6 – March 14, 2002 Afternoon – Transcript of David Westerfield preliminary hearing

PRELIMINARY HEARING SAN DIEGO, CALIFORNIA, Thursday, March 14, 2002, 1:35 pm


WITNESSES:
Brenda Van Dam, Peter Damon Van Dam


Page 617

1

2

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

4

5 Brenda Van Dam,

6 Resumed the stand and testified further as follows:

7

8 THE COURT: All right. Ms. Van Dam, you

9 understand you’re still under oath?

10 THE WITNESS: Yes.

11 THE COURT: Okay. Thank you.

12 Go ahead, counsel.

13

14 CROSS-EXAMINATION (Resumed)

15 BY MR. FELDMAN:

16 Q. Good afternoon, ma’am.

17 Over the noon hour did you speak about the case

18 with anybody?

19 A. No.

20 Q. Have you taken any medications?

21 A. Today?

22 MR. DUSEK: Objection. Vague.

23 MR. FELDMAN: I’m sorry. If I could withdraw,

24 please?

25 THE COURT: You withdraw the question. Ask

26 another one.

27 BY MR. FELDMAN:

28 Q. Within the past 24 hours have you taken any

Page 618

1 medication of any kind?

2 A. I had just took some Advil at lunch, and I had a

3 half a Xanax this morning.

4 Q. How about last night?

5 A. I took a Lescol for my cholesterol and a Paxil.

6 Q. And I’m sorry, but the question was 24 hours. So

7 did you have any Xanax yesterday, also?

8 A. I may have had one tablet.

9 Q. Did you have anything to drink last night?

10 A. Yes, I did.

11 MR. DUSEK: Objection. Irrelevant.

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

13 BY MR. FELDMAN:

14 Q. Redirecting your attention, ma’am, to the 1st of

15 February in the evening hours at Dad’s bar. Other than the

16 individuals you’ve told us about, that would be Keith,

17 Rich, the two females, did you invite anyone else back to

18 your house?

19 A. No.

20 Q. Do you know Patricia Le Page?

21 A. No.

22 Q. Do you know a woman named Cherokee?

23 A. No.

24 Q. Ryan Tyrol?

25 A. No.

26 Q. With regard to those three individuals, did you

27 invite any of them back to your house on the evening of the

28 1st of February, ma’am, after — or when you were ready to

Page 619

1 go back to the bar — I’m sorry — did you invite any of

2 those three individuals back to your house when you

3 prepared to leave the bar on or about February 1st?

4 A. No.

5 Q. When you arrived at your house — I think when we

6 recessed we started to address that. When you arrived at

7 your house, you were the first there with your girlfriends;

8 is that correct?

9 A. Yes.

10 Q. And then the two men pulled up a short time

11 later; is that right?

12 A. They pulled in front of the house before we

13 actually pulled into the driveway.

14 Q. When you arrived home, do you recall whether you

15 saw any lights upstairs?

16 A. Yes. The TV was on.

17 Q. Other than the TV? I’m thinking of overhead

18 lighting.

19 A. No.

20 Q. When you say the TV was on, is that — did that

21 shed enough light so that you could see it from outside the

22 house?

23 A. I would not know the answer to that, no. I would

24 not know.

25 Q. Well, you don’t have a recollection of seeing

26 that when you first arrived, that the TV was on upstairs?

27 You didn’t learn of that until after you went upstairs; is

28 that right?

Page 620

1 A. I can see my bedroom door when I walk into the

2 front door. So I saw it as soon as I walked in.

3 Q. But you didn’t see it until you walked in?

4 A. Yes.

5 Q. All right. And when you walked in the front

6 door, it was at that point you noticed the blinking lights

7 and you went around looking for closed doors; is that a

8 fair statement?

9 A. I noticed the blinking light out of the corner of

10 my eye. I told Denise that I needed to find the open door,

11 and I went upstairs and asked my husband if he’d like to

12 come down. Then I looked for the open door.

13 Q. When you went upstairs, Barbara Easton went with

14 you, did she?

15 A. Excuse me?

16 Q. When you went upstairs, did Barbara Easton go

17 with you?

18 A. No, she did not.

19 Q. At some point in time did you notice that Barbara

20 had gone upstairs?

21 A. Yes.

22 Q. And how much time elapsed between the time you

23 had first arrived and the time you noticed that

24 Barbara Easton had gone upstairs?

25 A. It was a matter of minutes.

26 Q. 10 minutes?

27 A. Under five minutes.

28 Q. And when you saw — at some point then you walk

Page 621

1 upstairs and you noticed — well, strike that.

2 When you walked upstairs, after Barbara had been

3 upstairs, did you walk upstairs with Denise?

4 A. No.

5 Q. Was there a time when you and Denise went to the

6 bathroom together and Barbara went to the bedroom with

7 Damon?

8 A. No.

9 Q. Isn’t it true that at some point that evening you

10 discovered that Barbara was in bed with Damon?

11 A. Barbara had walked upstairs to see Damon while I

12 was checking on the door.

13 Q. And then the next time you saw Barbara, in what

14 physical condition was she?

15 A. She was fully clothed.

16 Q. But was she standing up or laying down?

17 A. She was laying down.

18 Q. And was there anybody that she was laying down

19 either on or next to?

20 A. She was laying next to Damon on top of the

21 covers, and Damon was under the covers.

22 Q. And did you observe Damon to get out of bed?

23 A. No.

24 Q. Does Damon usually sleep with his clothing on or

25 off?

26 MR. DUSEK: Objection. Relevancy, Your Honor.

27 THE COURT: Counsel, the problem is we’ve gone

28 into this on direct, and while I’m going to do my best to

Page 622

1 keep limits on, I can’t sustain your objection.

2 You need to answer that question, please.

3 THE WITNESS: He sleeps with bottoms on,

4 underpants.

5 BY MR. FELDMAN:

6 Q. All right. And isn’t it true that you saw

7 Barbara jump into bed and begin snuggling and kissing

8 Damon?

9 A. I didn’t see it.

10 Q. Did Damon tell you that’s what happened?

11 MR. DUSEK: Objection. Hearsay.

12 THE COURT: Sustained.

13 BY MR. FELDMAN:

14 Q. Did you see the aftermath of any snuggling and

15 kissing that may have gone on?

16 MR. DUSEK: Objection. Vague.

17 THE COURT: Counsel, even I don’t know what that

18 question means.

19 MR. FELDMAN: All right.

20 THE COURT: Sustained.

21 BY MR. FELDMAN:

22 Q. At some point in time it became obvious to the

23 men downstairs that your husband had not come downstairs;

24 isn’t that correct?

25 MR. DUSEK: Objection. Calls for speculation.

26 THE COURT: Sustained.

27 BY MR. FELDMAN:

28 Q. You told us on direct examination that apparently

Page 623

1 the men downstairs said something which caused you to go

2 upstairs to get Damon out of bed; isn’t that right?

3 A. Yes.

4 Q. Okay. What had been said to cause you to go

5 upstairs?

6 A. They just asked where Barbara and Damon were.

7 Q. Is it true that in fact you told law enforcement

8 that what they were doing was teasing you about what

9 Barbara and Damon were doing?

10 A. They weren’t teasing me. They were joking

11 amongst themselves.

12 Q. What kind of jokes were they making amongst

13 themselves?

14 A. They just said what’s — I don’t recall.

15 Q. You started to answer.

16 A. But, you know what, I don’t know exactly, and I’m

17 not going to answer unless I know exactly.

18 Q. Can you give me your best —

19 THE COURT: Counsel, she’s on her way upstairs.

20 That’s good enough. Let’s go.

21 MR. FELDMAN: All right.

22 Q. When you got upstairs, what’s the first thing you

23 noticed when you looked into your bedroom?

24 A. Barbara was on top of the covers.

25 Q. And how much time elapsed between the time you

26 saw Barbara on the covers and the time you saw Barbara

27 downstairs?

28 A. A minute or two.

Page 624

1 Q. Before the women left that night and after you

2 had arrived home, did anybody smoke any more marijuana?

3 A. No.

4 Q. At some point did Damon come downstairs?

5 A. Yes.

6 Q. With regard to when Damon came downstairs, was

7 there pizza in the house at that time?

