely not.

21 Q. When you spoke with him there, how long would you

22 say you were — the discussion went on?

23 A. I’d guess between 25 and 30 minutes.

24 Q. Did you notice any physiological reaction as you

25 were questioning him?

26 A. Yes.

27 Q. First of all, before we get into that, describe

28 the weather, if you would.

Page 180

1 A. I would guess the temperature was between 50 and

2 55 degrees. It was a cool morning.

3 Q. How were you dressed?

4 A. I was dressed in a pair of blue jeans, a

5 polo shirt, and I had a jacket on.

6 Q. Why the jacket?

7 A. Again, because it was a cool morning.

8 Q. How was he dressed, Mr. Westerfield?

9 A. He was wearing a pair of faded blue jeans, some

10 kind of, I don’t know what you call them, kind of

11 bamboo knit slip-on shoes, and he had on a gray long-sleeve

12 pullover shirt. It wasn’t a polo shirt. It didn’t have a

13 collar, but it had the three buttons that start about the

14 middle of the chest and go up. It was kind of a

15 knit material.

16 Q. As your discussion with Mr. Westerfield

17 continued, did you notice any physiological reaction?

18 A. Yes.

19 Q. Describe it.

20 A. I noticed that Mr. Westerfield was sweating

21 profusely under both arms, to the point that the sweat

22 rings actually protruded out from the armpits a couple of

23 inches all the way around to the back of his arms.

24 Q. Were you out in the sun when you were talking to

25 him or under some sort of cover?

26 A. No. We were within a shaded area right beside

27 his house.

28 Q. When you spoke with him, did you — what was the

Page 181

1 first thing that you talked to him about?

2 A. I told him that we were investigating the

3 disappearance of Danielle Van Dam, and I asked him where he

4 was for the entire weekend.

5 Q. Did you start with the Friday, his activities on

6 Friday?

7 A. He initially started telling me about Saturday,

8 and I stopped him and I said let’s back up to Friday, tell

9 me what happened on Friday.

10 Q. And what did he say happened on Friday?

11 A. He told me that he had spent Friday evening at

12 home alone. He grilled a steak and had dinner alone, and

13 then after eating dinner, he went to a local hangout called

14 dad’s bar.

15 Q. Did he tell you where dad’s was?

16 A. He didn’t give me an address or directions, but

17 he said it’s about five minutes from his house.

18 Q. Were you familiar with dad’s at that point?

19 A. No.

20 Q. Did he say who he went there with or how he got

21 there?

22 A. He said he went by himself. He drove his

23 black 4-Runner, and that he met a friend named Gary there.

24 Q. Could he give you Gary’s last name?

25 A. No, he couldn’t.

26 Q. Did you ask?

27 A. Yes, I did.

28 Q. Why?

Page 182

1 A. Again, because I wanted to find out who Gary was

2 and talk to Gary and find out what he might know.

3 Q. Mr. Westerfield say what he did at dad’s?

4 A. He said he mostly drank. He said he had several,

5 as he put it, rum and cokes, and that at one point he ran

6 into Brenda Van Dam at Dad’s Bar.

7 Q. Did he use her name, by name?

8 A. He used her first name, Brenda.

9 Q. Did he say what his relationship with

10 Brenda Van Dam was?

11 A. He told me he’d only met her, including that

12 meeting, he’d only met her three times.

13 Q. What were the three occasions that he told you

14 he’d run into Brenda Van Dam?

15 A. The first occasion was the Friday night previous

16 to Friday, February 1st. He said he met her — or he saw

17 her at Dad’s Bar.

18 Q. Did he describe what happened that Friday before?

19 A. He just mentioned that she was there with a

20 couple of girlfriends and that he had seen her playing pool

21 and drinking.

22 Q. Say whether or not he had any contact with her,

23 aside from what you’ve told us already?

24 A. He did not mention any contact with her on that

25 Friday night.

26 Q. When did he say was the second contact he had

27 with Brenda Van Dam?

28 A. He said the second contact was either the

Page 183

1 Wednesday or Thursday, which would have been January 30th

2 or 31st, I believe, would have been the dates. He said

3 Brenda and her daughter Danielle and her youngest son came

4 to his door selling girl scout cookies.

5 THE COURT: Selling what?

6 THE WITNESS: Girl scout cook is.

7 THE COURT: Got it.

8 BY MR. DUSEK:

9 Q. And this day you’re talking about is between the

10 two Fridays at Dad’s?

11 A. That is correct.

12 Q. He describe the contact with Brenda Van Dam and

13 her children on that cookie selling time?

14 A. Yes, he did.

15 Q. What did he say?

16 A. He said that when he first opened the door,

17 Brenda told him we’re selling girl scout cookies, and that

18 he invited her in and spoke to her about the cookies

19 initially while the children ran around the house.

20 Q. Say whether or not he bought any cookies?

21 A. I believe he said he bought two boxes of assorted

22 cookies.

23 Q. And where did he say the kids went?

24 A. He said that they were running all around the

25 lower level of the house. I asked him if the children ever

26 went upstairs, and he said he would not discount that they

27 may have, but he doesn’t remember, and he said that they

28 went out the back door and was running around the back yard

Page 184

1 and around the pool.

2 Q. Did he talk about any conversation he had with

3 Brenda Van Dam at the cookie selling occasion?

4 A. Yes.

5 Q. What did he say?

6 A. He said that he had asked her about her

7 two female friends that was at Dad’s Bar. He just casually

8 mentioned that hey, you know, who are your friends, you

9 didn’t introduce me to them, and that they — he mentioned

10 to her that he occasionally has barbecues and that he’d

11 like to invite her and her husband over sometime. And that

12 at that point Brenda gave him her phone number so that he

13 could invite her and Damon over for a barbecue sometime.

14 Q. Did he express any romantic interest in either

15 Brenda or her two friends?

16 A. No. Not at that point.

17 Q. Later on did he during this conversation in the

18 doorway?

19 A. No.

20 Q. Did he estimate for you how long she was in his

21 house selling the cookies?

22 A. I think he said about 15 minutes.

23 Q. Did he describe any other relationship with

24 either Brenda Van Dam or her husband or her children?

25 A. No. He then went on to describe the

26 third meeting with Brenda.

27 Q. Third meeting was when?

28 A. The third meeting was Friday, February 1st, again

Page 185

1 at dad’s bar.

