4 – March 12, 2002 Afternoon – Transcript of David Westerfield preliminary hearing

PRELIMINARY HEARING SAN DIEGO, CALIFORNIA, Tuesday, March 12, 2002, 1:44 PM


WITNESSES:
Sean Soriano (assistant criminalist),
Dorie Savage (forensic specialist),
Annette Lynn Peer (forensic biology),
Jeffrey Graham (police crime laboratory)


1

2

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

4

5 THE COURT: Okay. We’re back. Here we go. Next

6 witness?

7 MR. CLARKE: Yes. Sean Soriano.

8 THE COURT: All right. Good afternoon. Raise

9 your right hand.

10

11 Sean Soriano,

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

13 having been first duly sworn, testified as follows:

14

15 THE COURT: Please take the stand, sir.

16 Tell us your name, please.

17 THE WITNESS: Sean Soriano.

18 THE COURT: Spell it for us, please.

19 THE WITNESS: S-E-A-N, S-O-R-I-A-N-O.

20 THE COURT: Thank you.

21 MR. CLARKE: Thank you, Your Honor.

22

23 DIRECT EXAMINATION

24 BY MR. CLARKE:

25 Q. Mr. Soriano, what is your occupation?

26 A. I’m an assistant criminalist.

27 Q. Employed by whom?

28 A. For the San Diego Police Department crime

Page 356

1 laboratory.

2 Q. How long have you been in that position, that is

3 employed by the San Diego Police Department?

4 A. Approximately over three years.

5 Q. What is your assignment at the police department

6 as an assistant criminalist?

7 A. My primary job is to examine items of evidence

8 for the presence of biological material. That biological

9 material may include blood, semen and/or saliva.

10 Q. Could you describe for the court, please, if you

11 would, your education, training and experience that’s led

12 to your position as an assistant criminalist with the

13 police department?

14 A. I have a bachelor of science degree in biology

15 from San Diego state university. I have taken courses at

16 the California — excuse me — I’ve taken courses at the

17 California criminalistics institute related to forensic

18 biology. I’ve attended workshops and seminars sponsored by

19 the California association of criminalists. And I have

20 participated in a rigorous training outline, involved the

21 examination of blood evidence, as well as sexual assault.

22 Q. California criminalistics institute, is that an

23 organization that is part of the California department of

24 justice?

25 A. That is correct.

26 Q. Do they provide training for individuals such as

27 yourself in the area of biological evidence and its

28 identification?

Page 357

1 A. Yes, they do.

2 Q. Are there methods to detect the presence of blood

3 stains?

4 A. There is — or there are.

5 Q. Are those methods that you’re familiar with both

6 as a result of your training and their use in actual

7 case work?

8 A. Yes.

9 Q. I’d like to turn your attention if I could to the

10 investigation of the disappearance of a young girl named

11 Danielle Van Dam, and ask if you were involved in any

12 manner in that particular investigation?

13 A. Yes, I am.

14 Q. In particular, did you have occasion to receive a

15 jacket that was identified to you as having been seized

16 from a cleaners in the Poway area for purposes of screening

17 by you for the presence of any biological material?

18 A. Yes.

19 Q. In particular — and could you tell us, first of

20 all, how did you receive that particular jacket?

21 A. This jacket was received inside an extra large

22 brown paper bag that was sealed from Karen Lealcala,

23 forensic specialist at the San Diego Police Department

24 crime laboratory.

25 Q. Did it have a particular item number?

26 A. At the time, no.

27 Q. Did you assign it an item number?

28 A. No, I did not.

Page 358

1 Q. Was an item number assigned to that particular

2 item at some point?

3 MR. FELDMAN: Foundation. Objection.

4 THE COURT: Overruled.

5 THE WITNESS: Yes.

6 BY MR. CLARKE:

7 Q. What was that number?

8 A. Item 94.

9 Q. And that is an item number from a list of items

10 seized in this particular case involving the disappearance

11 of Danielle Van Dam?

12 A. One of many.

13 Q. I’m sorry?

14 A. One of many.

15 Q. When you say many, you mean many different items?

16 A. Correct.

17 Q. This particular jacket, I believe you said you

18 first received it in a paper bag; is that correct?

19 A. An extra large brown paper bag that was sealed.

20 Q. Who did you receive it from?

21 A. Karen Lealcala.

22 Q. Once you received it, did you then conduct an

23 examination of it?

24 A. Yes.

25 Q. Could you tell us what you did?

26 A. The first thing I did was clean my examination

27 area. Laid out a clean paper, white examination paper, and

28 then began to inventory the items that were inside that

Page 359

1 extra large sealed brown paper bag. And one of those items

2 was the jacket, which was then labeled as item 94-D.

3 Q. D as in David?

4 A. Correct.

5 Q. Did you label the other items that were contained

6 in that paper bag with different letters?

7 A. Correct.

8 Q. That were all subletters of item number 94?

9 A. Correct.

10 Q. In looking at the jacket — and did you conduct

11 an examination of the jacket itself?

12 A. Yes, I did.

13 Q. What, if anything, did you discover?

14 A. I noted discoloration on the jacket.

15 Q. Can you describe a little more what you mean?

16 A. I noted discoloration that were stains.

17 Q. All right. First of all, the jacket itself, can

18 you describe it for us, please?

19 A. It is a green and blue jacket, predominantly

20 green. Blue on the neck, collar and some of the back areas

21 of the jacket, along with some zipper buttons, as well as

22 an orange inside area.

23 Q. In other words, when you say orange inside, that

24 is the lining area?

25 A. Yes. The lining of the inside of the jacket was

26 orange.

27 Q. Now, let’s talk about the stains that you said

28 that you observed. Could you describe for us each one,

Page 360

1 please?

2 A. What I noted was an off-white stain. I also

3 noted two dark green stains. And I also noted an apparent

4 reddish brown stain, as well as other light reddish brown

5 stains.

6 Q. Did you take any — and this was as a result of a

7 visual investigation by you?

8 A. Correct.

9 Q. What steps did you take with regard to those

10 stains that you observed with your eyes?

11 A. Of course, documenting them, noting the color and

12 the approximate size of those stains that are — in

13 particular for the blood-like appearance.

14 Q. What did you do at that point?

15 A. After performing a visual examination, I then

16 conducted chemical presumptive tests for blood.

17 Q. Are these tests that you have been trained and

18 have used in case work that determine whether or not

19 particular items that you actually apply this test to are,

20 in fact, blood or may be blood?

21 A. Correct.

22 Q. What were the results of your use of this

23 particular test?

24 A. The stains that I tested, one apparent

25 reddish brown stain and three light reddish brown stains,

26 the apparent reddish brown stain was — tested

27 presumptively positive for blood, and the other two

28 light reddish brown stains tested positive presumptively

Page 361

1 for blood, and the other light reddish brown stain tested

2 negative for the presumptive test for blood.

3 Q. So there were a total of how many that tested

4 positively, that is presumptively for presence of blood?

5 A. Three.

6 Q. Now, in particular, could you describe — what

7 I’d like you to do — well, first of all, when you identify

8 an item that’s presumptively positive for blood staining,

9 and in particular in this case on the jacket, what did you

10 do with those three areas?

11 A. I’m sorry. Could you repeat the question?

12 Q. Sure. After you determined that there were

13 positive presumptive results for the presence of blood in

14 the three areas that you described, what steps did you then

15 take?

16 A. Then after observing and making the

17 documentation, I also made a photograph of them, and then

18 with clean scissors, individual scissors, those stains were

19 cut out, placed into clean paper bindles, and then to a

20 clean envelope, all individual, each labeled, and then

21 packaged all into a freezer packet that was labeled, each

22 labeled.

23 Q. I was just going to say did you label each of

24 these items as to the particular, for example, locations

25 that you cut them out from?

26 A. Correct.

27 Q. I believe you said you used sub-lettering; is

28 that correct?

Page 362

1 A. That is correct.

2 Q. I’d like you to describe if you would the

3 locations that those three items that you determined were

4 presumptively positive for blood and then cut out of the

5 jacket, could you tell us what you labeled them in terms of

6 their letters and numbers and where each came from?

7 A. The apparent reddish brown stain that tested

8 positive for blood, presumptively for blood, excuse me, was

9 found on the front outside middle lapel area of the jacket.

10 The two light reddish brown stains — pardon me.

11 If I could back up?

12 The apparent reddish brown stain found on the

13 front outside middle right lapel area was labeled as

14 94-D-1.

15 The next stain, the light reddish brown stain

16 labeled as 94-D-2, was also packaged.

17 The next light reddish brown stain, 94-3, was

18 also packaged, as well.

19 Q. I’m sorry. Did you give the locations as to

20 those last two?

21 A. I’m sorry. The 94-2 was located on the front

22 right outside area near the shoulder of the jacket.

23 94-3 was located in the — behind the neck collar

24 on the outside.

25 Q. I’d like to focus your attention back to 94-D-2.

26 You’ve described that as on the right shoulder area; is

27 that correct?

28 A. Front right outside area near the shoulder.

Page 363

1 Q. All right. I’m going to ask you if you would,

2 Mr. Soriano, could you point to approximately that location

3 on your own jacket that you’re wearing today where you

4 located 94-D-2 on the green jacket that you examined?

5 THE COURT: The record should reflect it’s

6 consistent with his description.

7 MR. CLARKE: Very good. Thank you, Your Honor.

8 Q. Once you packaged these three items that you had

9 cut out from the locations that you’ve described, what did

10 you do with those particular samplings?

11 A. After they were packaged in their appropriate

12 individual paper bindles and envelopes, each labeled, along

13 with their substrate controls, they were then packaged into

14 a freezer packet that was labeled.

15 Q. Let’s go back if we could. You mentioned the

16 substrate control. What is that?

17 A. A substrate control is basically to test an item

18 or fabric to make sure that the chemical presumptive test

19 is not giving a false positive.

20 Q. What do you mean by that?

21 A. Meaning a positive result is given by a substance

22 other than blood, the chemical presumptive test for blood.

23 Q. Are you using these substrate controls to allow a

24 later analyst to determine if the jacket itself has

25 something in it, as opposed to the blood staining,

26 providing any later genetic information?

27 A. That is correct.

28 Q. Did you take these substrate controls from areas

Page 364

1 immediately adjacent to each of the stains?

2 A. Yes, I did.

3 MR. CLARKE: Thank you. I have no further

4 questions, Your Honor.

5 THE COURT: Your witness.

6

7 CROSS-EXAMINATION

8 BY MR. FELDMAN:

9 Q. Sir, did you prepare reports reflecting your

10 activity?

11 A. No, I did not, sir.

12 Q. Did you take any notes of any kind?

13 A. Yes, I did, sir.

14 Q. You got them with you?

15 A. I have a copy of those.

16 MR. FELDMAN: May I approach?

17 THE COURT: You have not been provided with them?

18 MR. FELDMAN: No.

19 THE COURT: All right.

20 MR. FELDMAN: At least not to my knowledge.

21 MR. CLARKE: Your Honor, if I could explain in

22 that regard? The witness has explained to me he does have

23 those notes with him. They have not been provided to our

24 office as yet. They have not been through the final review

25 within the police department.

26 Now, that’s only of significance because that is

27 a part of the police department’s accreditation, and absent

28 review, accreditation is jeopardized by providing those

Page 365

1 early.

2 THE COURT: Well, that may or may not be, but I

3 have someone who is here charged with a very serious crime,

4 and accreditation comes second, as far as I’m concerned.

5 MR. CLARKE: I understand that, Your Honor.

6 THE COURT: Not that I’m making light of

7 accreditation, but I’m worried about constitutional rights,

8 which I think are a little higher than accreditation.

9 So I would suggest both of you take the

10 opportunity to look at this gentleman’s notes, okay?

11 MR. CLARKE: Very good. Thank you.

12 MR. FELDMAN: Thank you.

13 THE COURT: Off the record. At least we’re not

14 going to talk until we get back on.

15

16 (Discussion off record.)

17

18 THE COURT: Okay?

19 MR. FELDMAN: No. Not quite.

20 THE COURT: Take your time.

21 MR. FELDMAN: Thank you very much.

22 MR. FELDMAN: Now ready to proceed, Your Honor.

23 THE COURT: All right. Please proceed.

24 MR. FELDMAN: Your Honor, for the record, the

25 court has given me the opportunity to review the documents,

26 and with counsel I have done so. There are 54 pages of

27 material that this witness has. At this time I’d ask that

28 all of it be marked as defendant’s exhibit next in order.

Page 366

1 I don’t care whether it’s F, G, H, I and J, or whatever

2 manner. I think it important that he obtain this, and then

3 I move for a continuance to permit me to review the

4 documents so that I can adequately cross-examine the

5 witness.

6 THE COURT: What does the — what do the people

7 have to say?

8 MR. CLARKE: Your Honor, I certainly don’t have

9 an objection to Mr. Feldman reviewing them. This is,

10 at least I think scientifically, this is not very

11 complicated in terms of the direct examination that I’ve

12 presented. Certainly Mr. Soriano’s worked on a number of

13 items. However, I have focused, frankly, on one item.

14 MR. FELDMAN: Well, maybe —

15 MR. CLARKE: I think certainly Mr. Feldman should

16 have the opportunity to review that, but I suspect that

17 that involves a fraction of the materials that exist.

18 MR. FELDMAN: If I could just have a moment with

19 counsel?

20

21 (Discussion off record.)

22

23 MR. FELDMAN: It may remedy, at least for the

24 moment, the issue if counsel — I’ve just spoken with

25 counsel, who’s indicated to me he can identify the specific

26 papers that the witness — that relate specifically to the

27 scope of his direct examination. That would be

28 satisfactory, as long as I get a chance to review the

Page 367

1 document.

2 THE COURT: Let’s do that. You know, his

3 testimony was rather limited. So let’s try to do that.

4 Can you do that, counsel?

5 MR. CLARKE: I’ll try. Certainly the witness can

6 direct us to the right part.

7 MR. FELDMAN: That’s no problem, but I would like

8 the stack, all of it, marked as a defense exhibit so that

9 we retain in this condition those documents.

10 THE COURT: Well, we’ll mark it. Whether I’m

11 going to receive it or not is a different story.

12 MR. FELDMAN: But it becomes within the

13 jurisdiction of the court once marked. That’s all I

14 want.

15 THE COURT: I understand that. I understand

16 that.

17 All right. How much time do you need to — why

18 don’t you come up here and talk to the witness. He’ll

19 point it out to you off the record.

20

21 (Discussion off record.)

22

23 THE COURT: All right. We’re back on the

24 record.

25 MR. FELDMAN: Thank you for giving me the

26 opportunity to review the documents.

27 My request remains. And I’ve spoken with

28 counsel. I’d ask to have the entire packet marked as

Page 368

1 defense next in order. It, at least on my count, is

2 54 pages.

3 THE COURT: Any objection to marking it, counsel?

4 MR. CLARKE: No, Your Honor. Just the comments I

5 made previously.

6 THE COURT: All right.

7 MR. FELDMAN: That would be F?

8 THE CLERK: Yes.

9 MR. FELDMAN: If I may approach, please?

10 THE COURT: Of course.

11 BY MR. FELDMAN:

12 Q. Sir, you’ve got a binder clip, it appears a

13 binder clip on all of your notes. I just want to be sure

14 you put them — would you please put them in the sequence

15 that you had them in before we looked at them?

16 For the record, Your Honor, I’m placing an

17 evidence label in a blank space.

18 Q. Sir, do you agree it’s blank where I’m putting

19 it?

20 A. Yes.

21 THE COURT: Mr. Soriano’s identified the pages of

22 that document that relate to his testimony?

23 MR. FELDMAN: He has, Your Honor.

24 THE COURT: All right. Good. Go ahead.

25 MR. FELDMAN: With the court’s permission, I need

26 to stand here or remove the documents from the witness so I

27 can address chain.

28 THE COURT: Stand right where you are.

Page 369

1 Q. Sir, you identified a chain of custody document

2 in this package; is that correct?

3 A. That is correct.

4 Q. You’ve opened the packet up and you’ve now

5 exposed that San Diego Police Department forensic science

6 section evidence chain of custody document; is that

7 correct?

8 A. That is correct.

9 Q. There appears to be columns which reflect

10 property tag, item, condition of item, date received, and

11 from, and date returned; is that correct?