8 A. The pizza was left over from dinner. Yes.

9 Q. So, in fact, did you invite the men and the women

10 back to your house to eat the pizza?

11 A. I don’t recall.

12 MR. FELDMAN: Excuse me.

13

14 (Discussion off record.)

15

16 MR. FELDMAN: No further questions at this time.

17 THE COURT: Thank you, Mr. Feldman.

18 THE COURT: I’m sure that the District Attorney’s

19 explained my admonitions about not discussing this case.

20 THE WITNESS: Yes.

21 MR. FELDMAN: Your Honor, I’m sorry, but I just

22 have to ask a question I forgot. I apologize.

23 THE COURT: I knew it was too good to be true.

24 MR. FELDMAN: Almost.

25 THE COURT: Go ahead.

26 BY MR. FELDMAN:

27 Q. Ma’am, have you watched any — have you watched

28 any of the television coverage or read any of the media

Page 625

1 coverage that’s been saturating our city since this

2 preliminary hearing started?

3 A. No.

4 MR. FELDMAN: Thank you. No further questions.

5 THE COURT: Thank you very much.

6 THE WITNESS: Thank you.

7 MR. DUSEK: Damon Van Dam.

8 THE COURT: Do you want to help out in a few

9 minutes.

10 How’s the pitcher up there?

11 MR. DUSEK: There is none.

12 THE COURT: There is none. We need a pitcher

13 with water for the witnesses, please. Thank you very much.

14 THE BAILIFF: Stand right here for a moment and

15 raise your right hand to be sworn.

16
17 Peter Damon Van Dam,

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

19 having been first duly sworn, testified as follows:

20

21 THE COURT: Please take the stand, sir.

22 Please tell us your name.

23 THE WITNESS: Peter Damon Van Dam.

24 THE COURT: Thank you. And how do you spell

25 Damon?

26 THE WITNESS: D-A-M-O-N.

27 THE COURT: Go ahead.

28 /////

Page 626

1 DIRECT EXAMINATION

2 BY MR. DUSEK:

3 Q. Are you married, Mr. Van Dam?

4 A. Yes, I am.

5 Q. How long have you been married?

6 A. 13 years.

7 Q. And your wife?

8 A. Brenda Van Dam.

9 Q. How many children?

10 A. Three —

11 Q. Oldest —

12 A. Two.

13 Q. — name is?

14 A. Derrick.

15 Q. How old is he?

16 A. 9. Sorry.

17 Q. Danielle is —

18 A. Derrick just turned 10. I’m sorry.

19 Q. You a little nervous?

20 A. Just a little.

21 THE COURT: There’s some water up there.

22 THE WITNESS: I’m all right.

23 BY MR. DUSEK:

24 Q. Danielle your second child?

25 A. 7.

26 Q. How old is she?

27 A. 7.

28 Q. And your youngest child is named?

Page 627

1 A. Dylen.

2 Q. How old is he?

3 A. He’s 5.

4 Q. Where do you live, sir?

5 A. 12011 Mountain Pass road.

6 Q. Is that in the sabre springs area of San Diego?

7 A. Yes.

8 Q. How long have you lived there?

9 A. About three years.

10 Q. Do you work, sir?

11 A. Yes.

12 Q. What days of the week?

13 A. Monday through Friday.

14 Q. And how about your wife? Does she work outside

15 the home?

16 A. She has a part-time job selling books.

17 Q. How long has she been doing that?

18 A. About six months. Something like that.

19 Q. How long have you lived in that neighborhood?

20 A. About three years.

21 Q. Do you know an individual by the name of

22 David Westerfield?

23 A. Yes, I do.

24 Q. Do you see him in court today?

25 A. Yes, I do.

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

27 what he’s wearing today?

28 A. Gray suit, white shirt, blue tie.

Page 628

1 THE COURT: He’s identified Mr. Westerfield.

2 BY MR. DUSEK:

3 Q. Was he living in the neighborhood when you folks

4 moved in?

5 A. Yes.

6 Q. Up until this situation of Danielle was missing,

7 could you describe your relationship with Mr. Westerfield?

8 A. I spoke with him when we first moved in.

9 Q. You mean like first week or so or —

10 A. First month or so, maybe. I’m not sure. It was

11 a long time ago. Spoke with him for about five minutes

12 about a dune buggy he had in his garage, and waved at him

13 since then. And maybe six months to a year ago spoke with

14 him about some rocks that were in the street in front of

15 his house and a car had hit them and he was cleaning up the

16 rocks on our side of the street, our side of the corner,

17 and spoke with him a few minutes about the car that hit the

18 rocks.

19 Q. How would you describe — did you know his name

20 up until your daughter was missing?

21 A. No — up until a few days before when my wife

22 told me his name, no, I didn’t know his name.

23 Q. Had you ever socialized with him?

24 A. No.

25 Q. To your knowledge, had he ever been to your

26 house?

27 A. No.

28 Q. Had you ever been to his house?

Page 629

1 A. No. Well —

2 Q. Inside his house?

3 A. No.

4 Q. Had you ever been inside his house?

5 A. No.

6 MR. FELDMAN: I’m sorry. It appears as though

7 the witness was trying to answer.

8 THE COURT: I know.

9 THE WITNESS: I was —

10 THE COURT: Hold on. Don’t worry about it.

11 We’re all guilty of it, all right? Judges do it, just like

12 lawyers do it, witnesses do it. We have to wait, get the

13 question and the answer, and we all have to be cognizant of

14 that, okay? Not only you, but the rest of us.

15 Try the question again, please.

16 BY MR. DUSEK:

17 Q. Had you ever been inside his home?

18 A. No. Never inside.

19 Q. Had you been on his property?

20 A. In his driveway. Three years ago when I spoke to

21 him about the car was the only time.

22 Q. I’d like to direct your attention back to the

23 last day you saw Danielle, February 1st, Friday. Did you

24 work that day?

25 A. Yes, I worked that day.

26 Q. Remember about what time you got off work?

27 A. It was around 6:30.

28 Q. How do you get home?

Page 630

1 A. I drove home that day.

2 Q. And got home at about what time?

3 A. About 6:30, I believe.

4 Q. Did you have any plans for the weekend?

5 A. I originally had plans for the weekend that I

6 canceled.

7 Q. What were the original plans?

8 A. To go snowboarding with my son.

9 Q. Where were you going to go?

10 A. Big Bear.

11 Q. Were you going to go with anyone?

12 A. With — yes. Bill Libby.

13 Q. And anybody — was he going to bring anybody

14 along?

15 A. His son Derrick and his friend Patrick.

16 Q. How long were you going to go up there for?

17 A. Just for a day.

18 Q. What happened to the plans?

19 A. Actually —

20 THE COURT: Take your time.

21 THE WITNESS: I believe the original plans were

22 to not go with Bill, and we changed the plans to going with

23 Bill on Sunday instead of going on Saturday. It’s kind of

24 hazy now.

25 BY MR. DUSEK:

26 Q. All right. Do you remember why the trip was

27 delayed a day?

28 A. Because Bill wanted to go Sunday. I think I was

Page 631

1 going to go alone Saturday, and then Bill wanted to go

2 Sunday. So we changed it to going Sunday with Bill.

3 Q. On that Friday after you got home what was going

4 on at your place?

5 A. My wife had just gotten home with pizza, and we

6 ate dinner with the kids.

7 Q. Was anyone going out that evening?

8 A. Brenda was going out that evening.

9 Q. With whom?

10 A. Two of her friends.

11 Q. Do you know where they were going?

12 A. Dad’s cafe.

13 Q. What were you going to do while she was gone?

14 A. Watch the kids.

15 Q. Did anybody come over that evening?

16 A. Yes.

17 Q. Who came?

18 A. Her two friends, Denise and Barbara.

19 Q. What were you guys doing when they showed up?

20 A. When they showed up, I was playing video games

21 with the two boys in the living room, and Danielle was at

22 the kitchen table reading a book.

23 Q. What happened when the two girlfriends showed up?

24 A. Said hello. Brenda was still upstairs. I went

25 to the door and let them in and talked to them for just a

26 minute, and I believe they sat down at the kitchen table

27 with Danielle, and I went back to playing video games with

28 the boys.