2 Q. And this would have been after he’d cooked the

3 stake on the barbecue?

4 A. That’s correct.

5 Q. Did he describe for you what happened at Dad’s

6 when he went over there?

7 A. He said he went over and met his friend Gary.

8 That they began drinking.

9 Q. About what time?

10 A. I believe he said it was around 8:30 or 9:00.

11 Q. In the evening?

12 A. In the evening.

13 Q. Did he further describe what was going on over

14 there?

15 A. He said at one point he saw Brenda and her

16 two female friends talking to two other men.

17 Q. Did he indicate whether those men were friends of

18 his or a friend of Brenda Van Dam’s?

19 A. He said he felt they were friend’s of Brenda. He

20 did not know them.

21 Q. Did he go on to describe what happened?

22 A. He saw them playing pool and drinking, and he

23 mentioned that at one point he had a brief conversation

24 with Brenda.

25 Q. Did he say what they talked about?

26 A. Yeah. He said that Brenda had mentioned to him

27 that her daughter had a father-daughter event coming up

28 later the next week and that she had bought — he thought

Page 186

1 was either a blouse or a dress for Danielle. He mentioned

2 that Brenda told him that her husband Damon was not real

3 excited about his little girl growing up too fast. And

4 then he paused for a minute and then he made a statement,

5 he said, “I could have swore she said that she had a

6 baby-sitter. I didn’t know her husband was at home with

7 the kids.”

8 Q. Referring to what night?

9 A. Referring to that particular Friday night,

10 the 1st.

11 Q. Did he describe any further what happened at

12 dad’s?

13 A. No. He said that he himself left shortly

14 thereafter. He said between 11:00 and 11:30, he left by

15 himself.

16 Q. Did he say what happened to his friend Gary?

17 A. I believe he said his friend Gary was still there

18 or maybe Gary left the same time he did, but he said he

19 left on his own and went home.

20 Q. Did he indicate whether or not Brenda Van Dam and

21 her friends were still at Dad’s when he left?

22 A. He said he thought they were still there.

23 In fact, he mentioned when he got home he did not see

24 Brenda’s truck. he referred to it as a truck.

25 Q. Did he say anything about thinking he saw

26 Damon Van Dam’s vehicle?

27 A. No. Actually he said that — when he told me

28 that he had not — he did not see Brenda’s truck in the

Page 187

1 driveway, then he said, in fact I don’t even remember

2 seeing Damon’s blue van near the house.

3 Q. Did he say what he did?

4 A. He told me that shortly after getting home he

5 went right to bed.

6 Q. Did you then ask him about the next day,

7 Saturday?

8 A. Yes.

9 Q. How did he describe it got started?

10 A. He said he woke up sometime between 6:30 and

11 7:00. And he kept giving me time frames. Because he

12 pointed to his watch on a couple of occasions and told me

13 that it was nothing more than a piece of jewelry, that he

14 didn’t pay attention to time. He said he got up around

15 6:30 or 7:00, took a shower, and left his house around 7:45

16 and drove to what he referred to as high valley to get his

17 motorhome.

18 Q. Did he say why he went to get his motorhome?

19 A. He said he had decided to go to the desert.

20 Q. Did he say how much planning he put into that

21 decision?

22 A. No.

23 Q. What did he say he did?

24 A. He said it’s about a 25-minute drive up to

25 High Valley. And once he got to the motorhome, he loaded a

26 couple of things into the motorhome from his 4-Runner, a

27 box of eating utensils and that type of thing that he

28 normally keeps in the motorhome, and that he parked his

Page 188

1 4-Runner up at the address in High Valley and drove his

2 motorhome back down to his home on Mountain Pass.

3 Q. Did he indicate that’s where he keeps his

4 motorhome, where he stores it?

5 A. Yes. He said that’s where he stores it.
6 Q. So he did what with his SUV?

7 A. He left it parked at the same address that he

8 stores his motorhome.

9 Q. And then went where in his motorhome?

10 A. He said he drove directly to his house on

11 mountain pass.

12 Q. And did what?

13 A. He said he drug the hose out across the yard and

14 filled the water tanks on the motorhome. He then stocked

15 the motorhome with groceries. And from there he drove to

16 the silver strand in Coronado.

17 Q. Did he say what time this activity was going on

18 at his house with the motorhome?

19 A. He mentioned leaving his house around 7:45 to go

20 get the motorhome. He didn’t remember how long it took him

21 to actually get it and get back, but he remembers after

22 getting back to his home, filling the water tanks and

23 stocking the motorhome with groceries, he felt like it was

24 about 9:50 in the morning when he actually left his house

25 to go to the silver strand.

26 Q. Did you get a chance to eventually examine his

27 house, the way he keeps his things?

28 A. Yes.

Page 189

1 Q. Did you notice anything specific about the way he

2 keeps his belongings?

3 A. When I went in the house, I noticed that the

4 house was immaculate. Everything appeared to be in its

5 place. I didn’t see — you know, I didn’t see dirty

6 footprints on the carpet. I didn’t see things laying out.

7 Everything appeared to be in its place, where, you know,

8 where it should be.

9 Q. How ordinarily?

10 A. Extremely ordinarily.

11 Q. Did he tell you he tried to fill up or he did

12 fill up the motorhome with some sort of water somehow?

13 A. He told me he filled the water tanks in the

14 motorhome with his hose.

15 Q. Did you see the hose?

16 A. Yes, I did.

17 Q. How orderly was it?

18 A. The hose was stretched all the way out to the

19 sidewalk from his — the hose bib is actually approximately

20 10 feet out from his front door. It would actually be, if

21 you look out his front door looking north, the hose bib is

22 about 10 feet out on the garage wall. And the hose was

23 stretched out to the east, like you’re walking towards the

24 Van Dam house, and then once it got to the sidewalk, it was

25 doubled back, so that it was doubled up laying in the yard.

26 Q. How orderly did it look?

27 A. It looked like it had just been throw there.

28 Q. Did you ask him why he didn’t crank it back up

Page 190

1 and make it orderly?

2 A. We asked him, and he just said he didn’t think

3 about it. He said I used it to fill the water tanks and I

4 just threw it back up here.

5 Q. Did he say anything about being in a hurry?

6 A. No. He didn’t mention he was in a hurry at that

7 point.