12 A. That is correct.

13 Q. We note that it appears to have been received,

14 sealed on 2-8-02 from Ms. Lealcala; is that correct?

15 A. That is correct.

16 Q. And then it indicates, it says it was received,

17 and then very next line over, it says date returned to, and

18 it says 3-6-02, Lealcala?

19 A. That is correct.

20 Q. Is it normal to receive and return? Is that the

21 standard operating procedure?

22 A. With evidence, yes.

23 Q. Was there some qualification in your answer?

24 A. This was done by an internal chain of custody,

25 another form, another piece of paper when different units

26 of the laboratory is given in evidence, that paper is

27 signed along with my chain of custody.

28 Q. So are you saying there’s other documentation

Page 370

1 with regard to this material?

2 A. The internal chain of custody papers, sir.

3 Q. And are those in any manner — let me withdraw

4 that and ask you this: Is there some system, some

5 computerized system that allows you to track the progress

6 of particular pieces of evidence as they wend their way

7 through your forensic science section?

8 A. Could you rephrase the question, sir?

9 Q. Is this evidence list in any manner computerized

10 or tracked so that we can look at a single piece of paper

11 or a computer printout that will tell us everything that

12 happened to this particular jacket, the date, who did it to

13 it, and where?

14 A. I’m not aware of a computer program or computer

15 receipt that takes that.

16 Q. How about any form of internal documentation?

17 A. Yes.

18 Q. And is that the internal chain of custody

19 document to which you’ve just referred?

20 A. Yes, sir.

21 Q. Okay. So it’s another document that’s not

22 contained within this list — I’m sorry — this packet?

23 A. It is, sir. May I point to it?

24 Q. Please. And, again, you’re referring to

25 defendant’s exhibit F?

26 A. Correct.

27 Sir, internal chain of custody form.

28 Q. Now, this particular document indicates that on a

Page 371

1 particular date Ms. Lealcala released to you an evidence

2 item with an identification number 8073; is that correct?

3 A. That is my I.D. number, sir.

4 Q. That’s your I.D. And it’s tough to read, but

5 this is the receipt — or is this the document that

6 reflects the transfer to you from Ms. Lealcala of the

7 jacket?

8 A. That refers to the description, her description

9 of what was given to me.

10 Q. Then it indicates that it was received by

11 Ms. Lealcala, or is this a different item?

12 A. This is the same item. This particular row that

13 you’re referring to is when she actually received the item

14 of evidence back.

15 Q. All right. But this doesn’t reflect what

16 happened to the jacket, does it?

17 A. It just reflects the chain of custody.

18 Q. And you’re aware the chain of custody is

19 important to preserve to insure that there’s no damage done

20 or there’s nothing done to affect the integrity of a

21 particular piece of evidence; is that correct?

22 A. That is correct.

23 Q. Where’s the document — what I’m trying to find

24 is the document that documents, demonstrates the

25 preservation of the integrity of the chain of custody of

26 the jacket.

27 A. That would be in my notes.

28 Q. Okay. Where in your notes?

Page 372

1 A. Page 3, describing the brief description of the

2 item of the jacket.

3 And then on page 8, a more detailed description

4 was made.

5 Page 9, a continuation of that description.

6 Q. Okay. But these pages, sir, are indicating the

7 testing procedures or your observations; is that correct?

8 A. That is correct.

9 Q. I’m asking you about chain of custody, not about

10 your observations. I’m asking you if there exists any

11 documentation that you have that indicates that the

12 chain of custody on this particular jacket wasn’t affected

13 in an adverse manner. Do you understand what I’m asking?

14 A. No, I do not.

15 Q. Is there any document that you have in your

16 possession that illustrates who had the jacket, when they

17 had the jacket, and to whom they gave the jacket?

18 A. No. I do not have that documentation.

19 Q. To the best of your knowledge, does such

20 documentation exist?

21 A. Perhaps with the forensic specialists.

22 Q. So are you saying, sir, that you do nothing to

23 insure the integrity of the documents beyond which is your

24 limited assignment?

25 MR. CLARKE: Objection. I think that’s vague,

26 Your Honor. Documents?

27 THE COURT: Sustained. I think he misspoke

28 himself.

Page 373

1 MR. FELDMAN: I misspoke.

2 Q. So are you saying, sir, that insofar as you’re

3 concerned, all you do is do the testing and not worry about

4 the chain of custody with regard to the jacket?

5 MR. CLARKE: Objection. Argumentative.

6 THE COURT: Overruled.

7 THE WITNESS: No, sir.

8 BY MR. FELDMAN:

9 Q. What do you do specifically to preserve — strike

10 that.

11 What did you do, specifically as reflected or

12 memorialized in notes, to preserve the integrity of that

13 jacket?

14 A. The actual packaging, the condition of the

15 packaging was noted in my notes.

16 Q. But then when you’re done with your work, where

17 do you put it? Not your work. The jacket.

18 A. That is then sealed — excuse me. It’s wrapped

19 with the original examination paper that it was observed

20 on.

21 Q. Uh-huh?

22 A. Placed back into its original packaging, which

23 would be the extra large brown sealed paper bag, sealed

24 with my initials, along with appropriate labeling, which

25 was then returned to Karen Lealcala.

26 Q. So it came from Lealcala to you?

27 A. Correct.

28 Q. Then from you on the 13th of February back to

Page 374

1 Lealcala; is that correct?

2 A. May I refer to my notes, Your Honor?

3 Q. Please.

4 THE COURT: Please.

5 THE WITNESS: The extra large brown paper bag

6 that contained item 94-D, the jacket, was returned to

7 Karen Lealcala 3-6-02.

8 BY MR. FELDMAN:

9 Q. March the 6th?

10 A. Correct.

11 Q. When did you first obtain possession of that

12 particular item of evidence?

13 A. The jacket?

14 Q. Yes, sir.

15 A. I received the extra large brown paper bag on

16 2-8-02. That bag was then cut open on 2-11-02.

17 Q. And was it left open from 2-11 to 3-6?

18 A. No. What had happened is that after the items

19 were examined or inventoried, they were placed back into

20 that extra large brown paper bag and then covered with a

21 clean examination paper that was sealed with my initials

22 and then placed into an evidence evaluation locker.

23 Q. With regard to that evidence evaluation locker,

24 is there some documentation reflecting the time you checked

25 in the now rewrapped jacket?

26 A. No time. Just dates, sir.

27 Q. And can you tell me what date did you then check

28 it back into the evidence locker?

Page 375

1 A. When the extra large brown paper bag was opened

2 on 2-11-02, after the items had been inventoried and placed

3 back into their original packaging and wrapped with a clean

4 examination paper, sealed —

5 MR. FELDMAN: Excuse me, sir.

6 Your Honor, at this time I make a motion to

7 strike the witness’ answer as not responsive, and I’d

8 request the court to direct the witness answer the question

9 pending.

10 THE COURT: Counsel, he doesn’t need any

11 direction. I’ll strike his answer. Restate your

12 question.

13 BY MR. FELDMAN:

14 Q. Can you please tell me the date that it was

15 checked into the evidence locker that you referred to?

16 A. 2-11-02.

17 Q. Then when was it released again?

18 A. It was re-opened again on 2-12-02.

19 Q. By whom?

20 A. By myself.

21 Q. Anybody else present?

22 A. No.

23 Q. When was it resealed subsequent to 2-12-02, if at

24 all?

25 A. Yes. It was resealed back at the evidence

26 evaluation locker 2-12-02.

27 Q. Then where did it go, or did it say in the

28 evidence locker from 2-12 until 3-6?

Page 376

1 A. No. The extra large brown paper bag was then

2 opened on 2-13-02, and item 94-D, the jacket, was examined.

3 Q. Was it resealed or was it on the 13th then of

4 February that you cut out the portions of the jacket to

5 which you referred on direct examination?

6 A. On 2-13-02 I did cut those.

7 Q. That was the date of the cut, right?

8 A. Correct.

9 Q. Okay. Then what? In other words,

10 chronologically what do you do after you cut it?

11 A. After the stains were placed in their appropriate

12 packaging?

13 Q. Yes.

14 A. Then placed into a freezer packet. That

15 freezer packet was sealed and then placed into the

16 forensics biology fridge and secured in the forensic

17 biology fridge on 2-13-02. On 2-14-02 it was then

18 transferred from the forensic biology fridge to the

19 forensic biology minus 20 freezer. That is also secured

20 with a locked key.

21 Q. And who’s got — where in the building is that

22 particular locked area to which you just made reference?

23 A. The minus 20 degree freezer?

24 Q. Yes.

25 A. It’s locked in a secured chemical storage room.

26 Q. Well, but what I’m wondering is it’s in the

27 building on 14th street, right?

28 A. 1401.

Page 377

1 Q. Yes. And it’s got a lot of floors at 1401,

2 right?

3 A. Correct.

4 Q. I’m asking you what floor was the evidence locker

5 to which you make reference?

6 MR. CLARKE: Objection. Relevance, Your Honor.

7 THE COURT: Sustained.

8 MR. FELDMAN: It’s a chain issue, Your Honor.

9 THE COURT: Sustained.

10 BY MR. FELDMAN:

11 Q. In whose department was the evidence locker, the

12 minus 20 evidence locker to which you made reference?

13 A. That is the chemical storage room.

14 Q. And who has access to the chemical storage area?

15 MR. CLARKE: Same objection, Your Honor.

16 THE COURT: Overruled.

17 Who has access?

18 THE WITNESS: Only laboratory members.

19 BY MR. FELDMAN:

20 Q. And when you say laboratory members, who does

21 that include?

22 MR. CLARKE: Same objection, Your Honor.

23 THE COURT: Overruled.

24 THE WITNESS: Supervising criminalist,

25 criminalists, forensic specialists, any personnel related

26 to the lab. But the actual minus 20 degree freezer is a

27 key specific only to the forensic biology unit, and no one

28 else has access to that but us.

Page 378

1 BY MR. FELDMAN:

2 Q. With regard to the jacket that was received on or

3 about 2-8, I think you told us, who had access to the room

4 in which it was received, if anyone? Lealcala gave it to

5 you. You’ve told us that. Who has access to the area over

6 which or within which it was stored?

7 A. During my — when I held it?

8 Q. Yes.

9 A. Or when Karen —

10 Q. When you had it.

11 A. Again, that was held in the evidence evaluation

12 room that contained the evidence evaluation locker.

13 Q. Is the evidence evaluation room a secure area?

14 A. That is a secured area.

15 Q. And are the only persons allowed in the evidence

16 evaluation room forensic individuals, such as you just

17 articulated?

18 A. Correct.

19 Q. So, therefore, regular old homicide detectives

20 aren’t permitted in at all, correct?

21 A. They have no access to that area.

22 Q. What if they ask?

23 A. They have to be — at all times be present with

24 another laboratory member.

25 Q. Okay. Is there any piece of paper that’s in

26 existence that would tell us who accessed any of this

27 evidence while it was in your custody?

28 MR. CLARKE: Objection. Relevance, Your Honor.

Page 379

1 THE COURT: Counsel, we’re getting far afield.

2 We’re getting into a lot of discovery. All this gentleman

3 did was a limited amount of work. Sustained.

4 MR. FELDMAN: No further questions.

5 THE COURT: Anything further?

6 MR. CLARKE: No. Thank you, Your Honor.

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

8 subject to recall. Am I right?

9 MR. FELDMAN: Thank you.

10 THE COURT: I want to work out how — how do you

11 want me to handle his notes? He needs those notes. You

12 need those notes. I don’t need them, but you all need

13 those notes. What’s your suggestion?

14 MR. FELDMAN: I would offer to stipulate that

15 they could be released to my office and I’d be happy to

16 make copies and provide them to the district attorney’s

17 office in due course.

18 THE COURT: I have a feeling that’s not going to

19 be acceptable. Am I right or wrong?

20 MR. CLARKE: You read my mind, Your Honor.

21 THE COURT: That’s not easy to do sometimes.

22 MR. CLARKE: I would prefer the reverse.

23 THE COURT: I’m going to order the reverse. Not

24 because I don’t trust the defense counsel, but because it’s

25 really a prosecution exhibit. All right.

26 MR. FELDMAN: Well —

27 THE COURT: Thank you. All right.

28 Okay. Thank you.

Page 380

1 THE WITNESS: Thank you, judge.

2 THE COURT: Make sure counsel gets your notes.

3 MR. FELDMAN: Thank you very much.

4 THE COURT: All right.

5 MR. CLARKE: Yes.

6 MR. FELDMAN: Your Honor, just for the record,

7 I’m sorry, just so I’m clear, the defendant’s exhibit F

8 we’re agreeing is being released to prosecution, and it

9 will be xeroxed by the prosecution and made available.

10 THE COURT: Correct.

11 MR. FELDMAN: Then I’d stipulate whatever needs

12 to be released back to the witness, that’s perfectly okay.

13 THE COURT: That’s what I assumed we were

14 doing.

15 MR. FELDMAN: Thank you, Your Honor.

16 THE COURT: Thank you.

17 Next witness.

18 MR. CLARKE: Dorie Savage, Your Honor.

19 THE COURT: All right.

20 Good afternoon. Raise your right hand.

21

22 Dorie Savage,

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

24 having been first duly sworn, testified as follows:

25

26 THE COURT: Please take the stand.

27 Good afternoon. Almost said good morning. Tell

28 us your name, please.

Page 381

1 THE WITNESS: Dorie Savage.

2 THE COURT: Would you spell your name.

3 THE WITNESS: D-O-R-I-E, S-A-V-A-G-E.

4 THE COURT: Thank you.

5 Go ahead, counsel.

6 MR. CLARKE: Thank you, Your Honor.

7

8 DIRECT EXAMINATION

9 BY MR. CLARKE:

10 Q. Ms. Savage, who are you employed by?

11 A. San Diego Police Department crime lab.

12 Q. Within the crime laboratory, what is your

13 position?

14 A. Forensic specialist.

15 Q. Is that an individual, and I believe we’ve heard

16 from one other previous to you, one of whose duties is to

17 collect evidence in investigations of criminal activity?

18 A. That’s correct.

19 Q. How long have you been in the crime laboratory as

20 a forensic specialist?

21 A. Approximately three years.

22 Q. Could you describe for the court, please, your

23 education, training and experience that lead to your

24 position as a forensic specialist with the San Diego

25 Police Department?

26 A. Surely. I have an associates of science degree

27 in forensic technology from Grossmont college, and I

28 interned for the police department for approximately a year

Page 382

1 and a half as a latent print assistant and as a forensic

2 specialist.

3 And I’ve also received training during my

4 employment at the police department where I have to take

5 proficiency exams.

6 Q. Since you’ve mentioned it, could you describe

7 briefly what a proficiency exam is?

8 A. Right. First I have to practice on whatever the

9 task is, and then I have to actually perform the task in a

10 satisfactory manner, such as fingerprinting an object or

11 photographing an object or person.

12 Q. Can these be fairly described as tests, as

13 opposed to actual case work?

14 A. Yes.

15 Q. Does your training or has your training and

16 experience included the collection of biological samples

17 from known individuals?

18 A. Yes, it has.

19 Q. In particular, I’d like to direct your attention

20 to the date of February 2nd of this year and ask if you

21 were called upon to perform any tasks in the investigation

22 of the disappearance of Danielle Van Dam?

23 A. Yes, I was.

24 Q. In particular, on February 2nd of this — yes, of

25 this year, 2002, were you asked to go to the location of

26 the victim’s residence?

27 A. Yes, I was.

28 Q. Do you recall the address?

Page 383

1 A. 12011 Mountain Pass road.

2 Q. What area of San Diego is that in?

3 A. Sabre springs.

4 Q. Did you go to that location on that date?

5 A. Yes, I did.

6 Q. Do you recall approximately what time of the day

7 you arrived at the residence?

8 A. Approximately 4:20 in the afternoon.

9 Q. What was your assignment at that time?

10 A. At that time I was called out to investigate a

11 missing person.

12 Q. And with regard to your task as a forensic

13 specialist, what were you requested to do?

14 A. To go in and look for evidence to see if we could

15 find where the girl might be.

16 Q. So it literally included trying to determine if

17 Danielle Van Dam was in the house?

18 A. Absolutely. I assisted in searching the house

19 from top to bottom, literally.

20 Q. After you arrived, did you have occasion to go

21 into a bedroom in the residence identified as being that of

22 the victim?