Page 632

1 Q. That evening after you got home from work, did

2 you have anything to drink?

3 A. I had two beers with dinner, with pizza, and then

4 one beer later playing games with the boys and we ate some

5 more pizza. That was after they had left.

6 Q. All right. After the two girlfriends showed up,

7 did they remain in the house the whole time?

8 A. Until they left. They went out to the garage for

9 a while.

10 Q. Did you go out there initially with them?

11 A. For a minute I went out there with them.

12 Q. What happened out in the garage?

13 MR. FELDMAN: I couldn’t hear the answer —

14 THE COURT: I couldn’t either. Did you go out in

15 the garage with them initially?

16 THE WITNESS: I don’t think it was initially

17 because I think Brenda came down and they went out to the

18 garage.

19 THE COURT: Okay.

20 THE WITNESS: And I think then I went out.

21 Because I was playing games still with the boys, and then I

22 went out and talked to them for a minute and came back

23 in.

24 BY MR. DUSEK:

25 Q. What was going on in the garage?

26 A. They were smoking.

27 Q. What?

28 A. Cigarettes and marijuana.

Page 633

1 Q. Did you have any of that marijuana?

2 A. Yes.

3 Q. How much?

4 A. A hit, maybe two. I think only one, though.

5 Q. Two cigarettes?

6 A. No. Just a puff. It was cold in the garage. So

7 I went back in.

8 Q. How many marijuana cigarettes were out there

9 being passed around?

10 A. I believe it was just one, but I’m not sure. I

11 was only out there for a minute.

12 Q. Do you know anything at all about whether the

13 side garage door was open or closed at that time?

14 A. No.

15 Q. No, you don’t know.

16 A. I don’t know.

17 Q. After you spent the time in the garage, where did

18 you go, Mr. Van Dam?

19 A. Back to the living room. Played the video games

20 with the boys.

21 Q. What was the next thing that happened?

22 A. They came back in, I said goodbye to them, and

23 they left.

24 Q. Went off to where they were going?

25 A. Yeah.

26 Q. Who was driving? Do you remember?

27 A. I think it was Brenda, but I’m not really sure.

28 Q. Did you go outside to see who was driving?

Page 634

1 A. No.

2 Q. What did you do?

3 A. For sure, I definitely couldn’t say who was

4 driving.

5 Q. What did you do after they left?

6 A. Back to video games.

7 Q. Can you estimate for us about what time your wife

8 and her friends left your house?

9 A. About — around 8:00.

10 Q. Were you keeping track of time?

11 A. No. Not at all. That’s why I don’t know. I

12 was — I didn’t realize I had played the video games that

13 long either. It seems like a long time now.

14 Q. Do you remember which video games you were

15 playing?

16 A. Yeah. It was project Gotham. We’d just won an

17 X-box. So we were playing with our X-box.

18 MR. FELDMAN: Your Honor, I’m sorry —

19 THE COURT: You’re having difficulty.

20 MR. FELDMAN: Yes.

21 THE COURT: I know.

22 THE WITNESS: I’ll and speak up.

23 THE COURT: I have a feeling that some of us

24 aren’t too familiar with video games, me included, okay?

25 THE WITNESS: Okay.

26 THE COURT: So tell us —

27 THE WITNESS: X-box video game system.

28 THE COURT: One at a time. Remember? And if it

Page 635

1 was me — I’m sorry. Tell us the names of the video games

2 slowly.

3 THE WITNESS: Okay. One video game.

4 Project Gotham racing.

5 BY MR. DUSEK:

6 Q. Project Gotham racing?

7 THE COURT: I got it.

8 What was the other video game?

9 THE WITNESS: No other video game. It’s an X-box

10 system that you play it on.

11 THE COURT: Next question. Let’s get off the

12 video games.

13 BY MR. DUSEK:

14 Q. Were you drinking anything at that time,

15 Mr. Van Dam?

16 A. I believe after they left I had one more beer and

17 two more slices of pizza with Dylen. Dylen was — I got a

18 slice for me, and he ended up eating it, and I got another

19 slice, and he ate that one, too.

20 Q. How about Danielle? What was she doing?

21 A. Danielle played or read at the table for a while,

22 and asked me the spellings of a few words, because she was

23 reading her book and then writing it in her journal, and

24 she asked us to turn the TV down. And then after a while

25 she moved into the family room, which is just behind where

26 we were sitting.

27 Q. Where were you with the boys, which room?

28 A. Living room — the room with the TV, which

Page 636

1 I believe is the living room. Is that right?

2 Q. Do you remember what was on TV?

3 A. Project Gotham racing.

4 Q. It wasn’t a TV show?

5 THE COURT: That makes three of us. Go ahead.

6 BY MR. DUSEK:

7 Q. What happened after you guys were done watching

8 the computer stuff on TV?

9 A. At about a little before 10:00 I asked

10 them — the kids to all go up and brush their teeth and get

11 in bed, and I turned off that and I watched TV downstairs

12 for a little while while they went up and got ready for

13 bed.

14 Q. Did they get ready by themselves?

15 A. Yeah. They got ready by themselves.

16 Q. And as they were upstairs getting ready, you were

17 doing what?

18 A. Watching TV. Cleaned up the kitchen a little.

19 Q. Then what?

20 A. Went up at about 10:00, went up and put them into

21 bed, and went in Dylen’s room first, and Danielle was

22 reading to Dylen, and I asked her to go to bed,

23 and — well, I checked that they had brushed their teeth

24 and all. I asked her to go to bed. I tucked Dylen under

25 the sheets and gave him a kiss good night, said good night

26 to him. Then I went to her room and she’d already gotten

27 in her bed, and I gave her a kiss good night. And I went

28 to Derrick’s room, and he was still reading, and I asked

Page 637

1 him just to turn the light off when he was done reading,

2 because he usually puts himself to bed a few minutes later.

3 And cracked all their doors a crack. They wanted them

4 open, but I was going to watch TV. So I just left them a

5 crack open.

6 Q. When you say a crack, can you estimate for us

7 about how big the opening —

8 A. Six inches, eight inches.

9 Q. Did you leave any lights on upstairs?

10 A. When I left Derrick’s room, his light was left

11 on. All the upstairs lights were off. There may have been

12 a bathroom light on in our room, but I’m not sure.

13 Q. Do they have any night lights either in their

14 rooms or in their bathroom?

15 A. There’s a night light in their bathroom. There’s

16 a night light in Dylen’s room. Danielle’s room did not

17 have a night light. The blinds were open. And I’m not

18 sure if Derrick’s room had one at the time or not.

19 Q. After you tucked them in, where did you go?

20 A. Went back downstairs and watched TV a little

21 longer.

22 Q. Do you remember what you were watching?

23 A. I was channel surfing.

24 Q. Stay awake?

25 THE COURT: That I understand, counsel.

26 Go ahead.

27 THE WITNESS: Stayed awake for a little while

28 downstairs. And then went upstairs — then went upstairs

Page 638

1 again.

2 BY MR. DUSEK:

3 Q. Where did you go when you went upstairs?

4 A. Got in bed and watched TV in bed for a little

5 while.

6 Q. Do you have a dog?

7 A. I have a dog, yes. I left that out. Actually

8 you want the whole — from after putting Derrick to bed,

9 too?

10 Q. Did you do something with the dog after you put

11 Derrick to bed?

12 A. Put Derrick to bed. Went in our room. The dog

13 had chewed up her dog bed, and I took the dog bed

14 downstairs to the laundry room, put it in the laundry room,

15 and let the dog out back to go to the bathroom.

16 Q. How did you do that?

17 A. Through the rear sliding glass door. Opened the

18 sliding glass door, let her out to go bathroom, closed the

19 door while she was going and stood there and watched her,

20 and then let her back in through the door.

21 Q. And after you did that, is that when you went to

22 watch TV?

23 A. Downstairs, yeah. And I kept the dog down there

24 with me for a little while. I didn’t watch TV too long.

25 Q. When you finished watching TV, you went where?

26 A. I went back up to my bedroom.

27 Q. And how about the pooch? Where did the dog go?

28 A. The pooch came up to the room with me and I

Page 639

1 closed her in with me.

2 Q. Why?

3 A. She — because she had — well, we close her in

4 all the time, basically because she’ll pee in the house if

5 we let her out.