8 Q. From there he said he wept where?

9 A. He said he went to the silver strand in Coronado.

10 Q. Did he say why he went down there?

11 A. Well, originally he told me that he had planned

12 to go to the desert, but that once he got his motorhome, he

13 realized he didn’t have his wallet and he didn’t have very

14 much money. So he didn’t have the money to get gas, the

15 way he put it. So he went to the silver strand because he

16 didn’t have enough gas to make it to grams.

17 Q. Is the silver strand free?

18 A. No.

19 Q. Do you have to pay?

20 A. You had to pay.

21 Q. How much?

22 A. He said the weekend would cost him 24 dollars.

23 Q. Did he say what he paid?

24 A. He said he paid cash. He said he thought he paid

25 24 dollars, but that a park ranger, after he’d been there

26 for a little while, a park ranger came back to him and told

27 him that he’d actually overpaid by 30 dollars.

28 Q. He said he went to the silver strand because he

Page 191

1 didn’t have money to go to the desert?

2 A. Correct.

3 Q. Did he say how long he stayed at the

4 Silver Strand after he paid — how much?

5 A. He actually paid, according to the park ranger,

6 he actually paid 54 dollars.

7 Q. Did he say how long he stayed there?

8 A. He said that he stayed a short time, but it was

9 too cold for him. So he turned and went back home to look

10 for his wallet. He said he estimates that he got back to

11 his house at approximately 3:30 in the afternoon.

12 Q. That same Saturday?

13 A. That same Saturday.

14 Q. How many days or nights had he paid for at the

15 strand?

16 A. He said he paid for the entire weekend.

17 Q. So he drove from the silver strapped in his

18 motorhome back to his residence; is that correct?

19 A. Back to the neighborhood. He said that he

20 couldn’t actually get to his residence with the motorhome

21 because he saw all the police cars and news trucks.

22 Q. Where did he say he parked?

23 A. He said he parked about halfway between his house

24 and the little park that is west of his house, about a

25 block west.

26 Q. Did he say what he did at his house that time?

27 A. He said he actually walked up the north curbline,

28 which is the opposite curbline that he lives on. He spoke

Page 192

1 to one family that lives about two houses west of him. He

2 just said hi. And that as he got to the actual corner of

3 Mountain Pass and Briar Leaf, he spoke to his neighbor

4 Mark. Mark lives on the opposite corner of Mountain Pass

5 and Briar Leaf, directly across the street from

6 Mr. Westerfield.

7 Q. What did he say he did?

8 A. Well, he said Mark told him about the little girl

9 being missing, and that he got worried and he decided he’d

10 better check his house. So he said he walked through his

11 house and checked his house and checked his back yard and

12 pool area, just to make sure the little girl didn’t come

13 into his yard and fall in the pool and drown.

14 Q. Did he say when he spoke to the police?

15 A. He said that he did not speak to the police while

16 he was at home that particular time.

17 Q. Did he say why not?

18 A. He told me that he had mentioned to Mark that if

19 by chance the police wanted to talk to him for any reason,

20 Mark had his business card and could leave him a message

21 and he’d get back in touch.

22 Q. Did he tell you where he went from there?

23 A. He said from there he drove — he realized that

24 his wallet was not at home, it must be in his 4-Runner. So

25 he drove from his house back up to High Valley. The actual

26 address is 15250 sky ridge road.

27 Q. How far away is that?

28 A. I didn’t measure the actual distance, but it’s

Page 193

1 approximately a 20 to 25 minute drive from his house.

2 Q. He say where he went from that location?

3 A. He said before driving up to High Valley and

4 retrieving his wallet, he then drove to a Chevron

5 gas station that was near I-15 and the Ted Williams Parkway

6 and filled his motorhome with gas.

7 Q. Did he say how he paid for it?

8 A. He said he paid with his credit card.

9 Q. Then where did he say he went?

10 A. From there he said he drove up through Escondido,

11 past the wild animal park, and as he put it, around the

12 back way to Glamis.

13 Q. Where is grams?

14 A. I’m not real familiar with the area, but grams is

15 out in the desert east of San Diego. Actually I believe

16 it’s in imperial county.

17 Q. And he drove the back way there?

18 A. According to him, he drove the back way.

19 Q. Did he say why he didn’t go on the freeways?

20 A. No, he didn’t.

21 Q. Did he give you an approximation as to when he

22 arrived in Glamis?

23 A. He said he thought it was around 10:00 or 10:30

24 Saturday night when he arrived in grams.

25 Q. Did he say what he was going out there to do?

26 A. No, he didn’t. He said that he just wanted to

27 spend the weekend out in the desert. But once he got to

28 Glamis, he said he did drive down two or three of the

Page 194

1 washes looking for friends that are always out there.

2 Q. Did he say what happened?

3 A. He said he went down — I believe he said wash 3

4 and wash 6 looking for friends, and he didn’t find any of

5 them. So he continued on and eventually ended up in

6 wash 14 where he decided to park.

7 He said that one of the rings of people nearby

8 was extremely loud. So he thought he’d pull in a little

9 further in to get past some of the noise. And that as he

10 pulled further in, he got his motorhome stuck.

11 Q. How big a motorhome?

12 A. I believe it was a 35 foot. 35 to 40 foot.

13 Q. Did he describe for you his experience in the

14 desert, in recreating out there?

15 A. To some extent, yes.

16 Q. How familiar was he with the area and the driving

17 ability out there?

18 A. Well, he told us that he goes to the desert on a

19 frequent basis. He, in fact, has a dune buggy, referred to

20 as a rail, and also a couple of quad runners that he takes

21 out there quite a bit.

22 Q. After he got stuck, did he say what he did?

23 A. He said that it was dark, he just spent the night

24 there, and the next morning he began digging himself out

25 and asked for somebody to help pull him out.

26 Q. Did he describe someone actually helping him?

27 A. He did. In fact, in our initial conversation he

28 said that he got pulled out the next morning. He said he

Page 195

1 only spent about six to eight hours stuck in the sand, and

2 then a gentleman did come along and pull him out.

3 Q. Did he talk about providing you with any evidence

4 of that activity?

5 A. He mentioned that the gentleman that pulled him

6 out charged him 150 dollars, and that he was only able to

7 give the gentleman 80 dollars at that point, and that he

8 wrote the gentleman’s name and phone number down on a piece

9 of paper so that he would — actually I think his name and

10 address, so that he would be able to send the rest of the

11 payment to the gentleman. And he did mention that the

12 piece of paper was in his house.