23 A. Yes, I did.

24 Q. Where was that?

25 A. That was in the upper floor on the second story,

26 just at the top of the stairs, the second door to the left.

27 Q. Can you describe the bedroom at all?

28 A. It was obviously a little girl’s room. It was

Page 384

1 pink with a border of some sort, and it had a white canopy

2 bed, mirrored sliding closet doors, and white desk and

3 furniture.

4 Q. When you entered the bedroom, did you have

5 occasion to look in the room?

6 A. Yes.

7 Q. Did that examination include the flooring of that

8 room?

9 A. Yes, it did.

10 Q. Can you describe what was the flooring in the

11 room?

12 A. The flooring was carpet, and I was actually down

13 on my hands and knees examining this carpet.

14 Q. Did this carpet appear to be freshly vacuumed in

15 any manner?

16 A. No, it did not.

17 Q. What leads you to that opinion?

18 A. Well, there were items all over the floor. There

19 were little pieces of what looked like maybe a sequin or

20 something like that, and I didn’t see any vacuum marks that

21 you would expect to see if it were freshly vacuumed.

22 Q. Did you have occasion to obtain any underwear

23 from that bedroom?

24 A. Yes, I did.

25 Q. Can you describe the circumstances of that

26 collection?

27 A. Yes. I collected it and placed it in a bag and

28 labeled the bag.

Page 385

1 Q. Let’s talk a little bit if you could. Where did

2 you collect it from?

3 A. They were in the bedroom, in the pink bedroom

4 over in the corner near the closet in the dresser.

5 Q. Why did you collect that underwear?

6 A. Well, because they were reportedly the last

7 clothes that the victim had worn.

8 Q. Can you describe the underwear for us?

9 A. They’re predominantly white with some sort of a

10 pattern, Haines her way, size 8, children’s underwear.

11 Q. Could you determine, for example, if they were a

12 boy’s underwear or a girl’s underwear?

13 A. They were a girl’s underwear.

14 Q. Did you ultimately place an item number on that

15 particular pair of underwear?

16 A. Yes, I did.

17 Q. What item number was that?

18 A. Item number 3.

19 Q. Did you examine the underwear in any way in the

20 process of collecting it?

21 A. Visually examined it when I was collecting it,

22 and when I was packaging it, you know, to final seal it at

23 the lab, I did.

24 Q. Did you notice anything unusual in the area of

25 the underwear?

26 A. There were stains in the crotch area.

27 Q. After obtaining that item, did you, in fact,

28 place it in any type of container as part of the collection

Page 386

1 process?

2 A. Yes, I did.

3 Q. What was that?

4 A. A brown paper bag.

5 Q. Did you label the bag appropriately?

6 A. Yes, I did.

7 Q. Including with the item number?

8 A. Yes, I did.

9 Q. And where it was seized from?

10 A. Yes.

11 Q. Now, that particular search — first of all, the

12 underwear, I assume, was one of other items that were

13 seized, as well?

14 A. That’s correct.

15 Q. How long were you present at the residence

16 beginning in the afternoon of February 2nd?

17 A. Oh, from February 2nd at about 4:30 until

18 February 3rd until I believe almost 5:00 in the morning.

19 Q. So you were there something in excess of

20 12 hours.

21 A. Yes.

22 Q. Were you conducting a search during that entire

23 period or close to it?

24 A. The search for evidence or for the victim?

25 Q. Both.

26 A. Both, yes.

27 Q. In the course of that search, did you also have

28 occasion to look for latent or patent fingerprints?

Page 387

1 A. Yes, I did.

2 Q. As part of that process, what do you do?

3 A. Well, the first thing I would do is look at it

4 with a strong light. And then I would use a black powder,

5 fingerprint powder, to dust the area.

6 Q. Did you, in fact, use, for example, this powder

7 to, in fact, try to develop various latent fingerprints?

8 A. Yes, I did.

9 Q. Incidentally, when this search was going on, were

10 the parents of Danielle Van Dam in the home?

11 A. They were not.

12 Q. When you arrived there, were they in the home?

13 A. They were not.

14 Q. And up to and including when you concluded your

15 search, I think you said 5:30 or so in the morning the next

16 day, were they still out of the house?

17 A. They were still out of the house.

18 Q. When you used this powder to try to develop

19 fingerprints — first of all, did that go on, for example,

20 in Danielle’s bedroom?

21 A. Yes, it did.

22 Q. Did it go on in other parts of the house?

23 A. Yes, it did.

24 Q. What happens when you use that powder? Does it

25 just stay on the surface that you’re trying to develop

26 latent fingerprints from?

27 A. It gets everywhere. It gets on the carpet, on

28 the person doing the dusting. It makes a mess.

Page 388

1 Q. When you left ultimately, I think you said, what,

2 just before dawn — I’m sorry. Was it around 5:30 in the

3 morning?

4 A. I think, yes.

5 Q. Had anything been vacuumed from the time period

6 when you arrived to when you left?

7 A. No.

8 Q. When you left on February 3rd; is that correct?

9 A. That’s correct.

10 Q. Did you have occasion to then return to the

11 residence?

12 A. Yes, I did.

13 Q. When was that?

14 A. On February 4th.

15 Q. Do you recall roughly what time?

16 A. Around 10:00 in the morning.

17 Q. Was that to conduct a further search?

18 A. Yes, it was.

19 Q. What did you do, basically if you can kind of

20 capsulize it, when you returned later — I’m sorry — on

21 February 4th?

22 A. On February 4th we went back in and looked

23 through the room again, and we further searched the house

24 for any more evidence that we might find.

25 Q. Was there any indication of anyone having

26 conducted any vacuuming when you returned, that is between

27 the time you left and when you returned on the 4th?

28 A. In what area?

Page 389

1 Q. Any part of the house.

2 A. In the stairwell.

3 Q. And that is the stairwell that one would have to

4 walk up?

5 A. Yes.

6 Q. And had there been stairwell — I’m sorry — had

7 there been powder used in that stairwell, as well?

8 A. Yes.

9 Q. Now, I’d like to turn your attention if I could

10 to February 6th and ask you if you had occasion to collect

11 any known biological samples from anyone?

12 A. Yes, I did.

13 Q. Could you describe for us, first of all, what

14 time of the day and where you were located?

15 A. I was at the Van Dam residence, and in their

16 little office that’s off the entryway, and I collected

17 reference mouth swabs and had hair samples from both

18 Damon and Brenda Van Dam.

19 Q. When you say mouth swabs, can you tell us what

20 you mean?

21 A. Yeah. I take a little Q-tip and insert it into

22 the cheek area and swab the inside of the cheeks.

23 Q. What was the purpose of taking those samples from

24 Brenda and Damon Van Dam?

25 A. We collect what we call reference samples that

26 can be compared against samples that we collect at

27 crime scenes to either include or exclude somebody.

28 Q. Can, for example, saliva samples from an

Page 390

1 individual be used as a known sample for later DNA genetic

2 marker analysis?

3 A. Right. A reference sample is a known sample for

4 DNA.

5 Q. When you collected those samples, did you label

6 them appropriately?

7 A. Yes, I did.

8 Q. Did you, in fact, impound them for any later

9 testing?

10 MR. FELDMAN: Excuse me, Your Honor. I have to

11 object to counsel’s — the question calls for conclusion

12 and assumes facts not in evidence and is leading by use of

13 the word appropriately. That’s a question of fact.

14 THE COURT: All right. We’ll take your word

15 appropriately out, and you can ask the question again.

16 MR. CLARKE: Very good.

17 Q. Did you label the samples that you took from each

18 of Brenda and Damon Van Dam?

19 A. Yes, I did.

20 Q. Did you return them to the police department?

21 A. Yes, I did.

22 Q. And impound them?

23 A. Yes, I did.

24 Q. Did you place identifying information on each of

25 those samples to identify which sample came from which

26 person?

27 A. Absolutely.

28 Q. What contact did you have with the parents,

Page 391

1 Brenda and Damon Van Dam, in the course of your being at

2 the residence?

3 A. After the initial investigation the 2nd and the

4 3rd, that day I had no contact with them. But every visit

5 from there on out they were pretty much at the house when I

6 was at the house. So they were in other rooms or they

7 would come up and talk to me while I was there. Just very

8 casual hello, do you need anything type conversation.

9 Q. Were they cooperative?

10 A. They were very cooperative and very helpful.

11 Q. Was that true at all times that you had contact

12 with them?

13 A. Yes, it was.

14 MR. CLARKE: Thank you.

15 I have no further questions, Your Honor.

16 THE COURT: Go ahead.

17

18 CROSS-EXAMINATION

19 BY MR. FELDMAN:

20 Q. The Van Dams were very cooperative, weren’t they?

21 A. Yes, they were.

22 Q. And they were so cooperative they would volunteer

23 information to you; isn’t that correct?

24 A. To me personally, no.

25 Q. Or others in your presence?

26 A. Yes.

27 Q. And you didn’t draw any adverse inference from

28 the fact that these people were so cooperative with you,

Page 392

1 did you?

2 MR. CLARKE: Objection. Argumentative.

3 THE COURT: Well, counsel, I certainly know where

4 he’s going. Overruled.

5 THE WITNESS: I’m sorry. Could you repeat that?

6 BY MR. FELDMAN:

7 Q. You didn’t think anything bad about them merely

8 because they were being so cooperative with you, did you?

9 A. No.

10 Q. Do you think that because a citizen is very

11 cooperative with you, that in some manner that makes that

12 citizen more likely guilty than not?

13 MR. CLARKE: Objection. Argumentative.

14 THE COURT: Overruled.

15 THE WITNESS: No.

16 THE COURT: We’ve covered that. Let’s go on.

17 MR. FELDMAN: Thank you.

18 Q. You mentioned on direct examination the issue of

19 proficiency examination — proficiency testing. With

20 regard to the proficiency testing that you reference, is

21 that internal or external proficiency testing?

22 A. The testing I was talking about would be internal

23 proficiency testing.

24 Q. In other words, the testing that you did to, I

25 guess pass whatever exam, was something conducted by the

26 San Diego Police Department; is that correct?

27 A. That’s correct.

28 Q. But you’re aware that there’s something called,

Page 393

1 if I’m saying it right, accreditation?

2 A. That’s correct.

3 Q. And does accreditation require external

4 proficiency testing?

5 MR. CLARKE: Objection. Relevance, Your Honor.

6 MR. FELDMAN: It’s raised —

7 THE COURT: Hold on a second. As I understand

8 this woman’s testimony, she picked up a pair of underwear

9 and some other clothes and noticed a stain in the crotch

10 area, and I guess you took it to the police lab. And she

11 got some swabs from her parents — from the parents’

12 mouths. That’s all she did. I mean she did a lot of

13 searching, but that’s all of the finite evidence that I’ve

14 received.

15 So I don’t know why we have to worry about

16 accreditation, all the rest of it. I don’t think that

17 picking up a pair of underwear takes great expertise.

18 And I’m not trying to demean anyone. I’m just

19 saying I don’t think it’s particularly helpful to me.

20 MR. FELDMAN: I understand.

21 THE COURT: So I’m going to sustain the objection

22 on 352 grounds.

23 BY MR. FELDMAN:

24 Q. You went to Mountain Pass road, the Van Dam

25 residence, for the specific purpose of going in and looking

26 for evidence. That’s what you told us on direct

27 examination; is that correct?

28 A. That’s correct.

Page 394

1 Q. And basically you were literally on your hands

2 and your knees looking for possible trace evidence; isn’t

3 that correct?

4 A. I don’t believe I said that.

5 Q. Sorry. Did you get down on your hands and knees

6 to look?

7 A. I did.

8 Q. And were there other either evidence techs or

9 criminalists who were also looking while you were looking?

10 A. There was.

11 Q. One of your purposes in your job is to make sure

12 you identify everything that might be of consequence in

13 connection with an ongoing investigation; is that right?

14 A. Me personally, that I identify everything?

15 Q. You try and identify — you try and find as much

16 as you can, right?

17 A. That would be accurate.

18 Q. And in the process of your finding things in this

19 particular house, you found three bright red colored stains

20 about half the size of a pencil eraser located along the

21 walls of the staircase at the Van Dam residence; isn’t that

22 true?

23 A. No. That’s not true.

24 Q. Have you had the opportunity to review some of

25 the discovery in this case?

26 THE COURT: Counsel, you might want to be a

27 little more specific.

28 /////

Page 395

1 BY MR. FELDMAN:

2 Q. All right. Specifically directing your attention

3 to the report of one Joseph Howie, H-O-W-I-E. And more

4 specifically directing your attention to his report dated

5 2-12-02, and more specifically directing your attention to

6 page 2 of that report. Discovery page 16, counsel.

7 Did you have any conversations with — did you

8 ever review that portion of the report that I just

9 articulated?

10 MR. CLARKE: Objection. Vague. I don’t even

11 know what that question asks, with the preface.

12 THE COURT: I understood the question.

13 Did you ever review any report by

14 detective Howie, is it?

15 MR. FELDMAN: Yes, Your Honor.

16 THE COURT: Before you testified here?

17 THE WITNESS: I reviewed a report for accuracy.

18 I don’t know if I reviewed the report you’re talking

19 about.

20 BY MR. FELDMAN:

21 Q. All right. When you tell us that you reviewed a

22 report for accuracy, what report was that?

23 A. I don’t know what he called the report.

24 Q. He, referring to detective Howie?

25 A. Detective Howie. I’m sorry.

26 Q. So what you’ve just told us is, I believe, that

27 you did, in fact, review a report of detective Howie,

28 at least for purposes of insuring it was accurate; is that

Page 396

1 correct?

2 A. Yes.

3 Q. And with regard to the report that you reviewed,

4 did you conclude that it was accurate?

5 A. As far as I recall.

6 Q. And have you prepared — have you yourself

7 prepared any reports of any kind or memorandum to reflect a

8 conclusion that there was an inaccuracy in anybody’s

9 reports?

10 A. No.

11 MR. CLARKE: Objection. Vague.

12 THE COURT: Hold on.

13 Answer — the objection is sustained. The answer

14 is stricken. But if you’ve got something you want to show

15 her —

16 MR. FELDMAN: Yeah. May I, please?

17 THE COURT: You may.

18 BY MR. FELDMAN:

19 Q. I’d like to specifically direct your attention to

20 page 2 of detective Joseph Howie’s report. And, ma’am,

21 you’re welcome to look at it.

22 A. Surely.

23 Q. It says — I indicated detective Joseph Howie,

24 date of this report, 2-12-02, and I’m specifically

25 directing your attention to the last paragraph on page 2

26 which specifically reads, “I viewed the entire residence,

27 and most notably were three bright red-colored stains about

28 half the size of a pencil eraser located along the walls of

Page 397

1 the staircase.”

2 Now, is this the report you reviewed for

3 accuracy?

4 A. That’s accurate.

5 Q. So I — so, in fact, you did see three bright

6 Red-colored stains about half the size of a pencil eraser

7 located along the walls of the staircase?

8 A. Well, you asked me if I found them. I did not

9 find them.

10 Q. Oh. So I just used the wrong word in asking the

11 questions; is that correct?

12 MR. CLARKE: Objection. Argumentative.

13 THE COURT: Counsel? He’s right. Sustained.

14 BY MR. FELDMAN:

15 Q. Ma’am, have you received any training in how to

16 testify?

17 MR. CLARKE: Same objection, Your Honor.

18 THE COURT: Sustained, counsel.

19 BY MR. FELDMAN:

20 Q. Did you become aware of the fact that

21 detective Howie or other law enforcement officers

22 discovered, most notably, three bright red-colored stains

23 about half the size of a pencil eraser located along the

24 walls of the staircase?

25 A. Yes.

26 MR. CLARKE: Excuse me. Objection, relevance.

27 Also assumes facts not in evidence.

28 THE COURT: Well, I see how it’s relevant.

Page 398

1 MR. FELDMAN: Third Party — what I’m trying to

2 do is develop through cross-examination third party

3 culpability.

4 THE COURT: I understand. I haven’t said no yet,

5 have I?

6 MR. FELDMAN: No. I’m sorry.

7 THE COURT: Okay. I’m going to allow the — this

8 line of questioning.

9 MR. FELDMAN: Thank you.

10 THE COURT: I saw it coming yesterday. Go ahead.

11 So some stains were found at the base of the

12 staircase. Go ahead.