6 Q. What did you do in your room?

7 A. Got ready — got in bed and watched TV for a

8 little while, and then turned the TV off and went to sleep.

9 Q. Are you able to estimate for us the time period

10 we’re talking about, when you got upstairs or when you

11 turned the TV off?

12 A. Around 10:45, 11:00. I don’t know.

13 Q. What event —

14 A. While going to bed. I’d say probably another

15 15 minutes downstairs watching TV. After — about quarter

16 after 10:00 downstairs watching TV, and then went upstairs,

17 and maybe 10:30, 10:45 turned off the TV for the last time.

18 I didn’t look at the clock at any of those times. So I

19 really —

20 Q. When you came upstairs to watch TV and go to your

21 bedroom, did you check on the kids?

22 A. No.

23 Q. You eventually fell asleep in your bedroom?

24 A. Yes.

25 Q. What was the next thing you were aware of?

26 A. The dog was wining to go out. She was — she

27 usually sleeps on Brenda’s side of bed, and she was up and

28 wining on my side of the bed. So I assumed she had to go

Page 640

1 to the bathroom. So I went down and let her out.

2 Q. That was the assumption you made?

3 A. Yeah.

4 Q. Is she able to bark or make any sort of noise?

5 A. She’s able to, but she doesn’t usually.

6 Q. Why not?

7 A. She was born and raised on a farm where the dogs

8 had all been devoiced.

9 Q. What did you do once the dog was making some

10 motion?

11 A. Got up and went down and let her out.

12 Q. Do you know what time that was?

13 A. Around 1:45, I think.

14 Q. Did you check the clock at that time?

15 A. No.

16 Q. So this, again, is an estimate?

17 A. This is an estimate.

18 Q. Was Brenda home by then?

19 A. No.

20 Q. Where did you take the dog?

21 A. Let her out back, and then let her back in.

22 Again, watched her while she went out.

23 Q. What door?

24 A. Through the back sliding glass door. Let her

25 back in. Went back upstairs to the bedroom. Left the

26 bedroom door open.

27 Q. Why?

28 A. Because I knew Brenda would be home soon because

Page 641

1 I knew Dad’s closed at 2:00 A.M. So with the bedroom door

2 open, the dog was wherever dog was. I don’t know. I

3 jumped in bed and I watched TV for a little while.

4 Q. Did you have any lights on in your room besides

5 the TV?

6 A. No. There was — the only light on in the house

7 was the dining room light on dim and — yeah. And the

8 front light out — the front porch light.

9 Q. Porch light?

10 A. Yeah.

11 Q. What was the next thing that you recall

12 happening?

13 A. I heard the truck pull up and people come in the

14 house, and at that time was 1:54, 5, 6. I distinctly

15 remember because that’s the time I looked at the clock. So

16 I would believe probably 1:54 they came in, and then I laid

17 in bed a while while I heard them downstairs.

18 Q. This clock that you have, is it a digital clock

19 that prints out the numbers?

20 A. Yeah. On the VCR.

21 Q. What was the next thing that happened?

22 A. Brenda and Barbara came upstairs — well, I

23 heard — when they came in, I heard two male voices that I

24 didn’t know. Then Brenda and Barbara came upstairs.

25 Barbara jumped in bed next to me. I think Brenda went to

26 the bathroom, but I’m not sure. It was dark in the room.

27 MR. FELDMAN: I’m sorry. I didn’t hear.

28 THE COURT: I couldn’t hear either. Keep your

Page 642

1 voice up.

2 THE WITNESS: I’m not sure where Brenda went, but

3 she came in the room and said something to me, and then

4 left the room.

5 BY MR. DUSEK:

6 Q. And Barbara, when you say she jumped in the bed

7 with you, what does that mean?

8 A. She jumped on top of the blankets next to me.

9 Q. Where were you?

10 A. I was under the blankets.

11 Q. How were you dressed?

12 A. Had underwear on.

13 Q. What happened?

14 A. Barbara laid next to me. I rolled over and put

15 my arm around her, kissed, rubbed her back some.

16 Q. How long were you there with her?

17 A. Five minutes. Around five minutes.

18 Q. What happened after that?

19 A. Brenda came back upstairs and asked that we come

20 downstairs with the other people in the house.

21 Q. Did you?

22 A. Yes.

23 Q. What were you wearing when you came downstairs?

24 A. You know, I’m not positive.

25 Q. More than underwear?

26 A. More than underwear. I either put on my

27 house coat or I put on a T-shirt and shorts, but I don’t

28 remember which.

Page 643

1 Q. When you got downstairs, who was there?

2 A. Rich, Keith, Denise, Barbara and Brenda.

3 Q. Did you know those people?

4 A. Knew them all, yes.

5 Q. What was going on downstairs?

6 A. They were eating pizza and cookies.

7 THE COURT: They were eating pizza and what?

8 THE WITNESS: Cookies.

9 THE COURT: That’s what I thought you said.

10 THE WITNESS: Chocolate chip cookies.

11 BY MR. DUSEK:

12 Q. How long did they hang around?

13 A. I would guess 15 minutes to a half hour.

14 Q. Who left first, if you can remember?

15 A. Barbara and Denise left together first.

16 Q. And then what?

17 A. Then Rich and Keith left a few minutes later.

18 Q. How was it that they came to leave? Did you say

19 anything or did anyone say anything to anybody?

20 A. Oh, yeah. We said it was time to go.

21 Q. After they left, was anybody left in the house?

22 A. Just Brenda and myself and the kids.

23 Q. When Brenda came home from Dad’s, were you aware

24 of any lights being activated on a warning system?

25 A. No.

26 Q. Do you have a warning system or a security system

27 in your house?

28 A. Yes.

Page 644

1 Q. Explain it to us.

2 A. There’s different red lights. There’s green

3 lights that go on when all doors are closed, and if certain

4 zone doors are opened, which is groups of doors or windows,

5 are opened, a red light will go on. It will beep and a

6 red light will go on and stay on as long as the door’s

7 open, and I didn’t notice any of those lights on.

8 Q. While you were up in the bedroom after you took

9 the dog outside and came back for the last few minutes

10 before Brenda came home, did you see any lights on on the

11 monitor in your bedroom?

12 A. No.

13 Q. Where is the monitor in your room?

14 A. It’s next to the door to the room.

15 Q. Can you explain to us why you didn’t see any

16 lights on, assuming there was a light on?

17 A. Well —

18 MR. FELDMAN: Objection. Speculation.

19 THE COURT: Sustained.

20 BY MR. DUSEK:

21 Q. Were you paying attention to the alarm system?

22 A. I was not paying attention to the alarm system,

23 but when I lay in bed, there’s — one of the posts of the

24 bed, if I lay in a certain area of the bed, I can’t see the

25 lights at all. So sometimes I can’t see them, sometimes I

26 can, depending on —

27 Q. Is there anything audible sound when the light

28 goes on?

Page 645

1 A. When the door’s first opened, yeah, it beeps,

2 gives a little beep.

3 Q. How long?

4 A. Just a chirp, di-di-di, short chirp.

5 Q. You heard that?

6 A. No.

7 Q. After the friends leave, you and your wife do

8 what?

9 A. Went upstairs and went to bed.

10 Q. What was the next thing that you remember

11 happening?

12 A. After we went to bed?

13 Q. Yes.

14 A. Woke up the next morning.

15 Q. Did you get up in the middle of the night after

16 you and your wife went to sleep?

17 A. Oh, yes. Yes. I’m sorry. Yeah. I noticed the

18 light on. I think I woke up because I had to pee, and I

19 noticed the light on on the alarm system.

20 Q. Had you been asleep?

21 A. Yes.

22 Q. Do you think you heard the chirp, that caused you

23 to wake up?

24 A. No.

25 MR. FELDMAN: Speculation. Objection.

26 THE COURT: Sustained. The answer’s stricken.

27 BY MR. DUSEK:

28 Q. Had you heard the chirp before you woke up?

Page 646

1 A. No.

2 Q. When you woke up to use the rest room, when did

3 you notice the light on?

4 A. As soon as I got up.

5 Q. What did you do?

6 A. It was dark in the room. So it was kind of

7 obvious.