13 Q. From Glamis, where did he say he went?

14 A. He said once he got pulled out at Glamis, he

15 drove to superstition. Said he was only there about 20 or

16 30 minutes. Didn’t really care for what he saw. So he

17 drove onto Borrego.

18 THE COURT: Superstition out there in the desert

19 near Glamis someplace?

20 THE WITNESS: I’m assuming so, yes, sir.

21 THE COURT: All right.

22 BY MR. DUSEK:

23 Q. And did he describe what happened at Borrego?

24 A. He said once he got to Borrego, he pulled down a

25 little road that he said once he started driving down it,

26 he realized it was narrowing and that he shouldn’t have

27 pulled down it. He said once again he got stuck, and he

28 had to dig himself out all by himself this time.

Page 196

1 Q. About what time?

2 A. He said it was in the afternoon. Because he said

3 he spent a little over an hour digging himself out. And

4 once he dug himself out, he left Borrego, decided to head

5 back to the strand. And he mentioned that was about 6:00

6 in the evening when he left Borrego.

7 Q. So after making this loop and ending up in

8 Borrego, he says he’s going back to the strand?

9 A. Correct. He said he had not had any fun in the

10 desert, and that he felt that maybe — maybe it had gotten

11 warmer at the strand. So he decided to go back to the

12 strand since had paid for a full weekend.

13 Q. What time of day or night was this?

14 A. He said he left Borrego around 6:00 P.M. on

15 Sunday evening.

16 Q. And according to Mr. Westerfield, where did he

17 say he went after that?

18 A. He said he backtracked back through

19 Warner Springs, and he said that he didn’t want to drive

20 through Julian. He felt it had probably snowed there and

21 it would be a rough ride for him in the motorhome. So he

22 went around the mountain, through warner springs, back

23 through Escondido, and then down to the Silver Strand from

24 there.

25 Q. Where is the silver strand?

26 A. The silver strapped is actually the silver strand

27 state beach. It’s in Coronado, California.

28 Q. Did he say why he didn’t drive on the

Page 197

1 interstate 8 freeway?

2 A. No. He just mentioned the snow in Julian and

3 that he had to drive all the way around the mountain to

4 avoid the snow.

5 Q. What happened at the strand, according to him?

6 A. According to him, the gates at the strand close

7 at 7:00 P.M., and that he had just missed the closing of

8 the gates. He said he thought it was around 10 after 7:00

9 Sunday evening when he got there. And that when he

10 realized the gates were closed, he drove over across the

11 street to the Coronado Cays and parked his motorhome and

12 spent most of the night there.

13 THE COURT: I’m sorry. He testified that he got

14 to the Silver Strand and the gates closed at 7:00 P.M.?

15 THE WITNESS: The gates — according to him, the

16 gates closed at 7:00 P.M. and he said he got there, he was

17 estimating around 10 after 7:00.

18 THE COURT: And what time did he leave Borrego?

19 THE WITNESS: He — according to him, he left

20 Borrego at approximately 6:00 P.M.

21 THE COURT: Go ahead.

22 BY MR. DUSEK:

23 Q. Do you have any idea how far it is from Borrego

24 around the mountain, the route he took to the

25 Silver Strand?

26 A. I don’t have an idea of mileage, but I would

27 guess it’s much more than an hour’s drive.

28 MR. FELDMAN: Motion to strike. Speculation.

Page 198

1 It’s guessing.

2 THE COURT: Overruled.

3 BY MR. DUSEK:

4 Q. Did he say where he parked that night?

5 A. He said he parked in the parking lot at the

6 Coronado Cays, which is across the street from the

7 Silver Strand.

8 Q. Did he describe the set-up over there, what it

9 was all about?

10 A. He didn’t describe it during our initial

11 conversation, no. He just said that he had seen motorhomes

12 parked there before and didn’t see any signs restricting

13 the motorhomes. So he felt it was okay to park there for

14 the evening.

15 Q. What was the next thing he said he did?

16 A. Said he slept for a few hours, and then around

17 4:00 or 4:30 Monday morning he decided it was time to go

18 home.

19 So he drove his motorhome back up to High Valley,

20 emptied it out. He said he took his groceries, put them in

21 the SUV, in the 4-Runner, and took his linen and then drove

22 the 4-Runner back to his house.

23 Q. Did he describe stopping in the early morning

24 hours before he actually went up to the motorhome?

25 A. Yes. He said when he got back to High Valley, it

26 was still a little bit early. He felt that if he drove up

27 there he may make somebody up. So he said he actually

28 pulled off into a parking lot and slept for about an hour

Page 199

1 before he actually drove up to High Valley.

2 Q. And did he describe for you about what time he

3 went up to the High Valley to switch vehicles?

4 A. He said he arrived at the address at

5 approximately 7:30.

6 Q. In the morning?

7 A. In the morning, on Monday morning.

8 Q. Then what did he tell you he did?

9 A. From there he said he took groceries and stuff

10 out of the motorhome, put them back in the 4-Runner and

11 drove the 4-Runner back to his house.

12 Q. And what did he do at that point, according to

13 him?

14 A. He said he arrived back at his house at

15 approximately 8:30 Monday morning. And once he got there,

16 he took a shower and did one load of laundry.

17 Q. Say what he washed?

18 A. I don’t recall him saying at the time what he

19 washed. He did mention that that load he had put in the

20 dryer, but the dryer didn’t work because the lint filter

21 was too full.

22 Q. In your discussion with Mr. Westerfield, did he

23 ever mention stopping and taking laundry into a

24 dry cleaners in Poway after he returned from the

25 silver strand?

26 A. In the initial conversation, he never mentioned

27 that, no.

28 Q. In your conversation with him, did he ever

Page 200

1 indicate he went anywhere near Dehesa Road?

2 A. No, he did not.

3 Q. Have you been to Dehesa Road?

4 A. No, I have not.

5 Q. Were you there where the body was recovered?

6 A. No. On the day the body was recovered, I had

7 driven to Riverside to follow up on another lead and, I did

8 not go to Dehesa Road.

9 Q. Do you know where it is?

10 A. I know where it is, yes.

11 Q. Did he in his discussion with you, did he

12 describe going anywhere near that place?