13 BY MR. FELDMAN:

14 Q. Ma’am, is it correct that one stain was located

15 beside the third step along the west wall between the

16 staircase landings?

17 A. I don’t have notes to that effect.

18 Detective Howie would have the notes as to exactly where

19 the stains were located.

20 MR. FELDMAN: If I could then approach?

21 Q. Let me ask you this. Would reviewing

22 Detective Howie’s report refresh your recollection?

23 A. Possibly.

24 MR. FELDMAN: May I approach, please?

25 THE COURT: Go ahead.

26 BY MR. FELDMAN:

27 Q. Again, I’m just going to move you through the

28 same paragraph, ma’am.

Page 399

1 A. Okay.

2 Q. Is it correct that one stain was located beside

3 the third step along the west wall between the staircase

4 landings?

5 A. That’s correct.

6 Q. Is it also correct that there were two other

7 stains?

8 A. That’s correct.

9 Q. And that the two other stains were located along

10 the north and west walls of the second staircase landing?

11 A. That’s correct.

12 Q. And you conducted a Hemastix test on one of the

13 three stains, and the test was positive; is that correct?

14 A. That’s correct.

15 Q. What’s a Hemastix test?

16 A. A Hemastix test is a presumptive test that

17 indicates the possible presence of blood.

18 Q. So you discovered the possible presence of blood

19 in the Van Dam residence on the staircase; is that right?

20 A. That’s correct.

21 Q. Have those — now, you — let me withdraw that.

22 Have you caused those particular stains to be

23 tested for more than presumptive testing, but for positive

24 testing?

25 A. That’s beyond my scope.

26 Q. All right. So it’s just your job to spot it, and

27 then it’s someone else’s job to test it? Is that a fair

28 statement?

Page 400

1 A. It’s my job to collect it, and someone else’s job

2 to test it.

3 Q. With regard to those three stains, did you

4 collect, do anything to collect them?

5 A. I’m not certain which three stains you’re talking

6 about. Could you be more specific?

7 THE COURT: The ones found at the base of the

8 staircase. Correct, counsel?

9 MR. FELDMAN: Yes.

10 Q. The ones we’re talking about, ma’am.

11 A. I did collect three stains from those walls, yes.

12 MR. FELDMAN: Excuse me, Your Honor.

13 THE COURT: Okay.

14 BY MR. FELDMAN:

15 Q. With regard to other of your tasks, ma’am, did

16 you cause or participate in the labeling of any of the

17 items of evidence that were seized?

18 A. At the Van Dam residence?

19 Q. Yes, ma’am. All of my questions are specific to

20 the Van Dam residence, and I think your first voyage into

21 their residence, okay?

22 A. Yes.

23 Q. Just so we track?

24 A. Yes, I did.

25 Q. And in the Van Dam residence, apparently in the

26 bedroom, did you locate a cream-colored beanbag chair that

27 had an apparent reddish brown stain on the bottom?

28 A. Yes, I did.

Page 401

1 Q. And did you apply a Hemastix test to that?

2 A. Yes, I did.

3 Q. And did it test positive or negative?

4 A. It tested positive.

5 THE COURT: Which bedroom?

6 BY MR. FELDMAN:

7 Q. This is now Danielle Van Dam’s bedroom, is it

8 not, or at least the bedroom that was identified to you as

9 Danielle Van Dam’s?

10 A. Correct. The pink girl’s bedroom.

11 Q. By the way, before you enter the pink bedroom,

12 were you able to see the exterior of the door that led into

13 the bedroom?

14 A. Yes, I was.

15 Q. Was there anything unique and unusual or unusual

16 about the outside of the door?

17 A. On which day?

18 Q. The first day, before the fingerprint powder went

19 up.

20 A. Okay. I need to clear something up. Is that

21 okay?

22 Q. Sure.

23 A. I did not collect the beanbag chair on the first

24 day.

25 Q. Okay.

26 A. Okay.

27 Q. On the first day, though, before you ever entered

28 Danielle Van Dam’s residence, I think you told us the

Page 402

1 Van Dams were not in the residence when you were working;

2 is that correct?

3 A. That’s correct.

4 Q. And that was the day you worked more than

5 12 hours, right?

6 A. That’s correct.

7 Q. Did you notice before you entered

8 Danielle Van Dam’s bedroom anything unique or unusual about

9 the exterior of the door leading into the room?

10 A. I’m not sure what you’re asking me.

11 Q. It looked like a regular old door, didn’t it?

12 A. Yes. It just looked like a bedroom door.

13 Q. All right. And there were — in fact, there were

14 other bedroom doors when you walked up the stairs; isn’t

15 that correct?

16 A. That’s correct.

17 Q. There were at least three bedroom doors; isn’t

18 that correct?

19 A. That’s correct.

20 Q. And if the doors were closed or almost closed,

21 they all looked basically the same; isn’t that correct?

22 A. No. That’s incorrect.

23 Q. How were they different?

24 A. They had unique decorations.

25 Q. Did you photograph the decorations?

26 THE COURT: One at a time. Want to finish your

27 answer, please?

28 THE WITNESS: There were unique decorations on

Page 403

1 the doors.

2 BY MR. FELDMAN:

3 Q. On the exteriors of the doors?

4 A. On the exteriors of the doors.

5 Q. Tell me, please, what — describe those unique

6 decorations, if you can.

7 A. I don’t recall precisely what they were.

8 Q. You noted them in a report, did you?

9 A. No, I did not.

10 Q. You took photographs of it?

11 A. I was not the photographer that day.

12 Q. You suggested that photos be taken of them?

13 A. Yes.

14 Q. To whom?

15 A. Rubin Inzunsa.

16 Q. Now, in addition to the blood or the presumptive

17 Hemastix blood that you found on the stairwell, and in

18 addition to the presumptive blood that you found in the

19 bedroom underneath the beanbag chair, did you also find

20 evidence of blood on the outside of the residence?

21 MR. CLARKE: Objection. Misstates the

22 evidence.

23 THE COURT: He’s asking a question.

24 MR. CLARKE: I’m sorry. In the preface —

25 THE COURT: He said — well, she didn’t find it.

26 MR. CLARKE: Actually it was the location. She

27 didn’t describe it as he described it, in the beanbag.

28 MR. FELDMAN: Under the beanbag.

Page 404

1 THE COURT: Under the beanbag. That’s what I

2 thought he said. We all know it’s around the beanbag.

3 Under — it’s not important at this hearing.

4 MR. CLARKE: Very good.

5 THE COURT: The question is — the question, as I

6 understand it, was did she find any blood stains outside

7 the residence?

8 MR. FELDMAN: Yes, Your Honor.

9 THE COURT: That’s the question.

10 THE WITNESS: I found what might be blood.

11 BY MR. FELDMAN:

12 Q. And specifically can you tell us where you found

13 what might be blood?

14 A. In the threshold of the doorway leading from the

15 garage to the side yard where the trash cans are stored.

16 Q. Was that area photographed, to your knowledge?

17 A. Yes.

18 Q. And was it photographed in a way that would allow

19 reproduction of, for instance, blood spatter evidence?

20 A. I believe so.

21 Q. Okay. Now, I just tossed a term at you.

22 I’m sorry. Are you experienced in the area of

23 blood spatter evidence?

24 A. No, I’m not.

25 Q. So you’re not in a position to tell — okay.

26 Can you tell me with regard to the blood that you

27 just testified to or the presumptive blood that you just

28 testified to on the exterior of the residence —

Page 405

1 THE COURT: She didn’t say that.

2 MR. FELDMAN: Okay.

3 THE COURT: She said what might be blood. I

4 didn’t hear what happened after that.

5 MR. FELDMAN: Please. All right. What might be

6 blood.

7 Q. How big a spot was it?

8 A. I didn’t measure it. I could estimate.

9 Q. Please.

10 A. Approximately three inches.

11 Q. All right.

12 A. Long.

13 Q. And what about width?

14 A. I don’t recall.

15 Q. Okay. And it’s not something that you recorded

16 in any location map?

17 A. Pardon me?

18 Q. Is it anything — did you record in any locations

19 the measurements of that particular potential blood stain?

20 A. That would have been recorded by

21 detective Jerry Van Wey.

22 Q. Detective Van Wey, okay.

23 A. Yes.

24 Q. In addition, did you notice what may have

25 appeared to be blood in the area of a gate?

26 A. That — I believe we’re speaking about the same

27 area.

28 Q. Okay. How — if I could approach, please?

Page 406

1 THE COURT: Of course.

2 MR. FELDMAN: I’m showing counsel the document.

3 THE COURT: Since we all know each other, you

4 don’t have to ask me every time, okay?

5 MR. FELDMAN: Thank you, Your Honor.

6 THE COURT: It goes for your side, too,

7 counsel.

8 BY MR. FELDMAN:

9 Q. What I’m showing you is a diagram of what appears

10 to have been somebody’s diagram of the Van Dam residence.

11 Would you agree with that, ma’am?

12 A. Yes.

13 Q. And it does indicate that there’s a legend; isn’t

14 that correct?

15 A. That’s correct.

16 Q. The legend indicates that — uses the number 1 to

17 reflect blood, the number 2 to reflect hair fibers; is that

18 correct?

19 A. That’s correct.

20 Q. Specifically directing your attention to the

21 legend. You told me, I think that we were talking about

22 the same thing, and I would just like you to articulate,

23 describe as best you can the location that you observed

24 what might have been blood.

25 A. Where — assuming this is the side door that

26 leads from inside the garage out into the side yard,

27 correct.

28 Q. I’m sorry. I need to stop you. You used the

Page 407

1 word “this” and we have a record. So you just pointed to

2 an area on the diagram to the furthest right on the

3 diagram; is that correct, where there appears to be an

4 arrow?

5 A. That’s correct.

6 Q. All right.

7 A. And the number 1.

8 Q. Yes.

9 A. And where the number 1 is is the area where I did

10 observe what might be blood.

11 Q. Okay. So that — and that’s on I guess a walkway

12 that leads directly to the street?

13 A. No. It leads to the side yard where the

14 trash cans are stored.

15 Q. And is there a way to — oh. Did you notice any

16 drag marks near the trash cans?

17 A. In the same side yard, but not right near the

18 trash cans.

19 Q. So you saw what might have been blood and what

20 might have been drag marks in the same side yard?

21 A. No. I saw the blood in the doorway to the

22 garage, and the drag marks further south along the sidewalk

23 on the same side of the house.

24 Q. I’m sorry. You said along the sidewalk; is that

25 right?

26 A. Right. The sidewalk behind the gate along the

27 side of the house.

28 Q. Okay. With regard to the blood

Page 408

1 stains — I’m sorry — with regard to the possible

2 blood stain that we just identified as 1 on the chart I

3 showed you, I forgot to ask you whether you did a Hemastix

4 test.

5 A. I did not.

6 Q. Did anybody, to your knowledge, attempt to

7 determine whether or not that red spot that was three

8 inches in length was blood?

9 A. Not to my knowledge.

10 THE COURT: Can we identify it for the record,

11 the page of the discovery of the map or diagram that we

12 just showed the witness, so we know what we’re talking

13 about?

14 MR. FELDMAN: I couldn’t —

15

16 (Discussion off record.)

17

18 MR. FELDMAN: It’s very difficult — well, it

19 must be 10 — the sample is so light we’re trying —

20 THE COURT: I understand. I’m just trying to

21 make a record.

22 MR. FELDMAN: Thank you.

23 THE COURT: Hopefully we’ll identify the number

24 at sometime.

25 MR. FELDMAN: 13. Counsel, Mr. Dusek, has

26 pointed out 13.

27 THE COURT: Okay. Good.

28 MR. FELDMAN: And I would agree.

Page 409

1 THE COURT: Good.

2 BY MR. FELDMAN:

3 Q. I thought you said also that on your second time

4 back into the residence it appeared as though the stairway

5 had been vacuumed; is that correct?

6 A. That’s correct.

7 Q. Did you suggest to anybody that they should be

8 doing any vacuuming while you were in the process of

9 attempting to collect trace evidence?

10 A. I don’t believe I said I was in the process of

11 collecting trace evidence.

12 Q. Oh, so on the second occasion that you visited

13 the Van Dam residence, which I believe was the 4th, you

14 weren’t there for the purpose of identifying or locating

15 trace evidence?

16 A. On the stairs specifically? No.

17 Q. Anywhere.

18 A. In other parts of the residence, yes.

19 Q. So it’s correct that you went back a second

20 time — your purpose in going back a second time was to

21 collect trace evidence, right?

22 A. That would be correct.

23 Q. Now, my question, again, is did you direct anyone

24 to vacuum this stairwell over which you had seen apparent

25 blood stains?

26 MR. CLARKE: Objection. Relevance and

27 argumentative.

28 THE COURT: Well, overruled.

Page 410

1 Did you tell anybody to vacuum?

2 THE WITNESS: I did not.

3 THE COURT: Next question.

4 BY MR. FELDMAN:

5 Q. Did you talk to the — well, when the Van Dams

6 were being as cooperative as they were, did they volunteer

7 that they’d be happy to vacuum any areas of residence?

8 MR. CLARKE: Objection. Argumentative.

9 THE COURT: Sustained, counsel. You made your

10 point.

11 BY MR. FELDMAN:

12 Q. Did you attempt to recover trace evidence from

13 the bed of Danielle Van Dam, or any evidence for that

14 matter?

15 A. Yes.

16 Q. And with regard to the evidence that you sought

17 to recover from the bed of Danielle Van Dam, did you have

18 any communication with either Mrs. Van Dam or Mr. Van Dam?

19 MR. CLARKE: Objection. Beyond the scope.

20 THE COURT: This is beyond the scope, counsel.

21 It certainly is. Sustained.

22 MR. FELDMAN: This is search of the same bedroom,

23 Your Honor.

24 THE COURT: I understand.

25 MR. FELDMAN: Okay.

26 Q. Did you go to Mr. Westerfield’s residence at any

27 time?

28 MR. CLARKE: Same objection.

Page 411

1 THE COURT: Sustained. This is being used as a

2 discovery tool.

3 MR. FELDMAN: Your Honor —

4 THE COURT: Please.

5 MR. FELDMAN: My request is to please take this

6 witness out of order, let her — allow us at this time,

7 rather than bringing her back in our case in chief, to let

8 me ask two or three questions concerning whether or not she

9 went to Mr. Westerfield’s residence.

10 THE COURT: What does the D.A. have to say about

11 that request?

12 MR. CLARKE: My fear, Your Honor, is it won’t be

13 two or three questions.

14 THE COURT: Well, we all know it’s not going to

15 be two or three. The question is if can we limit it to

16 four or five, we might be able to live with that.

17 MR. CLARKE: I don’t think it will be,

18 Your Honor.

19 THE COURT: Counsel, if I were to get some sort

20 of a limitation, would you have an objection? You tell me.

21 MR. CLARKE: Well —

22 THE COURT: It’s not a loaded question.

23 MR. CLARKE: We’re trying to present our case,

24 instead of having it interrupted.

25 THE COURT: If you wish to bring her back, she’s

26 not excused, she’s subject to recall, okay?

27 MR. FELDMAN: Yes. Thank you.

28 THE COURT: Go ahead.

Page 412

1 BY MR. FELDMAN:

2 Q. Was there a rug shampoo machine in the house?

3 A. Yes.

4 Q. And do you know whether or not the rug shampoo

5 machine had been utilized between the time you were first

6 in the residence and the second — and the time you were

7 second in the residence?

8 A. It was not.

9 Q. How do you know that?

10 A. I collected it on the first time I was there.

11 Q. All right. So you removed the shampoo machine?

12 A. Yes, I did.

13 Q. Does it have the same kind of container that

14 another kind of vacuum or a regular vacuum might have?

15 A. I’m not sure what you mean.

16 Q. What I’m trying to figure out is whether there

17 was a vacuum cleaner bag in the rug shampoo machine that

18 would allow you to look for trace evidence.

19 A. Not exactly a bag.

20 Q. Some kind of container?

21 A. Yes.

22 Q. Did you look in that container, whatever

23 kind of container it was, for the purpose of locating

24 trace evidence?

25 A. No.

26 Q. With regard to the Van Dams vacuuming, which

27 apparently you observed on the stairwell, did you seize

28 that vacuum?

Page 413

1 MR. CLARKE: Objection. Assumes facts not in

2 evidence.