8 MR. FELDMAN: I’m sorry. Excuse me.

9 THE COURT: I understand —

10 MR FELDMAN: The mike can be moved or something?

11 THE COURT: I don’t think we can move the mike

12 any more.

13 Sir, you have sort of a soft voice. So if you

14 speak up and enunciate a little bit, it will really help.

15 THE WITNESS: Okay.

16 THE COURT: Let’s go back and ask him a question

17 again, or if you want it read back, that will be fine,

18 about what happened when he woke up in the middle of the

19 night to use the bathroom and the light.

20 MR. DUSEK: Yeah. That question.

21 THE WITNESS: Can I just read it here?

22 I woke up and noticed that one of the red lights

23 was on. I’m not sure which one, but I saw it on in the

24 room.

25 BY MR. DUSEK:

26 Q. So what did you do?

27 A. Went downstairs to check if a door was open.

28 Q. What did you find?

Page 647

1 A. The rear sliding glass door was open a crack.

2 Q. Is this the door that you’d taken dog in and out

3 of to use the back yard?

4 A. Yes.

5 Q. When you say it was open a crack, describe for us

6 how wide a crack is.

7 A. Around eight inches. Not quite wide enough for

8 the dog to get through. Maybe 10 inches.

9 Q. What did you do?

10 A. Closed the door, locked it.

11 Q. The last time you’d been to that door, do you

12 know if you’d closed it?

13 A. The last time I had been to the door, yes, I’m

14 sure I closed it.

15 Q. Did you lock it?

16 A. I think I locked it, but I’m not positive.

17 Q. Since that day, have you tried to get in through

18 that door from the outside?

19 A. Yes, I have.

20 Q. Were you able to?

21 A. Yes.

22 Q. What did you have to do?

23 A. Well, actually I can add to that, that I was able

24 to — we first started discussing the alarm system and how

25 well it works —

26 MR. FELDMAN: I’m sorry, Your Honor. There’s no

27 question pending. Not responsive. Objection.

28 THE COURT: Counsel, you’re absolutely right, but

Page 648

1 he’s doing his best to answer the question. So I’m going

2 to have the question read back and he’ll answer it, okay?

3 Want to read back the question, please?

4 THE WITNESS: That’s all right. I know the

5 question. And —

6 THE COURT: Hold on —

7 THE WITNESS: To get in the door —

8 THE COURT: I have a feeling once I ask the

9 gentleman to read back the question, that his hands are off

10 the machine, okay? So he’s in trouble.

11 Now, I want the question read back.

12

13 (Record read.)

14

15 THE WITNESS: I got a screwdriver from the

16 garage, walked out the door, had my wife lock it, and in

17 10 to 20 seconds, by prying the door up and down, I

18 unlocked the door and opened it from the outside.

19 BY MR. DUSEK:

20 Q. Did you make any other inquiry as to the

21 efficiency of the alarm system?

22 A. Yes, I did.

23 Q. What did you do?

24 A. I got a child’s play magnet, a real small magnet,

25 and opened the door and put the magnet over the sensor on

26 the door, and the alarm never beeped and the red light

27 never went on. And the magnet hung there by itself, the

28 door remaining open. I did this to all doors in the house

Page 649

1 with the same result.

2 Q. After you closed that rear sliding door, what did

3 you do?

4 A. We’re back to that night?

5 Q. Yeah. Yeah.

6 A. I closed that door. I went out in the garage and

7 I visually looked at the side door to the garage and saw

8 that it was in the locked position. Went back in the house

9 and went up to bed.

10 Q. Check on your kids?

11 A. I didn’t check on the kids.

12 Q. Why not, Mr. Van Dam?

13 A. I didn’t believe I had any reason to. I assumed

14 in my state of drowsiness that one of the other people in

15 the house had left that door open because it’s right next

16 to the table where we were all sitting at.

17 Q. Even though you’d already been to that door a

18 couple of times?

19 A. But they were sitting there after I had

20 checked — I had let the dog out the last time.

21 Q. Did you then go back to bed?

22 A. Yes.

23 Q. When did you get up?

24 A. About 8:00 in the morning.

25 Q. Were you the first one up between you and your

26 wife?

27 A. Between me and my wife, yes.

28 Q. Where did you go?

Page 650

1 A. I went downstairs. My son was already up.

2 Q. Which son?

3 A. Derrick.

4 Q. What did you do?

5 A. Talked to him for a minute and asked him what he

6 needed — what he wanted for breakfast, and started making

7 him breakfast, pop tarts.

8 Q. Then what happened?

9 A. My other son — actually I’m not positive if

10 Dylen was down there, too. I think Dylen got up a

11 little — a few minutes later and joined us downstairs, and

12 I made him pop tarts, also, and myself a waffle.

13 Q. And your wife was where?

14 A. Upstairs.

15 Q. After you had the little breakfast with the boys,

16 what happened?

17 A. Brenda came downstairs, and I think she did the

18 dishes. She started doing some dishes while I took some

19 garbage out.

20 Q. Where’s your garbage?

21 A. The garbage cans are on the side of the house

22 outside the garage, side door.

23 Q. Then what?

24 A. We went back upstairs for a little while.

25 Q. After that, what happened?

26 A. Came back downstairs, and she started to make

27 breakfast for the other kids. The neighbor’s kids came

28 over.

Page 651

1 Q. Was something supposed to happen with the

2 neighbor’s kids?

3 A. Yeah. We were watching the neighbor’s children.

4 Q. About what time was it that the neighbor kids

5 came over, if you can estimate?

6 A. 9:00, around 9:00.

7 Q. When they got there, what happened?

8 A. They played some with the boys, and Danielle’s

9 friend asked about Danielle. So Brenda told her she could

10 go wake Danielle up.

11 Q. Is that where you thought she was? Where did you

12 think Danielle was?

13 A. In bed.

14 Q. Was that unusual for her to sleep that late?

15 A. No. Not at all.

16 Q. Why not?

17 A. She was always the last one up.

18 Q. Then what happened?

19 A. Brenda went up to wake Danielle up, and found she

20 wasn’t there. Called down to me, asking where Danielle

21 was, and I said in bed, and we started to search for her.

22 Q. Where did you go, Mr. Van Dam?

23 A. In searching for her, into all the bedrooms, went

24 under the beds, bathrooms, under the stairs, in the office,

25 the garage, went out to the side of the house, and I

26 noticed the side gate was also open.

27 Q. What do you mean the side gate?

28 A. The gate that goes to the back yard on the side

Page 652

1 of the house.

2 Q. Is that near another door or entryway into the

3 house?

4 A. That’s near the side garage door.

5 Q. How far away?

6 A. About five feet, four feet.

7 Q. Describe for us how easy or difficult that gate

8 is to open.

9 A. Too difficult for a child to open.

10 Q. Why do you say that?

11 A. It’s tight. The wood is tight on itself, and it

12 swells, and so you have to push the latch up and pull the

13 gate open from the top of the gate. A child’s too small to

14 reach up there and pull it open with the force needed.

15 Q. How high is this latch on the gate?

16 A. About four foot, maybe a little higher.

17 THE COURT: About how many feet?

18 THE WITNESS: Four foot. Maybe a little

19 higher.

20 THE COURT: Thank you.

21 BY MR. DUSEK:

22 Q. And that gate was open when you saw it?

23 A. It was slightly ajar, about a foot open.

24 Q. Had you noticed that when you took the trash out?

25 A. No. But I wasn’t paying attention to that.

26 Q. What was your emotional state at that point?

27 A. Crazy. I don’t know. I was not in good shape.

28 Q. Had Danielle ever run away from home?

Page 653

1 A. No.

2 Q. Had she ever left unexplainedly before?

3 A. No.

4 Q. Did you search anywhere else?

5 A. After that we — I went to a couple of neighbor’s

6 houses and knocked or — was that before or after — I

7 drove around the block, and then went to neighbor’s houses.

8 I don’t remember the order. I was frantic. But I remember

9 I got in the car and drove around the block to look for

10 her. I ran up and down the street first. It was —

11 Q. Were the police notified?

12 A. Yeah.

13 Q. When and how?

14 A. When I — after I noticed the gate open, I went

15 back in and Brenda was on the stairs and asked if she

16 should call 911, and I said yes.