13 A. No, he did not.

14 Q. Once you finished your conversation with him,

15 what did you do?

16 A. After finishing the conversation with him, with

17 his permission, we went into his house, detective Parga and

18 I went into his house and looked around his house.

19 Q. What do you mean with his permission?

20 A. I had produced a consent to search form. On one

21 side it describes a consent to search the residence or

22 premises. On the opposite side it is a consent to search

23 for vehicles. I had read the form to him, asked him for

24 his permission to search both his house and his vehicles,

25 including his motorhome. And he signed the consent to

26 search, giving detective Parga and I permission to search

27 both.

28 Q. What were you looking for?

Page 201

1 A. At the time we really didn’t know. We were just

2 looking for anything out of the ordinary.

3 Q. How thorough was your walk-through?

4 A. We didn’t search. We just walked through. It

5 was basically a cursory walk through his home.

6 Q. Who did that?

7 A. Detective Parga and myself.

8 Q. And how about Mr. Westerfield? What did he —

9 A. Mr. Westerfield tagged along with us, followed us

10 everywhere we went.

11 Q. What was his state of cooperation?

12 A. As we walked through his house, if he saw an area

13 that we didn’t look at, he pointed it out and suggested we

14 might want to look at it. He pointed out closets, pointed

15 out cabinets.

16 In fact, in the upstairs hallway he even pointed

17 out the trap door to the attic and suggested that he’d get

18 a ladder if I wanted to look up there and suggested that I

19 should probably look up there.

20 Q. How cooperative was he, would you say?

21 A. In my opinion, he was overly cooperative.

22 Q. Why?

23 MR. BOYCE: Objection. Relevance. Move to

24 strike.

25 THE COURT: Overruled.

26 BY MR. DUSEK:

27 Q. Why do you say that?

28 A. Well, again, I’ve been doing this for 16 years,

Page 202

1 and typically when we search people’s houses —

2 MR. BOYCE: Objection. Improper opinion.

3 THE COURT: He’s giving you the basis of his

4 opinion. Overruled.

5 THE WITNESS: Typically when we search people’s

6 houses, they don’t point out areas that they think we

7 should look at. They just stand back and watch us search.

8 And, in fact, sometimes ask us why we’re searching in

9 certain areas.

10 BY MR. DUSEK:

11 Q. Are you able to estimate for us how many spots he

12 pointed out to you guys?

13 A. With inside the confines of the house, I’d say

14 four or five. Mostly closets and cabinets, and, again, the

15 attic, and then again in the garage, pointed to a row of

16 standing cabinets along the west wall of the garage

17 that — there was a lot of things piled in front of the

18 cabinets, but he suggested that if I wanted to search

19 those, he’d be glad to move everything out of the way.

20 Q. Can you describe the state of cleanliness or

21 orderliness of his house?

22 A. The house itself, again, was immaculate.

23 Everything was — seemed to be in its place. I didn’t see

24 any dirty clothes laying around. I didn’t see dirty dishes

25 in the kitchen.

26 Probably the only thing that even could be

27 construed as out of place was in the master bedroom, what

28 he described as his bedroom. The master bed was unmade.

Page 203

1 There was a fitted sheet and a top sheet on it, but the

2 comforter was missing. And as we walked into the room, he

3 apologized profusely for it being in that condition. He

4 said that he had stripped the bed before he went to the

5 desert, and he apologized several times for the condition

6 of his room.

7 Q. Where was the comforter?

8 A. There was a comforter laying on top of the

9 washer. There’s a small wash area where there is a washer

10 and dryer in the downstairs, and it was — there was a

11 comforter laying on top of the washer.

12 Q. Describe its condition. Can you?

13 A. It obviously had not been washed yet. It was

14 folded on top of the washer and there was remnants of

15 desert sand, I guess, in amongst the comforter.

16 Q. Did you look in the garage?

17 A. Yes.

18 Q. Did you notice anything noteworthy in the garage?

19 A. I searched, again, the west side of the garage
20 along the west wall. Detective Parga searched along the

21 east wall. The garage was almost split in half with half

22 of it being clear enough to park the 4-Runner in, and,

23 in fact, the 4-Runner was parked in the garage. The other

24 half, the west side, west half of the garage, was piled up

25 with a lot of things laying on the floor. And so —

26 Q. The 4-Runner was in the garage?

27 A. The 4-Runner was in the garage.

28 Q. What condition was the 4-Runner in?

Page 204

1 A. The 4-Runner was very clean on the outside.

2 Appeared that it had just been washed.

3 Q. Did you eventually see where the 4-Runner had

4 been kept that weekend while he was driving around in his

5 motorhome?

6 A. Yes, I did.

7 Q. Describe that area where the SUV was kept.

8 A. The area where the SUV was kept is — it’s almost

9 on top of a mountain. The address itself, the house

10 itself, sits below the road level. The motorhome — there

11 was a second motorhome which belonged to the

12 property owner, and Mr. Westerfield’s white trailer which

13 contained his dune buggy and two quads were all parked on

14 the upper level street area. They were actually parked off

15 the paved road, and it was a dirt and wood chip area. And

16 that’s same area that the 4-Runner had been parked over the

17 weekend.

18 Q. Did he tell you when he’d washed the SUV after he

19 picked it up up there?

20 A. He did not mention washing it after he picked it

21 up.

22 Q. Did you notice — or were there any other signs

23 in the garage that seemed out of order or unusual?

24 A. Detective Parga had mentioned a bleach smell in

25 the garage around the — around the area the 4-Runner was

26 parked.

27 Q. Did you find Danielle?

28 A. No.

Page 205

1 Q. Did you look for trace evidence?

2 A. At the time, you know, we really weren’t sure

3 what we were looking for. We were, obviously, looking for

4 Danielle or anything physical that would indicate that

5 Danielle had been there, such as the pajamas she was

6 wearing or necklace she was wearing, anything like that.

7 Q. Mr. Westerfield’s bedroom, the master bedroom,

8 where is that positioned in the house?

9 A. It’s positioned upstairs. As you walk up the

10 stairs, as you get to the top of the stairs, you go to the

11 left. There are, I believe, two bedrooms. One is made

12 into an office and one is the one that he identified as his

13 son’s bedroom, and then to the right, if memory serves me,

14 is the master bedroom and master bathroom.