3 THE COURT: Well, counsel, she didn’t observe it.

4 I know that. Okay? She didn’t see them vacuum.

5 MR. FELDMAN: Your Honor, maybe you’d consider a

6 10-minute recess at this time.

7 THE COURT: I’d like to finish with this witness

8 if I could.

9 MR. FELDMAN: I know, but — I understand that,

10 but, again, I’m asking the court for a brief recess. I can

11 assure the court it will expedite the proceeding.

12 THE COURT: You think so?

13 MR. FELDMAN: I know so.

14 THE COURT: I’ll hold you to that.

15 MR. FELDMAN: You may.

16 THE COURT: All right. You may not have a

17 10-minute recess. You may have 15 minutes.

18 THE COURT: Thank you, Your Honor.

19 THE COURT: Quarter after. Why don’t the two of

20 you talk about the possibility — I’m not — this is not an

21 arm twist, but the possibility of allowing him to ask four

22 or five questions, if they’re appropriate questions, okay,

23 about some other area. But if you object, your objection

24 will be sustained.

25 MR. DUSEK: Very well, Your Honor.

26 THE COURT: Thank you.

27

28 (Recess)

Page 414

1 MR. FELDMAN: Thank you. Proceed, Your Honor?

2 THE COURT: Proceed.

3 MR. FELDMAN: Thank you.

4

5 Dorie Savage,

6 Resumed the stand and testified further as follows:

7

8 CROSS EXAMINATION (RESUMED)

9 BY MR. FELDMAN:

10 Q. Ma’am, over the recess did you talk with anybody

11 concerning any aspect of your testimony?

12 A. I’m not sure. With the attorneys. I’m not sure

13 what you mean.

14 Q. Did anybody talk to you over the recess

15 concerning any aspect of your professional involvement in

16 this case?

17 A. Other than good job? Or —

18 Q. Other than anything?

19 A. No.

20 Q. So nobody talked to you at the break concerning

21 any aspect of this case?

22 A. The details of the investigation?

23 Q. Ma’am, I’m asking you a very broad question.

24 A. Uh-huh.

25 Q. Did anybody over the break talk to you concerning

26 any aspect of your professional involvement in this case?

27 A. I’m trying to think what I spoke about over the

28 break.

Page 415

1 Q. Well, who did you talk to over the break?

2 A. The — Woody Clarke and Dusek — I’m not sure I

3 can say your name. The other attorney.

4 Q. Lead counsel for the prosecution?

5 A. Yes.

6 Q. The A team?

7 THE COURT: Counsel.

8 MR. FELDMAN: I’m sorry.

9 Q. Did you speak with Mr. Dusek over the break?

10 A. Yes.

11 Q. Did you speak with sergeant Holmes over the

12 break?

13 A. Briefly.

14 Q. Did they discuss with you any aspect of your

15 testimony?

16 A. I don’t believe anything about my testimony.

17 Just about the case.

18 Q. And what about the case did they discuss with

19 you?

20 A. I don’t recall precisely.

21 Q. How about generally?

22 A. Generally I think we spoke about whether I call

23 something a red stain or blood. That’s all I recall

24 offhand.

25 Q. Okay. So you’re telling me that at the break the

26 lawyers for the prosecution and possibly the sergeant

27 talked to you about whether you called something a stain or

28 a blood stain?

Page 416

1 A. A red stain or a blood stain.

2 Q. Okay. And were voices raised at all?

3 A. No.

4 Q. How close did these gentlemen come to you

5 physically in that communication?

6 MR. CLARKE: Objection. Relevance.

7 THE COURT: Sustained. Let’s proceed, counsel.

8 BY MR. FELDMAN:

9 Q. Directing your attention to the job you did in

10 lifting latent fingerprints —

11 A. Yes.

12 Q. — at the Van Dam residence. Did you attempt to

13 lift or remove latents from the front door?

14 MR. CLARKE: Objection. Beyond — I’m sorry.

15 MR. FELDMAN: Both sides.

16 MR. CLARKE: Objection. Beyond the scope.

17 THE COURT: Counsel?

18 MR. FELDMAN: I thought she raised on

19 direct examination — I’m sorry — counsel raised on

20 direct examination the fact she did attempt to raise latent

21 prints.

22 THE COURT: Overruled. I’ll let you ask the

23 question. She spent 12 hours there.

24 MR. FELDMAN: Yes.

25 THE COURT: Go ahead.

26 THE WITNESS: On the front door, no.

27 /////

28 /////

Page 417

1 BY MR. FELDMAN:

2 Q. How about on the back door?

3 A. I did not, but another forensic specialist did.

4 Q. In the bedroom, in Danielle’s bedroom, did either

5 you or someone in your presence attempt to raise latents on

6 the doorknobs?

7 A. I did.

8 Q. And did you obtain any lifts?

9 A. From the doorknob specifically? May I refer to

10 my note?

11 Q. Please.

12 THE COURT: Well, expand a little bit. The

13 doorknobs or anything around the doorknob.

14 MR. FELDMAN: Yes.

15 Q. Ma’am, when you get to what you’re looking at,

16 can you please describe it for us so we know what you’re

17 looking at, please?

18 A. Sure. I’m looking at copies of the back of my

19 fingerprint cards.

20 MR. FELDMAN: Your Honor, for the record, we’ve

21 not seen these either. I’d ask to have marked as

22 defendant’s next in order this witness’ notes.

23 THE COURT: That would be G, I believe.

24 MR. FELDMAN: Please.

25 THE COURT: You want the same arrangement with

26 the notes as we had with F?

27 MR. FELDMAN: Yes.

28 THE COURT: Any objection?

Page 418

1 MR. CLARKE: I’m just concerned about this

2 turning into a discovery proceeding, Your Honor.

3 THE COURT: Well, he’s entitled to them, anyway.

4 Whether he’s entitled to them right now or a little

5 later —

6 MR. CLARKE: Clearly.

7 THE COURT: — doesn’t make much difference.

8 MR. CLARKE: I’m just concerned about when we

9 extract them from the witness, it impairs the ability of

10 all of us to obtain them in an orderly fashion.

11 THE COURT: Well, I understand. We’re going to

12 give them to you. You’re going to have somebody in your

13 office photocopy them and give them back to her, and if

14 they’re —

15 MR. FELDMAN: And anyway, Your Honor, as a

16 practical matter, the evidence code provides where a

17 witness utilized something to refresh recollection, it’s

18 only us that are entitled to take — to move and inquire.

19 THE COURT: I understand that.

20 MR. FELDMAN: Thank you.

21 Q. Ma’am, you were describing what it was you were

22 going to look at. Could you please continue reviewing your

23 notes that you need to refresh your recollection to answer

24 my question?

25 A. Could you repeat your question?

26 Q. Where in the bedroom around the door did you — I

27 asked you, I think, at the door of the bedroom did you

28 attempt to raise latent prints and did you raise

Page 419

1 latent prints?

2 A. I did attempt to raise latent prints on the

3 victim’s bedroom door, and I did raise some.

4 Q. Okay. And that — you said you raised some.

5 Please tell me where specifically did you raise some prints

6 from?

7 A. I raised a print on the door frame and on the

8 exterior of the bedroom door approximately six inches above

9 the knob, and, again, on the trim of the door frame.

10 Q. I’m sorry. With regard to where you’re

11 describing, is that on the inside of the door, meaning the

12 part that’s in the bedroom, or the outside, meaning the

13 part that faces into the hallway?

14 A. If I say interior, then it would be inside the

15 bedroom, and on the door trim, sometimes it can be the

16 actual trim inside the doorway.

17 Q. Thank you.

18 A. Again, on the interior door above the knob.

19 Another one on the interior door above the knob, and one on

20 the interior of the door below the knob.

21 Q. Did you attempt to raise latent prints from any

22 other location in the house?

23 MR. CLARKE: Objection. Again beyond the scope,

24 Your Honor.

25 THE COURT: Counsel, if she spent 12 hours in the

26 house, I understood she was on her hands and knees, he’s

27 entitled to inquire, to a limited extent anyway.

28 Overruled.

Page 420

1 THE WITNESS: Yes, I did attempt to get

2 fingerprints from other areas of the house.

3 BY MR. FELDMAN:

4 Q. And were you successful?

5 A. Yes.

6 Q. Can you please tell us from where or what part of

7 the house you were successful in getting latent prints?

8 A. There was a dresser next to the victim’s bed, and

9 I retrieved a print off the front edge of that dresser,

10 desk type of furniture.

11 And then on the stairwell banisters, I retrieved

12 some prints, from various sections of the banisters. And

13 are we speaking of that day specifically, correct?

14 Q. Well, if you went back and attempted to raise

15 latent prints on another occasion, can you tell me what

16 date that was, please?

17 A. On February 4th.

18 Q. And on February 4th, did you again attempt to

19 raise latent fingerprints?

20 A. I did.

21 Q. And did you succeed?

22 A. I did.

23 Q. Can you please tell us where you were successful

24 in obtaining latent prints?

25 A. There was a cabinet as you reach the top of the

26 stairs on the left side, and I dusted the surface of that,

27 like the table top area, and retrieved some on that

28 table top.

Page 421

1 And then also on one of the other bedroom doors

2 that had a Tarzan insignia on the outside of the door. And

3 I got that off the door frame on the exterior, and also

4 off — I guess you would call it a doorjamb on the latch

5 side. And that’s it.

6 Q. Okay. Ma’am, with regard to the notes you’ve

7 reviewed, how many pages are there? Because looking over

8 your shoulder, it says 28 of 28.

9 A. These notes I’ve taken out of order and put them

10 in a more reasonable way for me to find them here.

11 Q. Well, is it fair to say that there’s 28 pages of

12 notes?

13 A. There’s nine of these.

14 Q. But when you say these, you’re referring to those

15 to which we just made reference; is that correct?

16 A. Correct.

17 Q. Just for the record, I’d like to place — you

18 just show me a place you’re comfortable with me placing the

19 exhibit tag, ma’am, so I don’t —

20 A. Anywhere that it doesn’t cover my writing.

21 Q. How’s this?

22 A. That’s fine.

23 MR. FELDMAN: For the record, in the lower

24 right-hand corner, Your Honor, of what appears to be page

25 20 of the witness’ notes, and it would subsume all of the

26 subsequent documents.

27 Ma’am, there’s other notes, though, to the left

28 of where you’ve just — where I’ve just put the

Page 422

1 exhibit label; is that correct?

2 A. That’s correct.

3 Q. Do those notes reflect other latent lifts?

4 A. Yes.

5 MR. FELDMAN: I’d ask to have marked as defense

6 next in order, H, her series of notes concerning those

7 other latent lifts.

8 THE COURT: Any objection?

9 MR. CLARKE: Only what I’ve voiced previously

10 about it being beyond the scope, Your Honor.

11 THE COURT: Okay. I’ll allow it.

12 MR. FELDMAN: Again I just want to, wherever —

13 THE WITNESS: Right there.

14 MR. FELDMAN: Right there?

15 THE WITNESS: Turn it sideways, maybe.

16 BY MR. FELDMAN:

17 Q. Can you tell me now with regard to the next set

18 of notes, which are marked as defendant’s exhibit H, where

19 did those lifts come from?

20 A. Those came from the black Toyota 4-Runner with

21 California license plate 4SFN016.

22 THE COURT: This is beyond the scope. I thought

23 it came from the home. Apparently it comes from something

24 else.

25 MR. FELDMAN: I concede.

26 THE COURT: But you promised me — you didn’t

27 promise me. You represented if we had the break we’d

28 shorten this.

Page 423

1 MR. FELDMAN: That’s right. And guess what?

2 Thank you very much. I have no further questions.

3 THE COURT: Do you have any questions?

4 MR. CLARKE: I’m almost speechless, but not

5 quite.

6 THE COURT: I didn’t think so. Go ahead.

7

8 REDIRECT EXAMINATION

9 BY MR. CLARKE:

10 Q. Ms. Savage, with regard to the use of this

11 Hemastix — am I pronouncing it correctly?

12 A. Yes.

13 Q. Is that a test that is presumptive for the

14 presence of just human blood?

15 A. No.

16 Q. Tell us about it.

17 A. Hemastix will tell us for certain if there’s no

18 blood, but it tests positive to a variety of things. It

19 will test positive to any type of blood, whether it’s human

20 or animal. It will test positive to a rust stain. It will

21 test positive to the specs that flies leave behind.

22 Anything that might contain blood-like elements.

23 Q. Would it test positive to a dog, for instance

24 dog blood?

25 A. Yes.

26 Q. Incidentally, these stains in the stairway, were

27 they collected by you?

28 A. Yes.

Page 424

1 Q. And available — and were they collected by you

2 for further testing?

3 A. Yes.

4 Q. Is the same also true for the stain on the

5 beanbag?

6 A. Yes.

7 Q. And also the stain — I’m sorry.

8 A. Can I back up a little bit?

9 Q. Sure.

10 A. I collected the entire beanbag chair, not just

11 the stain specifically.

12 Q. So the stain was collected in the sense that the

13 entire bag was collected?

14 A. Correct.

15 Q. So the stain was actually not underneath the

16 beanbag; is that correct?

17 A. It’s on the beanbag.

18 Q. And, lastly, the stain — I believe you described

19 was it one in the area leading from the garage to the door

20 outside of the garage, that was collected, as well?

21 A. Yes.

22 Q. Lastly, with regard to — and I think you had

23 described the fact that there had been vacuuming of the

24 stairway; is that correct?

25 A. Yes.

26 Q. Did that occur before or after you were completed

27 with your examination of the stairway?

28 A. That was after I was finished with the stairway.

Page 425

1 MR. CLARKE: Thank you. No further questions,

2 Your Honor.

3 THE COURT: Counsel?

4

5 RECROSS-EXAMINATION

6 BY MR. FELDMAN:

7 Q. The issue of the Hemastix, is that something you

8 talked about over the break?

9 A. I think maybe how to say it.

10 Q. What do you mean how to say it?

11 A. How to say Hemastix. And whether it was like

12 only for human blood, if it could tell if it was

13 human blood.

14 Q. Did you have any reason to believe that somebody

15 cut up the Van Dam’s dog to cause it to bleed?

16 MR. CLARKE: Objection. Argumentative,

17 Your Honor.

18 THE COURT: Sustained, counsel.

19 BY MR. FELDMAN:

20 Q. Did you receive any information that the

21 Van Dam’s dog might have been bleeding?

22 A. No.

23 MR. FELDMAN: No further questions.

24 THE COURT: Anything further?

25 MR. CLARKE: No. Thank you.

26 THE COURT: You’re excused. Thank you.

27 MR. FELDMAN: This witness —

28 THE COURT: Subject — I know. Subject to

Page 426

1 recall.

2 Make sure that your notes go to the D.A.’s

3 office.

4 THE WITNESS: Thank you.

5 THE COURT: That’s G and H. Same order pertains

6 to them as pertains to the other notes.

7 Next witness.

8 MR. CLARKE: Yes, Your Honor. Annette Peer.

9 THE COURT: Okay. Make sure that the previous

10 witness is admonished. I forgot to. If you want to bring

11 her back. Not to watch television, media. Want to go get

12 her?

13 MR. FELDMAN: She’s here.

14 THE BAILIFF: She’s right here.

15 THE COURT: Oh, there you are. I’m sorry.

16 I forgot to admonish you that until you’re

17 released from this hearing, you’re not to discuss your

18 case — certainly you can talk to the attorneys about it,

19 but you’re not to discuss your case with anyone or view any

20 media or listen to any media reports of this case, okay?

21 THE WITNESS: Okay, Your Honor.

22 THE COURT: Thank you very much.

23 Ms. Peer, is that you? Raise your right hand.

24

25 Annette Peer,

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

27 having been first duly sworn, testified as follows:

28 /////

Page 427

1 THE COURT: Thank you. Please take the stand.

2 And you heard the admonition I just gave to your

3 colleague?

4 THE WITNESS: Yes, Your Honor.

5 THE COURT: I’ll give you the same one, okay?

6 That will stop me from forgetting.

7 Go ahead. Tell us your name, please.

8 THE WITNESS: Annette Lynn Peer.

9 THE COURT: And your last name is spelled?

10 THE WITNESS: P-E-E-R.

11 THE COURT: Thank you. Go ahead.

12

13 DIRECT EXAMINATION

14 BY MR. CLARKE:

15 Q. Actually, perhaps you could spell your first and

16 middle names, as well?