17 Q. How quickly did the police get there?

18 A. It seemed fast, but I couldn’t — I can’t tell

19 time with the state I was in.

20 Q. What were you doing while you were waiting for

21 the police to show up?

22 A. I drove the van around the block. And they were

23 there by the time I got back, I think.

24 Q. Then what happened?

25 A. They asked us about the night. More police came.

26 It’s all a haze. I was not in a good mental state.

27 Q. Did you spend that night at home?

28 A. No. We spent it across the street at the

Page 654

1 neighbor’s house.

2 Q. Why?

3 A. The police were — the police wanted the house to

4 search.

5 Q. Do you know what they were doing inside your

6 house?

7 A. No.

8 Q. From the time that you noticed Danielle missing

9 did you vacuum or clean the house?

10 A. No.

11 Q. Did you destroy, hide, conceal any sort of

12 evidence or what you perceived to be evidence in this case?

13 A. No.

14 Q. Once the police criminal people showed up, were

15 you allowed into the house before they finished their work?

16 A. Before they finished —

17 Q. Before they finished processing your house.

18 A. Completely?

19 Q. Yeah.

20 A. Yes, we were allowed back in.

21 Q. When?

22 A. The whole time was so bad I couldn’t even say if

23 it was the second day or third day. I don’t know. But I

24 know when we were allowed back in, people — by the time I

25 got in the house, there was at least a half a dozen people

26 cleaning it from fingerprint dust.

27 Q. Do you know where they were cleaning?

28 A. On the stairs is what I saw. I only went into

Page 655

1 the entryway.

2 Q. What did you do?

3 A. My main concern was that no one clean Danielle’s

4 room.

5 Q. Why?

6 A. Because I was worried — because I knew

7 somebody —

8 THE COURT: You want to take a break?

9 THE WITNESS: I knew something bad had happened,

10 and I wanted to make sure if there was any evidence, that

11 it was still there.

12 BY MR. DUSEK:

13 Q. What did you do to protect that room?

14 A. We closed the door and we put one of the

15 dog gates up with a sign that said do not enter.

16 Q. Did you let any of your friends into that room?

17 A. No. We let a couple of people look in, but we

18 wouldn’t let anybody walk in.

19 Q. That sign still up?

20 A. No. You guys have convinced me you’ve got

21 enough. So — we haven’t cleaned it, though.

22 Q. You haven’t cleaned it yet?

23 A. No.

24 MR. DUSEK: Thank you, sir.

25 THE COURT: Sir, Mr. Feldman is going to ask you

26 some questions. Do you want to take a break before that

27 starts or not?

28 THE WITNESS: Can we try, and if I need to

Page 656

1 stop —

2 THE COURT: That’s fine. There you go, sir.

3 THE WITNESS: Thanks.

4 THE COURT: Just so you know, my court reporter

5 probably can only go about another half hour without a

6 break. So if you need one, all right, you let me know.

7
8 CROSS-EXAMINATION

9 BY MR. FELDMAN:

10 Q. Good afternoon, sir.

11 You just said something I want to — I’m sorry.

12 I thought I heard you say you guys have convinced me. Did

13 you just say that in response to one of Mr. Dusek’s

14 questions?

15 A. Yes, I did. I said you guys have convinced me

16 you’ve got enough, and I don’t believe I finished,

17 evidence.

18 Q. Oh. So —

19 A. I meant I believe they have enough evidence, that

20 they don’t need the room sealed any longer.

21 Q. All right. So when you said you guys have

22 convinced me, were you indicating that law enforcement has

23 been providing you with information concerning certain

24 aspects of their investigation?

25 A. I mean they have been out there enough times and

26 taken enough out of that room that I don’t think they need

27 any more.

28 Q. But what I’m wondering is who convinced you, who

Page 657

1 talked to you that caused you to form the opinion that you

2 were convinced about something?

3 A. No one.

4 Q. Pardon me?

5 A. No one.

6 Q. So when you said you guys have convinced me, that

7 was just a general reference to your state of mind?

8 A. To what I see in there, state of mind, yes.

9 Q. And when you say to what you see, what is that

10 you’re making reference to, sir?

11 A. From everything I see with what’s going on here,

12 it looks like they have enough evidence.

13 Q. What is it you’ve seen about what’s going on

14 here, sir?

15 A. I have seen people walk out of my house with tons

16 of stuff that I’m voluntarily giving them.

17 Q. It sounded, though, as what you were indicating,

18 though, was maybe you’d seen something on television,

19 because you look around, or that you’d read newspapers or

20 somehow you’ve been affected by the media saturation of the

21 case.

22 A. I have had absolutely no media contact since the

23 beginning of this.

24 Q. Meaning this hearing?

25 A. This hearing.

26 Q. And —

27 A. Because I was asked — prior to that, I had some,

28 but I hadn’t read a lot.

Page 658

1 Q. Okay. Well, you talked about being convinced.

2 It is the case that a public relations firm has been hired

3 to I guess work with you or participate with you; is that

4 right?

5 MR. DUSEK: Objection. Irrelevant.

6 THE COURT: Sustained, counsel.

7 BY MR. FELDMAN:

8 Q. Did someone other than law enforcement convince

9 you of anything having to do with this case, sir?

10 MR. DUSEK: Objection. Irrelevant.

11 THE COURT: Sustained.

12 MR. DUSEK: 352.

13 BY MR. FELDMAN:

14 Q. How many different times would you estimate

15 you’ve discussed the case?

16 MR. DUSEK: Objection. Irrelevant. Vague.

17 THE COURT: That’s certainly vague. Sustained.

18 BY MR. FELDMAN:

19 Q. Let me direct your attention, sir, first to a

20 communication on February the 2nd at approximately

21 9:40 A.M. Do you recall — I think you told Mr. Dusek that

22 you had asked your wife to call 911.

23 A. She asked me if she should call.

24 Q. But you gave the go-ahead. So is it correct that

25 the first contact you had with law enforcement was with an

26 officer named Clark at approximately 9:40 in the morning on

27 February the 2nd?

28 A. I don’t know the name.

Page 659

1 Q. Do you recall that it was a uniformed, as opposed

2 to a non-uniformed officer?

3 A. I was in a frantic state and I couldn’t even say

4 that for sure.

5 Q. Okay. Do you recall later in that day

6 law enforcement, and in particular an officer named Flores,

7 asking permission to speak to you?

8 A. I know I’ve spoken — I know I’ve spoken to

9 detective Flores, but I couldn’t say for sure if it was

10 that day.

11 Q. Very well. And how many different times do you

12 recall speaking to detective Flores?

13 A. I — at least once. I don’t know. I’ve talked

14 to many police for many hours.

15 Q. I understand that. And when you say many — you

16 were — well, with regard to Mr. Flores or Ms. Flores, and

17 specifically on the 2nd of February, do you recall

18 three separate interviews of you, the very first day you

19 reported, sir?

20 A. I don’t know about three. I think at least two,

21 but I’m not sure.

22 Q. And do you recall the officers telling you that

23 it was extremely important that you told them everything

24 you knew about the case?

25 A. Yes.

26 Q. And do you recall the officers telling you that

27 it was absolutely essential that you tell them the complete

28 truth about all of your activities in the preceding — in

Page 660

1 the time prior to your being contacted by law enforcement?

2 A. Yes.

3 Q. Now, it’s correct, is it not, that at least with

4 regard to the first couple of interviews, you were asked by

5 law enforcement specifically whether or not — well, to

6 relate to law enforcement all details that you could

7 remember? That’s true, isn’t it?

8 A. I believe so.

9 Q. And you were specifically told that it was

10 important that you relate all of the details of your

11 activities, because they were after the truth and they were

12 trying to help you, right?

13 A. Didn’t you just ask me that?

14 Q. Did you not understand my question, sir?

15 A. I must not understand it. I just thought the

16 same question just came twice.

17 Q. So did you want to make an objection?

18 MR. DUSEK: Objection, Your Honor.

19 Argumentative.

20 THE COURT: Counsel, I let it go because I —

21 MR. FELDMAN: Okay.

22 THE COURT: The questions were very similar.

23 MR. FELDMAN: I’m not trying to be —

24 THE COURT: No. I understand that. But the

25 questions were similar. So I understand why he said

26 that.