15 Q. To the front or the rear of the house?

16 A. Would have been to the front of the — the front

17 of the house, I believe. I can’t be sure.

18 Q. If you look out his windows, what are you looking

19 at, his bedroom windows?

20 A. You know, I don’t remember because I never walked

21 to his windows and looked out when I was upstairs.

22 Q. All right.

23 A. Actually I take that back. I did walk to the

24 window in the office, and it looked out to the front. So

25 his bedroom would have looked out to the rear, I believe.

26 Q. Rear yard?

27 A. Rear yard.

28 Q. How long would you say your walk-through of his

Page 206

1 house took?

2 A. 10 minutes at most, I think.

3 Q. Then what did you do?

4 A. Once we finished walking through his house, we

5 asked Mr. Westerfield if he would take us to where his

6 motorhome was parked, and he agreed to do so.

7 Q. Did you threaten him or coerce him?

8 A. No.

9 Q. How did you ask him?

10 A. I just asked him where’s your motorhome parked,

11 and he told me where it was parked, and I said would you be

12 willing to take us up there so we can take a look at it,

13 and he said sure.

14 Q. How did you get up there?
15 A. I drove my vehicle. Actually detective Parga

16 rode with me in my vehicle. Mr. Westerfield drove his own

17 vehicle by himself, and we followed him up.

18 Q. He didn’t have any police officers in the car?

19 A. No.

20 Q. Where did you go?

21 A. We drove through Poway to 15250 Sky Ridge road.

22 Q. When you got there, did you examine any of his

23 property there?

24 A. Yes.

25 Q. What?

26 A. First, his motorhome. The motorhome itself

27 has several, I don’t know how many, but several

28 compartments along the lower portion of the driver’s side

Page 207

1 of the motorhome that open from the exterior of the

2 vehicle. Each —

3 Q. Before you go any further, did you ask if it

4 would be okay to search the motorhome?

5 A. Yes. And he had given, again, his written

6 permission to search his motorhome.

7 Q. Describe what you did.

8 A. We started by looking through the exterior

9 compartments of the — along the driver’s side of the

10 motorhome. Again, there were several, and I don’t know how

11 many by count, but I started at the front of the motorhome

12 and worked my way towards the rear, and detective Parga

13 started at the rear of the motorhome and worked her way

14 towards the front. And just before we met in the middle,

15 I think I searched maybe four compartments. And then I

16 stepped back away from the motorhome.

17 Just after I did, detective Parga stepped back

18 and we, neither one, had searched the center compartment,

19 which was much smaller than the other compartments, and

20 Mr. Westerfield pointed out that we had not searched it and

21 suggested that we do so.

22 Q. Did you?

23 A. Yes.

24 Q. Find Danielle?

25 A. No.

26 Q. Did you look inside the motorhome?

27 A. Yes.

28 Q. What did you see?

Page 208

1 A. The motorhome appeared to be fairly clean inside.

2 Again, the only thing that I noticed in the motorhome

3 itself that I wouldn’t have termed as clean or within its

4 place was the bed in the back of the motorhome. It was

5 unmade. It did have sheets on it, but no comforter.

6 Q. Did you ever find the comforter for that one?

7 A. No.

8 Q. How long would you say your look through the

9 motorhome was?

10 A. We were in the motorhome for approximately

11 10 minutes. And then from the motorhome we took a look in

12 the trailer that he carries his dune buggy and his quads

13 in.

14 Q. Did you find anything there?

15 A. No.

16 Q. Find Danielle?

17 A. No.

18 Q. What did you do then?

19 A. At that point we thanked him for his cooperation

20 and we all left at the same time, including

21 Mr. Westerfield. As we reached the corner of Twin Peaks

22 and Espola, Mr. Westerfield continued on I believe it would

23 be south, and we turned west on Twin Peaks.

24 Q. Where did you go?

25 A. We went back to the command post at the

26 northeastern substation.

27 Q. Did you return to Mr. Westerfield’s home later

28 that day?

Page 209

1 A. Yes.

2 Q. Why?

3 A. We returned to ask him if he would be willing to

4 accompany us back to the northeastern substation to take a

5 polygraph test.

6 MR. BOYCE: Objection, Your Honor. Move to

7 strike, inadmissible, and I’ve got a motion.

8 THE COURT: Yes. Counsel, I don’t want to hear

9 anything about a polygraph test.

10 BY MR. DUSEK:

11 Q. At the second time —

12 THE COURT: So the answer is stricken.

13 MR. DUSEK: Certainly, Your Honor.

14 Q. That second time back, did you go back to contact

15 about a dog search?

16 A. Yes. I’m sorry. We did.

17 Q. That’s the reason for going back on the

18 second occasion?

19 A. Correct. The dogs the previous day, the

20 Sheriff’s search and rescue, had gone through each of the

21 homes in the neighborhood with the dogs where people were

22 home. Again, on Monday, we met Mr. Westerfield back at his

23 house, and the Sheriff’s search and rescue met us there and

24 they took two dogs through his house.

25 Q. Did you go into that house with the dogs?

26 A. No.

27 Q. Did you see whether or not they reacted or not

28 inside that house?

Page 210

1 A. No, I did not.

2 Q. While you were with Mr. Westerfield, did you get

3 a chance to examine at least what was visible on his skin?

4 A. Yes.

5 Q. Did you notice anything on his hands or wrists or

6 forearms?

7 A. Yes, I did.

8 Q. What?

9 A. He had numerous small scratches. A lot of them

10 were on his left, the top of his left, the back of his left

11 hand, his left arm, inside his — just above his wrist on

12 his inner forearm. And he also pointed out a scratch to me

13 on the top of his right leg above his ankle.

14 MR. DUSEK: Your Honor, I’ve had marked as

15 People’s exhibit 3 this photo display board. Appears to

16 have two photographs labeled A and B.

17 Q. Do you see those, detective?

18 A. Yes, I do.

19 Q. What do they show?

20 A. They show the scratches that I saw on

21 Mr. Westerfield’s hand and arm on that day, on Monday

22 evening when we —

23 Q. Photograph A appears to be a longer view showing

24 the hand, halfway up the forearm?

25 A. Yes.

26 Q. Photograph B shows a close-up view of the

27 scratches you’re talking about?