17 A. Annette, A-N-N-E-T-T-E, Lynn, L-Y-N-N.

18 Q. Ms. Peer, who are you employed by?

19 A. San Diego Police Department.

20 Q. How long have you been an employee of the

21 San Diego Police Department?

22 A. Approximately 19 years.

23 Q. What is your particular assignment at the

24 police department?

25 A. I work in the forensic biology unit of the

26 crime laboratory.

27 Q. By forensic biology, does that include

28 DNA testing?

Page 428

1 A. Yes, it does.

2 Q. Could you describe for the court, please, your

3 formal education, training and experience that has led you

4 to your current position in the forensic biology section of

5 the San Diego police?

6 A. Yes. I attended southwestern college for

7 approximately two and a half years, receiving my general

8 education. I transferred to California state university at

9 Long Beach, where I received a bachelor’s of science degree

10 in criminalistics.

11 I was employed by the City of San Diego as a

12 laboratory technician and a chemist for approximately

13 one year. I then transferred to the police department as

14 assistant criminalist. I was promoted to criminalist after

15 approximately two years, where I’ve been employed, as I

16 said, for 19 years.

17 During those 19 years, I have worked

18 approximately 16 of those years working with biological

19 materials, formerly an area called serology. Recently it’s

20 been re-termed forensic biology. I’ve also done two years

21 in drug analysis. And I worked for one year as a

22 laboratory supervisor.

23 Q. During the years that you worked — and I believe

24 you used the term serology; is that correct?

25 A. Yes.

26 Q. What is serology?

27 A. Serology was — considered the science of

28 biological fluids and stains.

Page 429

1 Q. Did it involve testing samples, for example, for

2 the ABO types in let’s say a blood stain?

3 A. Yes, it did.

4 Q. As well as proteins and enzymes?

5 A. Yes, it did.

6 Q. Could you tell us — well, first of all, during

7 that period — what period of time were you a serologist?

8 A. The first year and a half of my employment, and

9 then two years as drug analyst, and then approximately

10 another six years in serology.

11 Q. Did you have occasion then to perform, as a

12 serologist now, not DNA analyst, did you have occasion to

13 perform testing of various biological fluids and samples in

14 actual case work for the San Diego police?

15 A. Yes, I did.

16 Q. Did there then come a time that you became a

17 DNA analyst in the forensic biology section?

18 A. Yes, I did.

19 Q. When did that occur?

20 A. In approximately 1990 I left supervision to go

21 into the DNA analysis field. The San Diego

22 Police Department received funds to start their own

23 DNA laboratory. Dr. Patrick O’Donnell and I were tasked

24 with the duty of setting up the first DNA laboratory in

25 San Diego county.

26 Q. Did the San Diego Police Department laboratory

27 begin DNA testing at any point in time?

28 A. Yes, they did.

Page 430

1 Q. When was that?

2 A. I believe it was in July of 1992.

3 Q. Have you been a DNA analyst then for

4 approximately 10 years in that laboratory?

5 A. Yes, I have.

6 Q. Could you describe for the court specifically

7 what training and experience you have had that leads you to

8 the position of DNA analyst?

9 A. I’ve received numerous training courses. One was

10 four weeks at the FBI academy in Quantico, Virginia on

11 DNA typing methods. I’ve had a number of one-week courses

12 through the California criminalistics institute.

13 During the course of myself and

14 Dr. Patrick O’Donnell setting up the laboratory, we

15 performed a number of validation experiments on various

16 biological fluids and stains. I took post graduate courses

17 in genetics, bio-chemistry and molecular biology to prepare

18 for that position.

19 Q. Have you then actually performed case work DNA

20 analysis for the time period since 1992 in which the

21 San Diego Police Department has provided that testing

22 service?

23 A. Yes, I have.

24 Q. Have you previously testified as an expert in the

25 courts of this county in the analysis of biological samples

26 for DNA profiles, their comparison and statistical

27 estimates of the rarity of matching profiles?

28 A. Yes, I have.

Page 431

1 Q. On approximately how many occasions?

2 A. I’d say approximately 25 to 40 times.

3 Q. Ms. Peer, did you play — or rather, if I could

4 rephrase that, were you assigned to play a role in the

5 investigation of the disappearance of Danielle Van Dam?

6 A. Yes, I was.

7 Q. As part of that, were you directed to conduct a

8 search of a specific motorhome?

9 A. Yes, I was.

10 Q. Can you tell us, first of all, what date that

11 was?

12 A. There were actually three dates that I was in

13 attendance at the motorhome. I believe it was

14 February 5th, February 6th and February 8th.

15 Q. First of all, in terms of the motorhome, was it a

16 motorhome identified to you as belonging to a

17 David Westerfield?

18 A. Yes, it was.

19 Q. Was there an occasion in which you conducted a

20 search of that motorhome for biological evidence inside

21 that motorhome?

22 A. Yes, there was.

23 Q. What date did that occur or dates?

24 A. February 6th and February 8th.

25 Q. On February 6th — first of all, do you recall

26 approximately what time of the day you began that search?

27 A. I don’t recall immediately, but it is in my

28 notes.

Page 432

1 Q. Do you recall if it was morning, afternoon,

2 nighttime?

3 A. I believe it was in the afternoon.

4 Q. What was the purpose of your entering the

5 motorhome?

6 A. I was asked to search for biological materials.

7 Q. Where was the motorhome located?

8 A. Which date?

9 Q. Well, let’s take February 6th. I think you said

10 that was the first search you conducted for the presence of

11 biological material; is that correct?

12 A. That’s correct.

13 Q. Where was it located at that time?

14 A. It was located at the San Diego

15 Police Department’s eastern division at the vehicle impound

16 area.

17 Q. Did you, in fact, conduct a search of the inside

18 of that motorhome for any biological material?

19 A. Yes, I did.

20 Q. Can you describe to us the results of that

21 search?

22 A. The search on February 6th mostly involved

23 searching for blood. There were numerous dark stains,

24 red brown stains, brown stains, reddish stains that I

25 observed during the course of the examination. When I came

26 across a stain, I would mark that area for future testing.

27 Once I had tested or found approximately 19 areas of the

28 motorhome, I began a chemical test for the presence of

Page 433

1 blood.

2 Q. Did you examine each of these approximately

3 19 areas by using this chemical test for the presence of

4 blood?

5 A. Yes. Each stained area that I had marked for

6 testing was, in fact, tested.

7 Q. This test for the presence of blood, we’ve heard

8 the term, the court has heard the term Hemastix. Is that

9 what you utilized, as well?

10 A. No. That’s not what I used.

11 Q. What did you utilize?

12 A. A test called phenylthaline.

13 Q. I was afraid that was it. Could we have the

14 spelling of that, perhaps later at the break?

15 A. Yes.

16 Q. Did you then conduct this phenylthaline test on

17 these approximately 19 stains?

18 A. Yes, I did.

19 Q. With what results?

20 A. Of the 19 stains, 3 gave positive results.

21 Q. What action did you take with regard to those

22 stains?

23 A. They were physically collected, removed from

24 wherever they were, and they were packaged into paper

25 bindles and then into envelopes and labeled by me.

26 Q. By you personally?

27 A. Yes.

28 Q. Did you have occasion to, that is amongst those

Page 434

1 three stains, obtain a positive result on the stain on

2 carpet inside the motorhome located near the closet in the

3 area between the door and the bed?

4 A. Yes, I did.

5 Q. And you seized that particular stain after it

6 produced a positive result?

7 A. Yes, I did.

8 Q. Did you give it a specific number when you were

9 packaging and labeling this evidence?

10 A. No. Not at that time. It was numbered later.

11 Q. How did that come about, just in terms of the

12 chronology at this point, that is the numbering system?

13 A. Sometime within several days to a week,

14 forensic specialist Karen Lealcala and I had a conversation

15 about what those item numbers would be on the stains that

16 I — the stains and substrate controls that I had

17 collected.

18 Q. Is this because there were a number of items

19 collected by you and Ms. Lealcala in the course of the

20 search of the motorhome and other locations, as well?

21 A. Yes. That’s correct.

22 Q. Did that particular stain then later was it given

23 a specific number?

24 A. Yes, it was.

25 Q. What was that?

26 A. I believe it was item number 84.

27 Q. And I’m sorry. You may have already answered

28 this, but did you, in fact, label item number 84 with its

Page 435

1 description of where it was located, the fact that you

2 obtained it and so forth?

3 A. Yes, I did.

4 Q. And was it ultimately impounded at the San Diego

5 Police Department for any further analysis?

6 A. Yes, it was.

7 Q. Now, I’d like to take — draw your attention

8 specifically to DNA testing. Did you conduct DNA analysis

9 with respect to evidence items in this particular case

10 involving Mr. David Westerfield and the disappearance of

11 Danielle Van Dam?

12 A. Yes, I did.

13 Q. In particular, did you conduct DNA analysis on

14 the carpet stain that I believe you described as labeled

15 item number 84?

16 A. Yes, I did.

17 Q. Did you also conduct DNA analysis on what was

18 identified to you as a stain from a jacket labeled number

19 94-D-2?

20 A. Yes, I did.

21 Q. Was that particular item — and first of all, did

22 you have to obtain that item for purposes of your testing

23 from another location?

24 A. Yes, I did.

25 Q. How does that work, just so we can get an idea?

26 A. I was informed verbally by criminalist

27 Sean Soriano that the stains would be in one of our locked

28 freezers, in a sealed envelope.

Page 436

1 Q. Did you obtain it from that location?

2 A. Yes, I did.

3 Q. What about stain number 84 from the carpet that

4 you yourself had seized?

5 A. That stain since the moment it was collected from

6 the motorhome stayed in my custody in the forensic biology

7 unit.

8 Q. Then were you able to obtain that, obviously,

9 since it was in your own custody, for purposes of your

10 DNA analysis?

11 A. Yes, I was.

12 Q. The particular DNA analysis that you conducted on

13 these samples, can you describe what that technology is

14 referred to as?

15 A. At this time it’s a PCR-based test, and the

16 genetic markers that are tested for are referred to as

17 STR’s.

18 Q. Just so we can back up with a couple of these

19 terms. You say a PCR-based technology. What does that

20 mean?

21 A. PCR stands for polymerase chain reaction. It

22 involves a — what’s commonly termed as a molecular

23 xeroxing of target areas of DNA.

24 Q. And once you utilize this process, PCR process,

25 then what do you do, in a nutshell?

26 A. Then it is run through an instrument, and results

27 come out of that instrument, and I interpret those results

28 and formulate conclusions.

Page 437

1 Q. You’ve also utilized the term STR. What does

2 that mean?

3 A. It stands for short tandem repeats.

4 Q. Is this a technology that’s used only by the

5 San Diego police department in DNA analysis?

6 A. No, it is not.

7 Q. Is it used in other laboratories in the

8 United States?

9 A. Yes, it is.

10 Q. It is used, for example, by the federal bureau of

11 investigation?

12 A. Yes, it is.

13 Q. Is it used worldwide?

14 MR. FELDMAN: Objection. Relevance. Your Honor,

15 this is not the form for the Kelly challenges, if that’s

16 what counsel’s anticipating.

17 THE COURT: Well, as long as —

18 MR. FELDMAN: I’m not going to raise the

19 objection.

20 THE COURT: He’s not going to have any objection.

21 Go ahead.

22 MR. CLARKE: Thank you, Your Honor.

23 MR. FELDMAN: I’m going to object to relevance.

24 I’m not making a Kelly objection.

25 THE COURT: Well, what I’m going to do is I’m

26 going to allow the answer to stand, but ask that we not

27 pursue this avenue any further, just like I did with

28 counsel on the other side.

Page 438

1 MR. CLARKE: Very good, Your Honor.

2 Q. With regard to this STR technology, did you

3 obtain DNA profiles from both the carpet stain number 84

4 as well as the stain from the jacket labeled 94-D-2?

5 A. Yes, I did.

6 Q. Did you also have occasion in the course of your

7 testing to test known samples to make comparisons of

8 profiles with the two items of evidence that you’ve just

9 described?

10 A. Yes, I did.

11 Q. What known samples were you provided for purposes

12 of DNA analysis?

13 A. I was provided reference mouth swabs from

14 Brenda Van Dam, Damon Van Dam and David Westerfield.

15 Q. Were you also provided any other evidence to act

16 as a known sample or a type of known sample?

17 A. Yes, I was.

18 Q. What was that?

19 A. A pair of underpants.

20 Q. With regard to the underwear, where were those

21 underwear from?

22 A. They were collected from the victim’s bedroom.

23 Q. Did you also — or were you able to develop

24 genetic profiles from the known samples of Brenda and

25 Damon Van Dam, as well as the underwear?

26 A. Yes, I was.

27 Q. In particular, just with regard to the underwear,

28 the underwear, obviously, is an article of clothing. How

Page 439

1 did you obtain a DNA profile from that underwear?

2 A. I went to an area on the underwear which would

3 commonly be a collection point for biological material. In

4 particular, on this there was a yellowish stain that was

5 observed on the inside crotch area of the underwear. It

6 would be a natural area where drainage would occur from a

7 vaginal area.

8 Q. Is that a source of genetic, that is biological

9 material, that you have obtained or others have obtained

10 from like samples in the past?

11 A. Yes, it is.

12 Q. Is that a fairly common source, for example, in

13 sexual assault cases, for example?

14 MR. FELDMAN: Objection. Relevance.

15 THE COURT: Overruled.

16 THE WITNESS: Yes, it is.

17 BY MR. CLARKE:

18 Q. Now, in particular, you obtained results from all

19 five of these items, the carpet stain, the jacket stain,

20 the two samples from Brenda and Damon Van Dam, and from the

21 underwear; is that correct?

22 A. That’s correct.

23 Q. Did you then make comparisons of those results?

24 A. Yes, I did.

25 Q. With what results?

26 A. That the stain from the carpet and the stain from

27 the jacket were of a similar source or highly likely from

28 the same source as the source of the DNA on the inside

Page 440

1 crotch area of the underwear.

2 I also determined that those three items could

3 also be the result of a biological offspring of

4 Brenda Van Dam and Damon Van Dam.

5 Q. All right. Could you tell us what you mean by

6 that last portion in terms of the “could be from a

7 biological offspring?” What do you mean by that?

8 A. DNA is inherited from your biological parents.

9 You get half of your DNA from your mother and half from

10 your father. And in the cases where there isn’t a known

11 reference sample available, a lot of times biological

12 parents references are used. Their DNA is tested and their

13 types are observed, and if it is compared to an unknown or

14 to a secondary reference, like the underwear is,

15 the — there are types that are developed, determine if

16 those types could have been the result of DNA passed on

17 from a biological mother and father.

18 Q. So is it correct then that your DNA analysis of

19 the parents’ DNA was consistent with an offspring of those

20 parents having left those genetic profiles in the stain

21 found in the underwear?

22 A. That’s correct.

23 Q. And is it also correct that the profiles from the

24 carpet stain, the jacket stain and the underwear stain all

25 matched each other?

26 A. Yes, they do.

27 Q. Now, lastly, Ms. Peer, with respect to the

28 profile obtained from those three locations, that is,

Page 441

1 again, the carpet stain, the jacket stain and the underwear

2 stain, what are the chances of an unrelated person chosen

3 at random from the community having the same genetic

4 profile as found from those three items?

5 A. Well, I’ll have to break up the statistical

6 frequencies into the carpet sample and into the jacket

7 stain.

8 Q. All right. Could you explain why?

9 A. The reason is that there were fewer genetic

10 markers at that time that this report was generated, fewer

11 genetic markers were recovered from the carpet stain as the

12 jacket stain. Therefore, the statistical frequency is

13 going to be a little different on those two items.

14 Q. Okay. Let’s break it up into two then. With

15 respect to the jacket stain, can we start there?

16 A. Yes.

17 Q. All right. And the jacket stain matched the

18 profile from the underwear; is that correct?

19 A. That’s correct.

20 Q. What are the chances of an unrelated person

21 chosen at random from major populations matching that

22 profile shared by the jacket stain and the stain from the

23 underwear?

24 A. In the Caucasian population, approximately 1 in

25 25 quadrillion.

26 Q. How many zeros is that after a 25, just so we’re

27 clear?