27 MR. FELDMAN: All right.

28 THE COURT: You’re right. He shouldn’t be asking

Page 661

1 you questions and — but let’s go.

2 BY MR. FELDMAN:

3 Q. It’s correct, is it not, that you did

4 not — actually you concealed evidence from the police the

5 first couple of times you talked to them; isn’t that true,

6 sir?

7 MR. DUSEK: Objection. Irrelevant or

8 argumentative.

9 THE COURT: Sustained. If you have something,

10 point it out.

11 BY MR. FELDMAN:

12 Q. Mr. Dusek just asked you on direct examination

13 whether you had concealed any evidence or failed to admit

14 anything, and you answered no, you had not concealed

15 anything. Do you recall that?

16 A. No. And I have not concealed anything.

17 Q. But isn’t it true that, for instance,

18 law enforcement asked you to identify anybody, this is now

19 on the first interview or the second interview,

20 law enforcement asked you to identify anyone who had access

21 to the bedrooms upstairs.

22 A. I don’t recall that question specifically.

23 Q. But do you recall an officer at some point in

24 time saying to you we’ve talked to Barbara Easton,

25 Mr. Van Dam, you did not tell us the complete truth about

26 your activities that evening. Now, that happened, didn’t

27 it, sir?

28 A. Yes, that did.

Page 662

1 Q. So when you said to Mr. Dusek you didn’t conceal

2 anything, did you forget that at least a police officer

3 had — officers were accusing you of concealing evidence

4 from them based upon information they got from

5 Barbara Easton?

6 MR. DUSEK: Objection. Argumentative.

7 THE COURT: Sustained.

8 BY MR. FELDMAN:

9 Q. Did you tell the police that you didn’t believe

10 they needed to know that Barbara Easton had gotten in bed

11 with you that evening?

12 MR. DUSEK: Objection. Argumentative.

13 Irrelevant.

14 THE COURT: Overruled.

15 THE WITNESS: Could you repeat the question?

16 BY MR. FELDMAN:

17 Q. Did you tell the police that Barbara —

18 THE COURT: That they didn’t need to know —

19 MR. FELDMAN: I’m sorry. I was going to ask to

20 have the question read back.

21 THE COURT: Oh, I thought you were going to ask

22 another question.

23 MR. FELDMAN: No. May I please?

24 THE COURT: All right. By now, yes, I forgot the

25 question, but I knew it a few seconds okay. Go ahead.

26 MR. FELDMAN: So did I.

27

28 (Record read.)

Page 663

1 THE WITNESS: When they came back and talked to

2 me the second time, yes, I told them that.

3 BY MR. FELDMAN:

4 Q. When you say when they came back and talked to

5 you the second time, sir —

6 A. Actually it might have been the third time.

7 Q. Okay.

8 A. I don’t know.

9 THE COURT: Next question.

10 BY MR. FELDMAN:

11 Q. Who’s they?

12 A. The police.

13 Q. Well, when you first had communication — the

14 first communication you had with the police was with a

15 single officer, right; isn’t that correct?

16 A. I really do not know. I know I talked to a lot

17 of police and detectives. I couldn’t tell you names.

18 There was —

19 Q. On direct examination, Mr. Dusek had asked you

20 whether or not it seemed like a fast response time between

21 the time of the 911 call and the time an officer showed up.

22 A. Okay.

23 Q. I’m trying to direct your attention to that first

24 communication with that officer, okay?

25 A. (Witness nods head).

26 Q. You’re nodding your head, but —

27 A. Yes.

28 Q. Thank you. With regard to that first officer,

Page 664

1 did you provide that first officer all of the details that

2 he was asking for?

3 MR. DUSEK: Objection. Asked and answered.

4 THE COURT: Sustained. Next question.

5 BY MR. FELDMAN:

6 Q. With regard to the second interview with

7 law enforcement, was that at your house or at the

8 police department?

9 A. I don’t —

10 Q. Sir —

11 A. I don’t know.

12 Q. You said it might have been the second or it

13 might have been the third communication with them. Do you

14 recall whether the third communication happened at the

15 police department?

16 A. No.

17 Q. You recall that some did, that is some of your

18 statements occurred at a police department and some of your

19 statements did not occur at a police department?

20 A. Yes.

21 Q. How many times do you recall being interviewed

22 before you told the police that you were smoking marijuana

23 that evening?

24 A. I don’t know.

25 Q. Could it have been three or four?

26 MR. DUSEK: Objection. Calls for speculation.

27 THE COURT: Overruled.

28 THE WITNESS: Yes, it could have been.

Page 665

1 BY MR. FELDMAN:

2 Q. And how many separate interviews did you have, if

3 you can recall, with the police before you were confronted

4 with the statements that Barbara Easton had made?

5 A. I don’t recall.

6 Q. You told Mr. Dusek that you didn’t have much

7 acquaintance with David Westerfield. However, I think you

8 said that he had been in the neighborhood as long as you

9 were in the neighborhood; is that correct, sir?

10 A. I’m fairly — I believe that he was living there

11 when we moved in. I’m not positive of that, though.

12 Q. Did you know that Mr. Westerfield had a

13 motorhome?

14 A. Yes.

15 Q. And was that a motorhome that you had seen on a

16 fairly regular basis parked on the street?

17 A. Yes.

18 MR. DUSEK: Objection. Vague as to what’s fairly

19 regular.

20 THE COURT: Overruled.

21 BY MR. FELDMAN:

22 Q. And was his motorhome — well, strike that.

23 In your community, sir, are there CC&R’s?

24 A. I don’t know what that is.

25 Q. Conditions, covenants and restrictions.

26 In other words, rules that all the — all the people that

27 live there have to abide by.

28 A. Yes, there are.

Page 666

1 Q. And is having a motorhome something that’s — I

2 mean — let me say that a different way.

3 Is having a motorhome on the street something

4 that’s not supposed to occur in your community because

5 leaving it there for a period of time violates your

6 understanding of the CC&R’s?

7 MR. DUSEK: Objection. Irrelevant, Your Honor.

8 THE COURT: Overruled. I find it relevant.

9 THE WITNESS: Yes, there is. I didn’t go into

10 that. We noticed it there, but I know someone had

11 complained about it. Someone had complained about a

12 neighbor’s lawn, too —

13 THE COURT: Sir, here’s the question. I know

14 you’re trying. The question is do the CC&R’s restrict the

15 parking of motorhomes on the streets, maybe the driveways?

16 THE WITNESS: I’ve never read the CC&R’s. No, I

17 don’t know.

18 THE COURT: Okay. He doesn’t know. Next

19 question.

20 THE WITNESS: I’ve never looked.

21 BY MR. FELDMAN:

22 Q. With regard to the motorhome, isn’t it the case

23 that you believed it to be a bone of contention in the

24 neighborhood because of Mr. Westerfield’s pushing the

25 limits of the homeowner’s rules?

26 MR. DUSEK: Objection. Irrelevant, 352.

27 THE COURT: Sustained. Next question.

28 /////

Page 667

1 BY MR. FELDMAN:

2 Q. Isn’t it correct that you would see the motorhome

3 parked directly across the street from David’s house,

4 Mr. Westerfield’s house, on the north side of the street?

5 MR. DUSEK: Objection. Vague as to when.

6 THE COURT: Sustained.

7 BY MR. FELDMAN:

8 Q. Within the previous three weeks or five weeks,

9 had you seen Mr. Westerfield’s motorhome parked directly

10 across the street from his home?

11 A. I don’t recall.

12 Q. Isn’t it the case that Mr. Westerfield had been

13 parking the motorhome more recently on the east side of the

14 street closer to his house?

15 MR. DUSEK: Objection. Irrelevant.

16 THE COURT: Sustained.

17 BY MR. FELDMAN:

18 Q. Isn’t it true you could see Mr. Westerfield’s

19 motorhome from your back yard?

20 MR. DUSEK: Objection. Irrelevant, Your Honor.

21 The entire line of questioning.

22 THE COURT: Counsel, I don’t want to get into

23 this area. It wasn’t brought up on direct.