28 A. Yes.

Page 211

1 Q. How many?

2 A. There are on the — in photograph A, I see

3 approximately eight small scratches on the back of his hand

4 and what appear to be five scratches, almost in a half moon

5 shape on his — just above his wrist.

6 Q. Those five half moon scratches appear to be a

7 close-up view in photograph B; is that correct?

8 A. That’s correct.

9 Q. Is that how they appeared when you saw them?

10 A. Yes.

11 MR. DUSEK: Thank you. Nothing further.

12 THE COURT: I have a question. When were those

13 photographs taken?

14 THE WITNESS: I did not take those photographs.

15 I don’t know, Your Honor.

16 THE COURT: But does that represent what you saw

17 that day?

18 THE WITNESS: They do. Only the photograph A,

19 the scratches on the back side of his hand, when I saw

20 them, they appeared a little more pronounced.

21 In other words, these photos they appear a little cleaner.

22 THE COURT: Did you see them the first time or

23 the second time or both times you went out there that day?

24 THE WITNESS: I noticed them in the morning when

25 we were talking, but we did not discuss them then. It

26 wasn’t until later that evening when I again spoke with

27 Mr. Westerfield that we talked about the scratches. And

28 he — in fact, he even pulled up his pants leg and showed

Page 212

1 me a scratch on his right leg.

2 And photograph A, it’s not depicted, but on the

3 underneath side he showed me about a two-inch scratch just

4 above his watch band.

5 THE COURT: Okay. Thank you.

6 Counsel?

7 MR. BOYCE: Thank you, Your Honor.

8

9 CROSS-EXAMINATION

10 BY MR. BOYCE:

11 Q. Referring to the photograph, you see six

12 indentations, don’t you?

13 A. Which photograph are you speaking of?

14 Q. I think photograph A.

15 A. I see five on the upper wrist and six or seven on

16 the back side of the hand.

17 Q. And on exhibit B, do you see — at least from

18 here I can see what appears to be a — looks almost like a

19 chain dragged across the arm.

20 A. I guess that’s a fair way of describing it, yes.

21 Q. And Mr. Westerfield told you that these scratches

22 he suffered when he was attempting to dig his motorhome out

23 of the desert, correct?

24 A. That’s correct.

25 Q. Who called you to the scene on February 4th or to

26 Mr. Westerfield’s home February 4th?

27 A. To Mr. Westerfield’s home on February 4th?

28 I believe Sergeant John Ray advised Sergeant Judy woods

Page 213

1 that Mr. Westerfield was home, and Sergeant Woods asked me

2 if I would go — asked myself and detective Parga to go

3 talk with him.

4 Q. Was this a telephone call or was this through a

5 tac frequency?

6 A. It was via the radio.

7 Q. Is that a radio that’s recorded, to your

8 knowledge?

9 A. I believe most operational frequencies on our

10 radio are recorded.

11 Q. You’ve seen some records in this case, correct?

12 A. I have.

13 Q. How many reports have you done to date?

14 A. Approximately five or six.

15 Q. Now, when you first contacted Mr. Westerfield,

16 that was in the driveway, correct?

17 A. Correct. When I first got there, I walked up to

18 the driveway, and Sergeant Ray introduced me to

19 Mr. Westerfield and introduced Westerfield to me.

20 Q. And how long did you remain in the driveway with

21 Mr. Westerfield?

22 A. Probably no more than a minute.

23 Q. Where did you go from the driveway with

24 Mr. Westerfield?

25 A. We walked up the walkway towards his front door

26 and stood, again, approximately two feet from his

27 front porch.

28 Q. How long did you stand there?

Page 214

1 A. We were there for approximately 20 to 30 minutes

2 talking.

3 Q. When you say we, who are you referring to?

4 A. Myself, Mr. Westerfield and detective Parga.

5 Q. Where did you go from standing in front of the

6 front door with Mr. Westerfield?

7 A. Once we had finished talking to him, he had

8 signed the consent to search, and then he allowed us to go

9 inside his house.

10 Q. Did he agree to allow the dogs to search the

11 house?

12 A. The dogs weren’t there at that point, but we did

13 mention to him that we’d like dogs to go through his house,

14 and he had no objections whatsoever.

15 Q. Is this mentioned anywhere in the

16 consent-to-search form, that the dogs would search the

17 house?

18 A. No.

19 Q. Once you were in the house, how long did you stay

20 in the house with Mr. Westerfield this time?

21 A. Oh, this was the only time I was in the house,

22 and I believe I was in there no more than 10 minutes or so.

23 Q. Where did you go after you left the house with

24 Mr. Westerfield?

25 A. He then escorted us to High Valley to where his

26 motorhome was parked.

27 Q. I believe you told us that Mr. Westerfield went

28 in his SUV; is that correct?

Page 215

1 A. That’s correct. He drove his 4-Runner.

2 Q. And you drove your car with detective Parga; is

3 that correct?

4 A. That’s correct.

5 Q. Were there any other officers following you, to

6 your knowledge?

7 A. Yes. Sergeant Ray, detective Morris and

8 detective Stetson all followed us up there to High Valley.

9 Q. Were they in separate cars or in one car?

10 A. I believe they were each in their own cars.

11 Q. Were these plain unmarked police vehicles?

12 A. Yes.

13 Q. Were there any black-and-white vehicles that

14 followed you?

15 A. No.

16 Q. Were there any other officers besides the ones

17 that you’ve mentioned that followed you to the location of

18 the motorhome?

19 A. Not to my knowledge, no.

20 Q. Once you arrived at the motorhome, how long were

21 you at that location?

22 A. We were at the location itself for probably 20,

23 25 minutes.

24 Q. And while you were there, it’s your testimony

25 that at no time was Mr. Westerfield detained; is that

26 correct?

27 A. That’s absolutely correct.

28 Q. After — you left the motorhome at some point; is

Page 216

1 that correct?

2 A. That’s correct.

3 Q. Where did you go with Mr. Westerfield after you

4 left the motorhome?

5 A. When we left the motorhome, he went his way, we

6 went our way. And I believe at some point we were advised

7 that the Sheriff’s search and rescue would be at his house.

8 So we returned to his house, and he returned shortly

9 thereafter and gave the Sheriff’s search and rescue

10 permission to go inside.