28 A. Approximately 15.

Page 442

1 Q. 15 zeros?

2 A. (Witness nods head).

3 Q. All right. Did you also make a similar

4 calculation for individuals selected from the

5 African-American population?

6 A. Yes, I did.

7 Q. What was that result?

8 A. May I refer to my report?

9 Q. Would that refresh your recollection?

10 A. Yes, it would.

11 Q. Please do so.

12 A. That number would be approximately 1 in

13 340 quadrillion.

14 Q. And then, lastly, do you also calculate an

15 approximate frequency or statistical estimate of the

16 likelihood of finding those matching profiles in the

17 Hispanic community, as well?

18 A. Yes.

19 Q. What was that result?

20 A. That was approximately 1 in 1.2 quintillion.

21 Q. Is that rarer than a quadrillion?

22 A. Yes, it is.

23 Q. Now —

24 THE COURT: Counsel, I know that quint is after

25 quad. Thank you.

26 MR. CLARKE: Very good. I always have to look

27 them up.

28 THE COURT: That’s all right. I didn’t know how

Page 443

1 much zeros when I wrote it down. Go ahead.

2 BY MR. CLARKE:

3 Q. Now, if I could focus your attention on the stain

4 from the carpet, the one that you seized. Did you also

5 make a statistical analysis, that is estimate of the rarity

6 of the profiles matching each other from the carpet stain

7 and, again, the stain from the underwear?

8 A. Yes, I did.

9 Q. I believe you said that there was some difference

10 in the profile from the jacket stain. Could you explain

11 that, please?

12 A. There were no differences. All genetic markers

13 that were present were identical. There were just fewer

14 that were of a usable quantity for statistics.

15 Q. So is it correct then that with regard to the

16 carpet stain, you were unable to develop as much

17 information in terms of genetic profile from the carpet as

18 opposed to the jacket?

19 A. Yes. At the time that this report was written,

20 yes.

21 Q. Has that changed since then?

22 A. Yes, it has.

23 Q. Has further testing done anything to exclude the

24 donors being the same, that is the same from the carpet,

25 the jacket and the underwear?

26 A. No, it has not.

27 Q. To return to your results that you obtained

28 previously before this further information was developed,

Page 444

1 was there a similar statistical estimate made for the

2 likelihood of these matching profiles from those same

3 three major population groups?

4 A. Yes, there was.

5 Q. All right. Could you describe those in the

6 Caucasian population?

7 A. Yes. It was determined to be 1 in 4.9 billion.

8 Q. Billion with a B as in boy?

9 A. That’s correct.

10 Q. All right. What about the African-american

11 population?

12 A. Approximately 1 in 21 billion.

13 Q. And, lastly, the Hispanic population?

14 A. 1 in 98 billion.

15 Q. Would the subsequent testing that you’ve

16 described, will those statistical estimates become rarer

17 when you recalculate them with the newest results that

18 you’ve obtained?

19 A. The carpet stain will become much rarer.

20 MR. CLARKE: Thank you. I have no further

21 questions.

22 THE COURT: Counsel?

23

24 CROSS-EXAMINATION

25 BY MR. FELDMAN:

26 Q. Can you tell me, please, with regard to your

27 seizure of the stains, where did the stains come from? Not

28 on the jacket. From the motorhome.

Page 445

1 A. There was one stain that was taken from a

2 curtain, one stain that was taken from the corner of a

3 bedspread, and the third stain that has been referred to

4 has been on the carpet.

5 Q. Where on the carpet, ma’am?

6 A. It was between the closet and the bathroom, on

7 the floor.

8 Q. And how big a stain was it?

9 A. I’d say — my recollection was maybe — before it

10 was tested, probably about maybe approximately a

11 quarter inch in diameter.

12 Q. All right. And are you in a position to tell us

13 how old that stain was?

14 A. No, I am not.

15 Q. So you can’t tell us when it might have been put

16 there; is that right?

17 A. That’s correct.

18 Q. Could have been there a year?

19 A. It’s possible.

20 Q. And you told us that when you got the carpet

21 sample, you kept — if I understand you correctly, ma’am,

22 when you got the carpet sample, you kept it yourself, you

23 retained possession of it the whole time?

24 A. That’s correct.

25 Q. Where did you put it?

26 A. It was in — kept in an evidence refrigerator in

27 the forensic biology unit.

28 Q. And who had access to that other than you?

Page 446

1 A. Well, other analysts in the forensic biology unit

2 and supervisors of the laboratory can gain access to that

3 area, but it was stored in a sealed brown paper bag.

4 Q. But it sounded as though you had indicated that

5 you had stored this particular item of evidence in a manner

6 different than you would store other pieces of evidence.

7 A. No. When something remains in my custody, that’s

8 the area it will be stored.

9 Q. You made reference earlier to notes. Have you

10 taken notes with regard to your activities?

11 A. Yes, I have. I have quite a few notes.

12 Q. And did you review those notes prior to

13 testifying today?

14 A. Some of them, yes.

15 Q. And you reviewed them for the purpose of

16 assisting you in testifying; is that right?

17 A. That’s correct.

18 MR. FELDMAN: Your Honor —

19 THE COURT: H.

20 MR. FELDMAN: H or I?

21 THE CLERK: I.

22 THE COURT: I. I knew where you were going. I

23 just had the wrong number.

24 BY MR. FELDMAN:

25 Q. Ma’am, I’m giving you a label and asking you —

26 you’ve got what appears to me to be a gray sort of binder.

27 Is that a fair statement?

28 A. Yes.

Page 447

1 Q. But it also looks like there is a couple others;

2 is that correct, two others; is that correct?

3 A. That’s correct.

4 Q. Okay. Do these three containers contain all of

5 your notes in connection with this case?

6 A. Not all of them, no.

7 Q. There’s other notes?

8 A. Yes.

9 Q. And where are those notes?

10 A. In another gray folder.

11 Q. And did you look at those notes or review those

12 notes prior to coming to court to testify in this case?

13 A. No, I did not.

14 Q. What did you take the notes for?

15 MR. CLARKE: Objection. Argumentative.

16 THE COURT: Sustained.

17 MR. FELDMAN: I’d ask to have marked as defense

18 next in order what she’s got with her at counsel table,

19 which is, I believe — and, ma’am, I just want to put this

20 here if it doesn’t adversely affect any of your work

21 product. Is that okay?

22 THE WITNESS: That’s okay.

23 Your Honor, will this mean my notes will be

24 taken?

25 THE COURT: That means that they’ll be given to

26 the district attorney. They’ll photocopy them.

27 MR. CLARKE: Then return them to the witness.

28 THE COURT: Then return them to you.

Page 448

1 Absolutely.

2 THE WITNESS: Okay. Thank you, Your Honor.

3 THE COURT: You’re not going to be without your

4 notes. I know that.

5 BY MR. FELDMAN:

6 Q. I think you told us, ma’am, there were three

7 separate stains. You told us now that — I thought the one

8 you said was on the carpet. I’m sorry. I apologize. I

9 forgot what you described in terms of size.

10 A. From memory, I believe it was approximately a

11 quarter inch diameter.

12 Q. Can you tell whether it was smeared or dropped or

13 spattered in any way?

14 A. No. It appeared somewhat circular, but I

15 couldn’t determine any of those others.

16 Q. Do you have training in blood spatters?

17 A. Yes, I do.

18 Q. With regard to the other — I think you said

19 there were two other stains; is that right, ma’am?

20 A. Yes.

21 Q. Can you describe the precise location of the

22 two other stains, please?

23 A. One was on the curtains in the front of the

24 motorhome on the driver’s side, and the other one was from

25 a bedspread.

26 Q. With regard to the one on the curtains in front

27 of the motorhome on the driver’s side, how big a stain was

28 that?

Page 449

1 A. May I refer to my notes?

2 Q. Please.

3 A. The stain is a bit smeared, but it appears that

4 it is approximately 2 to 3 millimeters.

5 Q. Okay. You’re looking at photographs; is that

6 correct?

7 A. That’s correct.

8 Q. Have you provided the district attorney’s office

9 with copies of these photos?

10 A. No, I have not.

11 Q. Okay. But they’re part of defense exhibit I now;

12 is that correct, ma’am?

13 A. Yes, it is.

14 THE COURT: Within a reasonable period of time,

15 I’m not exactly sure what that means, I’d like you to make

16 available to the district attorney’s office whatever

17 pictures and notes you have of your investigation, okay?

18 THE WITNESS: Yes, Your Honor.

19 THE COURT: Thank you. And then the D.A. will

20 within a reasonable period of time give them to the

21 defense.

22 MR. FELDMAN: Excuse me just one second.

23

24 (Discussion off record.)

25

26 BY MR. FELDMAN:

27 Q. You describe one of the stains was on a curtain

28 on the driver’s side. Could you please be more specific as

Page 450

1 to where that curtain was? Was it, you know, in the front

2 of the motorhome, in the back of the motor home? Where was

3 it? Do you recall?

4 A. It was in the front of the motorhome.

5 Q. So would it have been a curtain that would have

6 covered across the front window or would it be one that

7 would have covered along side?

8 A. The front window. Actually I think it went from

9 the front all the way to the side where the driver is.

10 Q. The stain?

11 A. No. No. The curtains.

12 MR. FELDMAN: Your Honor —

13 THE COURT: Yes.

14 MR. FELDMAN: Because this is only the

15 preliminary hearing, because the burden of proof on the

16 prosecution at this hearing is so slight, because we do not

17 believe that this is the appropriate forum within which to

18 challenge this witness’ DNA findings, and because we

19 decline to provide the prosecution with what our strategy

20 will be at trial in terms of attacking this witness’

21 conclusions, we will wait until trial to attack these

22 findings, and at this time I have no further questions.

23 THE COURT: Thank you for the insight.

24 Counsel, do you have anything?

25 MR. CLARKE: My comments are much shorter,

26 Your Honor. No further questions.

27 THE COURT: Thank you. You’re excused.

28 THE WITNESS: Thank you, Your Honor.

Page 451

1 THE COURT: Counsel?

2 MR. DUSEK: Jeff Graham.

3 THE COURT: All right. May we excuse this

4 witness or is she subject to recall?

5 MR. FELDMAN: We still got the notes issue, but I

6 have no objection to excusing her.

7 THE COURT: Okay. You’re excused. So remember

8 the admonition about not watching television? You can

9 watch television.

10 All right. Where’s Mr. Graham? One of the

11 bailiffs —

12 MR. DUSEK: Hopefully out in the hallway.

13 THE COURT: Somebody want to go get Mr. Graham?

14 I bet she can make her way out. See, I didn’t realize you

15 were working both ends of the room. I got you.

16 Mr. Graham, raise your right hand.

17

18 Jeffrey Graham,

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

20 having been first duly sworn, testified as follows:

21

22 THE COURT: Please take the stand.

23 Tell us your name, please, and spell your first

24 and your last.

25 THE WITNESS: My name is Jeffrey Brent Graham,

26 Jr. J-E-F-F-R-E-Y. My last name, G-R-A-H-A-M.

27 THE COURT: Okay.

28 /////

Page 452

1 DIRECT EXAMINATION

2 BY MR. DUSEK:

3 Q. How are you employed, sir?

4 A. I’m a latent print examiner with the San Diego

5 Police Department crime laboratory.

6 Q. What do you do?

7 A. I compare crime scene prints, prints from

8 evidence, to prints of known individuals, and determine if

9 I can make an identification.

10 Q. How long have you been doing that?

11 A. For five and a half years now.

12 Q. Would you give us your educational background for

13 that position?

14 A. I have an associates of science degree from

15 Grossmont college in evidence technology. I have

16 approximately 400 hours in training from the FBI, the

17 California criminalistics institute, and the department of

18 justice California, as well as other professionals in the

19 business.

20 Q. Anything else?

21 A. There’s something else, yes.

22 THE COURT: You worked for a long time, I would

23 imagine.

24 THE WITNESS: Yeah. Before I started with the

25 San Diego Police Department crime lab, I also worked with

26 the Santa Monica PD as an identification technician. Prior

27 to that I did an eight-month internship with the El Cajon

28 PD crime laboratory. Before that I did a 14-month

Page 453

1 internship with the San Diego PD.

2 BY MR. DUSEK:

3 Q. In comparing fingerprints, is there a basic

4 concept that underlies the science?

5 MR. FELDMAN: Objection. Assumes fact not in

6 evidence, that it’s a science.

7 THE COURT: Overruled. I realize there’s a

8 recent case, but it’s not binding on me. Overruled.

9 THE WITNESS: Two premises. That prints are

10 unique and permanent.

11 BY MR. DUSEK:

12 Q. Are you familiar with the term “known print?”

13 A. Yes, I am.

14 Q. What’s that?

15 A. It’s an intentional recording of the

16 friction ridge skin that’s on the hands, also on the feet

17 of an individual. So it’s taken in a controlled

18 environment using typically black printer’s ink and a white

19 color for contrast.

20 Q. So we know where the print comes from and who it

21 comes from?

22 A. Yes.

23 Q. Are you familiar with the term “latent print?”

24 A. Yes, I am.

25 Q. What does that mean?

26 A. A latent print — latent itself means invisible

27 or nearly invisible. In the business we refer to

28 latent prints as the prints that we recover from either

Page 454

1 evidence or vehicles or at crime scenes.

2 Q. When you compare a latent print to see if it

3 matches a known print, do you use any tools or equipment?

4 A. Magnifying glass. Possibly a stereo microscope.

5 Q. Basically describe for us what you do when you

6 make the comparison.

7 A. The first step actually is an analysis. That’s

8 with the magnifier or with the microscope. It’s a look at

9 the latent that came off an item or at a crime scene to

10 analyze whether or not there’s enough detail and to get a

11 feel for what type of detail is present.

12 Then we go into the comparison phase where we

13 take the known prints of an individual and actually do a

14 side-by-side comparison of the latent prints to the

15 known prints.

16 Q. In this case were you provided latent prints for

17 a comparison?

18 A. I’ve been provided over 200 latent prints for

19 comparison, yes.

20 Q. Were you able to make a match on one of them?

21 A. I’ve made a match on several, yes.

22 Q. What I’m concerned about is one from a motorhome.

23 Do you recall the one I’m talking about?

24 A. Yes, I do.

25 Q. And was that identified to you in any sort of way

26 on the latent print card?

27 A. Yes.

28 Q. How was it identified?

Page 455

1 A. There are six in total from the motorhome.

2 I believe the one you’re referring to is the one that’s on

3 the cabinet that is on the driver’s side of the bed in the

4 motorhome.

5 Q. And was that labeled?

6 A. Yes, it was.

7 Q. With what sort of notations?

8 A. If I can refer to my notes? I can actually take

9 a Xerox copy of that and tell you. Otherwise — I mean it

10 has a case number. It has Karen Lealcala’s name on it.

11 Q. Would that refresh your memory if you would look

12 at that?

13 A. That would help.

14 Q. Would you look at it, please, sir.

15 A. So it’s from the side of the wood cabinet on the

16 driver’s side of the bed.

17 Q. Were you able to tell who lifted the print?

18 A. Yes.

19 Q. By?

20 A. Karen Lealcala.

21 Q. Do you know which evidence number it had before

22 it was given a fingerprint number?

23 A. I have no idea, no.

24 Q. Were you provided known prints in this case?

25 A. I have known prints of 18 individuals.

26 Q. Were you provided known prints of an individual,

27 at least hand prints from an autopsy, hands from an

28 autopsy?

Page 456

1 A. Yes.

2 Q. How did you get those, sir?

3 A. I went to the medical examiner’s office myself

4 and collected them.

5 Q. When and under what conditions?

6 A. On the 28th of February at 11:52 in the morning I

7 went to the medical examiner’s office and actually looked

8 at the hands myself to determine if I could work with them

9 there in the office. They were too far mummified. So I

10 asked the medical examiner to remove them, and I took them

11 with me back to my office.

12 Q. What did you do with those hands when you took

13 them back to your office?

14 A. Started photography immediately, and then

15 introduced them into a chemical mixture of embalming fluids

16 to attempt to rehydrate the hand.

17 Q. What does that mean?

18 A. Rehydrate them is to get them back to appearing

19 naturally. To rehydrate is add fluids. Similar to a

20 sponge in the kitchen that dries out, they shrivel up and

21 really shrink and everything compresses, but you can

22 re-introduce moisture back into them and they’ll swell back

23 and almost look normal again.

24 Q. Does that change the markings on the

25 fingerprints, this rehydration?

26 A. Rehydration will actually restore them to what

27 would appear to be normal.