11 Q. Approximately what time was that?

12 A. I believe it was right around 12:00 or 12:15 in

13 the afternoon. I know originally they were supposed to be

14 there earlier, and then they called back and gave an

15 estimate of around noon before they could get there.

16 Q. Where were you when they went into the house at

17 this time?

18 A. I was standing out on the sidewalk in the

19 driveway area.

20 Q. Mr. Westerfield was inside?

21 A. I would assume so. I didn’t pay any attention to

22 where he was at that particular point.

23 Q. And I assume detective Parga was with you at that

24 time, too?

25 A. I believe she was outside, also.

26 Q. Who else was outside with you?

27 A. There was a lot of news media around, cameras set

28 up on the driveway — or not driveway so much, but all

Page 217

1 around the sidewalk area. I don’t recall any other

2 detectives being there. That’s not to say they weren’t

3 there. I just don’t recall, you know, who was.

4 Q. At some point did Mr. Westerfield come out of the

5 house?

6 A. At some point, yes, he did.

7 Q. Where did you go with Mr. Westerfield when he

8 came out of the house?

9 A. I did not go anywhere with Mr. Westerfield

10 once — once the dogs finished searching his house, we left

11 his house and we left him there.

12 Q. When did you next have contact with

13 Mr. Westerfield?

14 A. Probably around 3:30 Monday afternoon.

15 Q. That was about three hours later after the dogs

16 finished searching?

17 A. I would guess about that.

18 Q. Did you go with Mr. Westerfield somewhere at

19 3:30?

20 A. Yes.

21 Q. And where did you go with Mr. Westerfield? Was

22 this to the Sheriff’s —

23 A. To the northeastern San Diego police substation.

24 Q. Did Mr. Westerfield go in your car with you to

25 the station?

26 A. No. He drove his own vehicle.

27 Q. And you were with detective Parga; is that

28 correct?

Page 218

1 A. That’s correct.

2 Q. By the way, is detective Parga known as Mo?

3 A. Yes.

4 Q. You and detective Parga were in a car together;

5 is that correct?

6 A. Yes.

7 Q. Did anyone else follow you and detective Parga to

8 the station?

9 A. No.

10 Q. No other officers or detectives?

11 A. No. When we went to his house at 3:30 in the

12 afternoon, we went by ourselves.

13 Q. Once you got to the substation, he was

14 interviewed by other police officers; is that correct,

15 Mr. Westerfield was?

16 A. That’s correct.

17 Q. One of those officers was Mr. Redden; is that

18 correct?

19 A. No. Mr. Redden is not a police officer. He runs

20 the lab.

21 Q. I understand, but he was interviewed by

22 Mr. Redden; is that correct?

23 A. That’s correct.

24 Q. And what other — where was Mr. Westerfield when

25 he arrived at the police station? What room was he in?

26 A. He was in a small room I guess that’s used for

27 interviews in the detective’s area of the police

28 substation.

Page 219

1 Q. Were you there while — well, how long — when

2 you entered the substation, did you lead him to this room?
3 MR. DUSEK: Objection. This is beyond the

4 scope.

5 THE COURT: Yes. Counsel, this is far beyond the

6 scope.

7 MR. BOYCE: I believe on direct we went over

8 everywhere Mr. Westerfield went that day.

9 THE COURT: I don’t remember any conversation

10 about what happened when he went back to the

11 police station, do you? I don’t. I could be wrong.

12 BY MR. BOYCE:

13 Q. How long were you at the police station?

14 MR. DUSEK: Objection. Beyond the scope.

15 THE COURT: I’ll let him ask that question, but

16 that’s about as far as we’re going to go.

17 THE WITNESS: From the time that Mr. Westerfield

18 followed us back there at 3:30, I’d say for several hours

19 after that until, I don’t know, until 11:15, 11:30,

20 somewhere around there.

21 BY MR. BOYCE:

22 Q. 11:30 at night?

23 A. Yes.

24 Q. Were you present when Mr. Westerfield left the

25 police station?

26 A. I was within the confines of the substation, but

27 I did not see him walk out and leave, no.

28 Q. Were you with Mr. Westerfield the entire time

Page 220

1 that he was in the police station?

2 MR. DUSEK: Objection. Irrelevant. Beyond the

3 scope.

4 THE COURT: Counsel, it’s beyond the scope. I’m

5 allowing you a little latitude so we don’t have to bring

6 this officer back, but I don’t want to get into what

7 happened, if anything happened, at the police station.

8 Because it’s beyond the scope.

9 MR. BOYCE: All right. Thank you, Your Honor.

10 Q. Up until 11:30 then, Mr. Westerfield was — at no

11 time was he detained; is that correct?

12 A. At no time was he detained.

13 Q. And he was always free to leave at any time; is

14 that right?

15 MR. DUSEK: Objection. Beyond the scope.

16 THE COURT: Sustained.

17 BY MR. BOYCE:

18 Q. You stated that in your conversations with

19 Mr. Westerfield that he took the back way, not the freeway,

20 to Borrego; is that correct?

21 A. That’s the term he used, yes.

22 Q. Did you ask him why he didn’t take the freeway?

23 A. No. I’m not real familiar with the desert area.

24 So I would have no clue which is faster. So it didn’t

25 really, you know, make any difference to me.

26 Q. Did you — and when he went to the silver strand,

27 you said he didn’t take interstate 8; is that correct?

28 A. Which time?

Page 221

1 Q. After leaving Borrego.

2 A. Correct. He said that he went back around the

3 mountain to avoid Julian, went through Warner Springs and

4 back through Escondido, and then came down 15 to the

5 strand. At no time did he mention being anywhere near

6 interstate 8.

7 Q. Did you ask him why he didn’t take interstate 8?

8 A. No. Again, I’m not familiar with the most

9 prudent routes to get there. So I didn’t ask him.

10 THE COURT: How much longer do you have with this

11 witness?

12 MR. BOYCE: I’ve got about 15, 20 minutes, Your

13 Honor.

14 THE COURT: I’ve got staff I’ve got to worry

15 about.

16 MR. BOYCE: That’s fine.

17 THE COURT: If I didn’t have that, we’d go all

18 night, but I don’t want to pay overtime. I don’t think the

19 county does either.

20 MR. BOYCE: I understand.

21 THE COURT: We’re in recess. Remember my

22 admonition, sir. Until 9:00 in the morning. Thank you.

23

24 (Evening recess.)

25

26

27

28