28 Q. Were you able to do that in this case?

Page 457

1 A. Yes.

2 Q. Once you completed that rehydration process, what

3 did you do?

4 A. I actually did a silver powder process on the

5 friction ridges that I was able to restore, photographed

6 them, and did a comparison of those ridges to the

7 latent print lift from the motorhome.

8 Q. What are the friction ridges?

9 A. Friction ridges are the skin that’s on the hands,

10 also on the feet. If you look at your hands and feet,

11 you’ll see those lines, and those lines end and they

12 bifurcate and they do many other things, and that’s what

13 I’m looking — what I refer to when I say friction ridges.

14 MR. FELDMAN: I’m sorry. I just couldn’t hear

15 what the witness said.

16 THE COURT: I’ll have the answer read back.

17

18 (Record read.)

19

20 BY MR. DUSEK:

21 Q. So you were able to develop known prints from

22 those severed hands?

23 A. The areas that I was concerned with, yes.

24 Q. Did you compare those known prints with the

25 latent prints you were provided by Ms. Lealcala?

26 A. Yes, I did.

27 Q. What was the result of your comparison?

28 A. Prints from that wood cabinet on the

Page 458

1 driver’s side of the bed in the motorhome were made by

2 Danielle Van Dam.

3 Q. How can you say that?

4 A. How can I say that?

5 Q. Yeah. What’s the basis of your opinion?

6 A. I analyzed the prints, I compared the prints, I

7 evaluated the comparison and made my determination, and

8 then had my identification verified by a second examiner.

9 Q. When you compared the two prints, did you find

10 any dissimilarities?

11 A. No.

12 Q. When you make your comparison, do you alter or

13 change the fingerprint on the latent print card?

14 A. There’s no way to do that.

15 Q. And do you change the print on the known print

16 cards when you make your comparison?

17 A. No.

18 Q. So if I question your identification, would we be

19 able to re-check your work?

20 A. Certainly.

21 Q. How certain are you of the identification?

22 MR. FELDMAN: Irrelevant. Objection. Calls for

23 conclusion.

24 THE COURT: Overruled.

25 THE WITNESS: Absolutely no doubt in my mind that

26 Danielle Van Dam made those prints.

27 MR. DUSEK: Thank you, sir.

28 THE COURT: Questions?

Page 459

1 CROSS-EXAMINATION

2 BY MR. FELDMAN:

3 Q. Sir, is there a difference between point counters

4 and ridgeologists in your business?

5 A. Yes.

6 Q. Are you a ridgeologist or a point counter?

7 A. I’m a ridgeologist.

8 Q. Do the point counters and the ridgeologists agree

9 that there’s a common method to make identifications?

10 A. I hope so, yes.

11 Q. But you don’t know so, do you?

12 A. I’ve worked in other departments where —

13 actually, no. I’ve attended classes with other students

14 who have worked at other departments that may not see the

15 same things that ridgeologists do. However, the

16 methodology I believe is to be the same.

17 Q. I’m sorry. I heard you say the methodology is

18 what?

19 A. I believe is the same.

20 Q. All right. And, sir, are any universities or

21 colleges offering degrees in fingerprints?

22 MR. DUSEK: Objection. Irrelevant.

23 THE COURT: Overruled.

24 THE WITNESS: I really don’t know. I don’t

25 believe so, no.

26 BY MR. FELDMAN:

27 Q. You don’t have a college degree in fingerprints?

28 A. No, I don’t.

Page 460

1 Q. There is no test you take to be a

2 fingerprint examiner, is there?

3 A. There is not.

4 Q. With regard to point counters, is there some

5 consensus within the universe of police officers who do

6 fingerprint analysis as to the number of points you might

7 need of comparison before you can be, what did you say,

8 absolutely certain?

9 A. Absolutely certain.

10 Q. Is there some consensus?

11 A. No.

12 Q. Oh. So then there’s a certain subjectivity as to

13 the certainty; is that right?

14 A. There’s subjectivity, yes.

15 Q. What about ridgeologists? Is there some

16 consensus as to the number of ridges you got to have before

17 you arrive at a conclusion?

18 A. No, there’s not.

19 Q. So there’s no published guidelines, for instance,

20 such as those that might be available in the area of DNA or

21 serology; is that right?

22 A. That’s right.

23 Q. With regard to proficiency training or

24 proficiency studies, do you participate in proficiency

25 training?

26 A. Yes. We have an annual proficiency test in our

27 office.

28 Q. That’s an internal proficiency test, correct?

Page 461

1 A. Yes.

2 Q. I want to know do you participate in external

3 proficiency studies?

4 A. These internal tests we take are provided by an

5 external agency.

6 Q. You understand, don’t you, that there’s a

7 difference between internal proficiency testing and

8 external proficiency testing?

9 A. You maybe have to lay that difference out for me.

10 Q. You’re saying based on your training and

11 experience you do not know the difference between external

12 and internal proficiency, if such exist, correct?

13 A. Internal would be department administered?

14 Q. Yes. That which you’ve taken, department

15 administered, right?

16 A. Yes.

17 Q. External might be administered by an association

18 in Washington, say, that would be necessary to accredit

19 various crime laboratories or examiners. Would you agree

20 with that?

21 A. Yes.

22 Q. Have you taken any tests to become accredited

23 externally from your police department training in the area

24 of fingerprint identification or analysis?

25 A. No, I have not.

26 Q. With regard to the fingerprint that Mr. Dusek was

27 referring you to, do you have a copy of that latent card?

28 A. Yes, I do.

Page 462

1 Q. And you made reference earlier to your notes.

2 Those are notes that you reviewed in connection with your

3 testimony in this case; is that correct, sir?

4 A. Actually the note is the photocopy that I have of

5 the latent print card.

6 Q. All right. Did you review any other notes or do

7 you have any other notes?

8 A. Here on the stand I’ve reviewed no other notes.

9 Q. No. Before coming to court today, did you review

10 anything for the purpose of assisting you in testifying in

11 connection with this case?

12 A. I reviewed my report, yes.

13 Q. Okay. Other than your report, did you

14 review — well, as you were doing the fingerprint analysis,

15 were you taking notes, sir?

16 A. Yes.

17 Q. Did you review those notes?

18 A. I have those notes here, yes.

19 MR. FELDMAN: I’d like to have marked as defense

20 next in order —

21 THE COURT: Wait. Did you review those notes

22 before you testified here today?

23 THE WITNESS: I’ve reviewed those notes

24 extensively in the last two weeks. So yes.

25 THE COURT: Okay. I understand what you’re

26 saying.

27 MR. FELDMAN: May I now please have marked as

28 defense J —

Page 463

1 THE COURT: On the same basis as we’ve done with

2 the others?

3 MR. FELDMAN: Yes, Your Honor. Please.

4 THE COURT: All right. Okay.

5 BY MR. FELDMAN:

6 Q. Sir, it appears as though you’re going to an — a

7 Manila folder. Is that a fair statement?

8 A. Yes.

9 Q. Contained within the Manila folder is what?

10 A. My notes specific to the comparison of these

11 prints here today.

12 Q. What else?

13 A. My report, my subpoena, copy of the latent print

14 envelope, the additional copies of the latent print lifts

15 from that motorhome, my resume, fingerprint accountability

16 card.

17 Q. What’s a fingerprint accountability card?

18 A. That’s the card that the forensic specialist or

19 officers in the field will sign when they introduce

20 latent print envelopes into either our unit or into the

21 deposit box down at the property room.

22 Q. In other words, it’s something that is utilized

23 to protect the integrity of the chain of custody; is that

24 correct?

25 A. Yes.

26 Q. With regard to your notes, could you just

27 put — I don’t want to — what’s going to happen —

28 Your Honor, may I tell him, please?

Page 464

1 THE COURT: Yes, sir. Certainly.

2 MR. FELDMAN: What’s going to happen, sir, is

3 we’re going to mark the notes. You’re going to give them

4 to the district attorney. They’ll be Xeroxed, and you’ll

5 get your originals back.

6 So my having said that, I don’t want to put the

7 exhibit exactly on your notes. Would you mind if might

8 be — maybe you put your notes back in the Manila envelope,

9 and we mark the Manila envelope?

10 THE COURT: Is that satisfactory with you, sir?

11 THE WITNESS: That’s fine with me, yes, sir.

12 THE COURT: Let’s do it.

13 MR. FELDMAN: All right. So now I’ve placed an

14 exhibit tag, defendant’s J, on the witness’ Manila

15 envelope.

16 Q. Sir, I still would like now to direct your

17 attention, please, to the latent print that you’ve

18 identified as belonging to Danielle Van Dam. Do you have

19 that card?

20 A. Yes, I do. Actually I have this Xeroxed copy

21 card.

22 Q. Can you tell me do you make a distinction in

23 terms of orientation of fingerprints?

24 A. Yes, I do.

25 Q. And what does orientation mean to you, sir?

26 A. Basically several things. One is that — the

27 orientation of the print as it appears on the item, and

28 secondary orientation to me is which way is up on the hand,

Page 465

1 as well.

2 Q. Okay. Were you able to form an opinion as to the

3 orientation of the latent print that Mr. Dusek was asking

4 you about?

5 A. Yes.

6 Q. Can you please tell us or illustrate it or

7 articulate it as best you can?

8 A. The orientation is approximately this position.

9 Q. Okay. You’re holding — you said this position.

10 Could you please describe when you’re doing that to

11 articulate this position?

12 A. I’m holding my hand up. My fingers are slightly

13 to the rear of me. If this were the cabinet, that

14 impression would be here on the cabinet, the very lower

15 end.

16 Q. So it looks as though what you’re doing is

17 holding your hand straight up; is that correct?

18 A. Yes.

19 Q. And when you say the orientation, then it would

20 be just straight up; is that right, as though someone had

21 just touched the cabinet, right?

22 A. It’s more tilted than straight up.

23 Q. Slightly tilted? Slightly was my word.

24 I’m sorry, sir. What word would you use to describe the

25 tilt?

26 A. More than slight. Less than perpendicular.

27 Q. And with regard to the location of the lift, do

28 you have to rely upon — can you tell us whether it was on

Page 466

1 the upper or lower cabinet?

2 A. It’s the lower end of the cabinet.

3 Q. And you base that opinion not on — did you see

4 the cabinet or are you basing that opinion on what

5 Ms. Lealcala told you?

6 A. I’m basing that opinion on the sketch that she

7 has on the back of the latent, as well as photographs I’ve

8 seen.

9 Q. Oh, you’ve seen photographs?

10 A. Yes.

11 Q. Do you have copies of those with you, sir?

12 A. No, sir.

13 Q. How far off the floor — I’m sorry — off the

14 ground, when you say the lower cabinet, was the print?

15 A. These cabinets are actually above another

16 stand-type cabinet and right next to the bed. So maybe a

17 foot and a half to two feet from the bed.

18 Q. A foot and a half to two feet from the bed. Do

19 you mean up?

20 A. Up. If I’m laying on the bed, I could put my

21 hand up and touch that cabinet.

22 Q. As though someone might have been playing on the

23 bed and just touched the wall; is that right?

24 MR. DUSEK: Objection. Calls for speculation as

25 to what she was doing on the bed.

26 THE COURT: Sustained.

27 BY MR. FELDMAN:

28 Q. Well, let me ask you this. With regard to the

Page 467

1 orientation, is the orientation consistent with an

2 individual who just happened to be laying on the bed,

3 rolling over and touching the wall? Is that consistent?

4 MR. DUSEK: Same objection as to what she was

5 doing on the bed.

6 THE COURT: Sustained.

7 MR. FELDMAN: Your Honor, reasonable — yes.

8 THE COURT: Sustained.

9 BY MR. FELDMAN:

10 Q. You don’t know how the print got there, do you?

11 A. Danielle Van Dam touched that cabinet.

12 Q. Do you know when?

13 A. No idea.

14 Q. Did you know that she was inside

15 Mr. Westerfield’s house some days before?

16 MR. DUSEK: Objection. Calls for speculation.

17 No foundation of that.

18 THE COURT: Sustained.

19 BY MR. FELDMAN:

20 Q. You said that you matched several prints. When

21 you used the word “several” on direct examination, sir,

22 what number were you meaning to communicate?

23 A. Two to Danielle Van Dam, which are simultaneous

24 touch. So that I’ve identified the left middle, as well as

25 the left ring finger in that touch.

26 Q. I’m sorry. Left middle and left ring?

27 A. Left ring, yes. And I’ve also developed or

28 actually identified prints to two other individuals, two

Page 468

1 prints to each.

2 Q. All right. And those two prints to each, those

3 were basically in the same place, right?

4 A. No.

5 Q. They were in the motorhome, weren’t they?

6 A. Yes.

7 Q. They were around — one was around a window on

8 the motorhome, wasn’t it?

9 A. Yes.

10 Q. In the bedroom area of the motorhome, wasn’t it?

11 A. I believe so, yes.

12 Q. And that was a person known to you; in other

13 words, a person who provided you with known fingerprints;

14 is that correct?

15 A. Yes.

16 Q. That was a young female, right?

17 A. Yes.

18 Q. Was her name Danielle L.

19 A. Yes, it is.

20 Q. And then you also identified another fingerprint

21 belonging to another young lady; is that correct?

22 A. Yes.

23 Q. And that would be Jennifer?

24 A. Yes.

25 Q. But with regard to the fingerprints that were

26 seized at the Van Dam residence, you’ve not been able to

27 make identifications on any of those yet?

28 MR. DUSEK: Objection. Beyond the scope.

Page 469

1 THE COURT: Counsel, that’s beyond the scope.

2 I think it is. Sustained.

3 BY MR. FELDMAN:

4 Q. Are you able to tell us the age of any particular

5 latent print?

6 A. No, I’m not.

7 Q. So those prints could have been there, what, for

8 a year?

9 A. Could have been.

10 Q. You can’t rule that out?

11 A. I really have no idea based on the size, really

12 no idea.

13 Q. But your business doesn’t allow you to render

14 opinions regarding the time a particular print was laid

15 down, because there’s no science on that, is there?

16 A. There’s no scientific way to determine the age.

17 Q. So you can’t tell me with absolute certainty that

18 that fingerprint wasn’t placed there, what you think was a

19 fingerprint, you can’t tell me with absolute certainty that

20 that fingerprint wasn’t placed there we’ll say Tuesday of

21 the week of February 1st?

22 MR. DUSEK: Objection. Argumentative.

23 THE COURT: Sustained. He already said he can’t

24 tell you when that was placed there. Am I correct?

25 THE WITNESS: That’s correct, sir.

26 MR. FELDMAN: No further questions.

27 THE COURT: Anything further?

28 MR. DUSEK: None. Thank you.

Page 470

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

2 More witnesses?

3 MR. DUSEK: Not today.

4 THE COURT: All right. Let me see both — all

5 counsel, whoever wants to come up here. We’re not in

6 recess.

7

8 (Discussion off record.)

9

10 THE COURT: All right. We’re back on the record.

11 All parties agree, all counsel agree that this

12 preliminary hearing will recess until Thursday morning at

13 9:00 A.M. We will not be in session — did I get that

14 wrong?

15 MR. DUSEK: No. You did that very well.

16 THE COURT: I’m glad to hear it.

17 MR. DUSEK: I’m concerned about the right to a

18 continuance preliminary hearing, whether or not he will

19 waive it or whether or not the court will be doing other

20 things.

21 THE COURT: That’s a good question.

22 Sir, you have a right to a continuous

23 preliminary hearing, which, quite frankly, means if you

24 don’t agree, I can sit and do nothing else except who knows

25 what, but I can’t do other court work. Do you understand

26 that?

27 THE DEFENDANT: Yes, sir.

28 THE COURT: Do you give up your right to a

Page 471

1 continuous preliminary hearing and allow me to do whatever

2 they send me tomorrow?

3 THE DEFENDANT: Yes, sir.

4 THE COURT: All right. You concur, counsel?

5 MR. FELDMAN: Yes.

6 MR. BOYCE: Yes.

7 MR. FELDMAN: Thank you.

8 THE COURT: Thank you for pointing that out.

9 All right. Thursday.

10 MR. FELDMAN: Yes, Your Honor.

11 THE COURT: 9:00. Thank you.

12

13 (Whereupon, a recess was taken until Thursday,

14 March 14, 2002 at 9:00 A.M.)

15 ***

16

17

18

19

20

21

22

23

24

25

26

27

28