24 MR. FELDMAN: The question was his knowledge of

25 Mr. Westerfield, Your Honor.

26 THE COURT: I understand that.

27 MR. FELDMAN: If that’s the case, I would need to

28 take him back as my witness on these issues if you thought

Page 668

1 it was relevant.

2 THE COURT: Counsel, if you have — want to ask

3 him about if he had any conversations with Mr. Westerfield

4 about his motorhome, that seems to me to be relevant.

5 MR. FELDMAN: Okay.

6 THE COURT: Not how many times did he see it and

7 did it violate the CC&R’s, et cetera, please.

8 MR. FELDMAN: Yes, Your Honor.

9 Q. Did you have any conversations with any person in

10 the neighborhood concerning your views regarding

11 Mr. Westerfield’s —

12 THE COURT: No. That wasn’t my suggestion. That

13 wasn’t my suggestion. My suggestion was did he have any

14 conversations with Mr. Westerfield. If I wasn’t clear, I

15 apologize, but I think I was.

16 MR. DUSEK: You were clear.

17 MR. FELDMAN: Without being facetious, do I have

18 to take the court’s suggestions?

19 THE COURT: No.

20 MR. FELDMAN: So I’m trying — I mean

21 thank you.

22 THE COURT: I understand what you’re saying. The

23 objection then to the question that I didn’t ask is

24 sustained. Next question.

25 BY MR. FELDMAN:

26 Q. I want to ask the judge’s question —

27 THE COURT: Go ahead.

28 /////

Page 669

1 BY MR. FELDMAN:

2 Q. Did you have any conversations with

3 Mr. Westerfield at any time concerning his motorhome?

4 A. No.

5 Q. Did you have any discussions with your children

6 concerning Mr. Westerfield’s motorhome?

7 MR. DUSEK: Objection. Irrelevant, Your Honor.

8 THE COURT: Well, I can see how that’s relevant.

9 Overruled.

10 THE WITNESS: No.

11 BY MR. FELDMAN:

12 Q. With regard to your daughter Danielle, would she

13 play hide and seek from time to time?

14 A. She had played hide and seek. I don’t understand

15 the “from time to time.” All kids play hide and seek.

16 THE COURT: Means every once in a while. Do you

17 understand that?

18 THE WITNESS: Yes. All kids — yes.

19 THE COURT: Go ahead, counsel.

20 BY MR. FELDMAN:

21 Q. And with regard to both your son Dylen and your

22 daughter Danielle, is it the case that at least Danielle

23 had walked away from the house and opened the gate in the

24 back yard on a prior occasion?

25 A. No.

26 Q. Is it the case that — or do you have knowledge

27 as to whether or not your son Dylen and your daughter

28 Danielle did climb up and open the gate that you were

Page 670

1 describing earlier on direct examination?

2 MR. DUSEK: Objection. Calls for speculation,

3 unless he saw it.

4 THE COURT: Sustained.

5 BY MR. FELDMAN:

6 Q. Did your daughter get in trouble in your presence

7 for leaving the residence by climbing over the gate into

8 the surrounding area?

9 A. No. Not that I recall.

10 Q. Pardon me?

11 A. No. Not that I recall.

12 Q. For the limited purpose of refreshing your

13 recollection — I’d ask to approach the witness?

14 MR. DUSEK: Objection. No indication he needs to

15 be refreshed, Your Honor.

16 MR. FELDMAN: Just said he didn’t recall.

17 THE COURT: He said he didn’t recall.

18 MR. FELDMAN: Page 605.

19 THE COURT: I assume this is something that he

20 said to —

21 MR. FELDMAN: This is offered —

22 MR. DUSEK: No. It’s Dylen Van Dam.

23 MR. FELDMAN: Offered to refresh this witness’

24 recollection.

25 THE COURT: You can show it to him, but we’re not

26 going to have any recitation of it.

27 BY MR. FELDMAN:

28 Q. Sir, for the limited purpose of refreshing your

Page 671

1 memory, I’ve got a couple of various highlighted, but I

2 want you to read as much of this as you’re comfortable

3 with. And all I want you to do is see whether or not it

4 refreshes your memory as to whether or not your daughter

5 had gotten in trouble for going over the fence.

6 THE COURT: Read it first, and then tell us yes,

7 it does or no, it doesn’t, sir.

8 BY MR. FELDMAN:

9 Q. Have you had an opportunity to read it?

10 A. Yes, I read it. And I’d like to hear the

11 question, again, please.

12 THE COURT: Does it refresh your recollection as

13 to whether or not your daughter got in trouble because of a

14 fence incident?

15 THE WITNESS: No. It does not. I do not believe

16 that —

17 THE COURT: It doesn’t refresh your recollection?

18 That’s all you have to say. Either it does or it doesn’t.

19 THE WITNESS: No.

20 THE COURT: Thank you. Next question.

21 BY MR. FELDMAN:

22 Q. Would your daughter play outside your house?

23 A. Yes.

24 Q. Would she play with the neighborhood children?

25 A. Yes.

26 Q. Did she have a bicycle?

27 A. Yes.

28 Q. Was she permitted to ride her bicycle outside?

Page 672

1 A. Yes.

2 Q. Is there a park within a block or two of your

3 house?

4 A. Yes.

5 Q. A park where parents can take their children to

6 play?

7 A. Yes.

8 Q. And at which children can play without their

9 parents?

10 A. Yes.

11 Q. And what distance, approximately? Is that within

12 a couple of blocks, two blocks, say, of your house, sir?

13 A. At the end of the street.

14 Q. And to your knowledge, did your daughter play in

15 that park?

16 A. Yes.

17 Q. Do you recall the Tuesday before February 1st

18 whether or not your daughter received any kind of injury as

19 a result of some interaction with the dog? Let me say that

20 a better way if you don’t mind. Let me withdraw the

21 question.

22 Do you have knowledge as to whether or not your

23 dog scratched your daughter, I think on Tuesday preceding

24 the 1st of February?

25 A. No.

26 Q. For the limited purpose of refreshing your

27 recollection, your wife just told us that your daughter had

28 been scratched by the dog on Tuesday —

Page 673

1 MR. DUSEK: Objection. Improper, Your Honor.

2 THE COURT: Counsel, that’s improper. He doesn’t

3 recall. Let’s proceed.

4 BY MR. FELDMAN:

5 Q. With regard to your marijuana use, sir,

6 specifically directing your attention to the 1st of

7 February, did you smoke — you told us on direct you smoked

8 some marijuana that night; that’s correct, isn’t it?

9 A. Yes.

10 Q. The source of that marijuana was Rich Brady,

11 wasn’t it?

12 A. Yes.

13 Q. Rich Brady was at your house later that evening;

14 isn’t that correct?

15 A. Yes.

16 Q. Prior to 6:00 P.M. on the 1st of February, had

17 you smoked marijuana?

18 MR. DUSEK: Objection. Irrelevant.

19 THE COURT: Sustained.

20 MR. FELDMAN: Your Honor, ability to perceive,

21 recollect and remember.

22 THE COURT: Sustained.

23 BY MR. FELDMAN:

24 Q. Specifically directing your attention only to the

25 1st of February. Prior to 6:00 P.M. on the 1st of

26 February, had you smoked any marijuana?

27 A. Could you ask that again?

28 Q. Sure. Directing your attention to February 1st.

Page 674

1 This is the night — this is the day of the night your wife

2 went out to Dad’s. Before 6:00 P.M. on that day, had you

3 smoked any marijuana?

4 A. Before in my life?

5 THE COURT: No, sir. On that day.

6 THE WITNESS: On that day?

7 THE COURT: Yes, sir.

8 THE WITNESS: No.

9 BY MR. FELDMAN:

10 Q. Between the 25th of January and the 2nd of

11 February, had you smoked any marijuana?

12 MR. DUSEK: Objection. Irrelevant.

13 THE COURT: Counsel, I don’t see the relevance

14 either.

15 MR. FELDMAN: Pardon me?

16 THE COURT: I don’t see how this is relevant

17 either.

18 MR. FELDMAN: It impeaches a prior witness’

19 testimony.

20 MR. DUSEK: Not his usage.

21 THE COURT: I apologize.

22 MR. DUSEK: Not his usage.

23 THE COURT: I know that. Overruled. But this is

24 only going to be limited between 1-25 and 2-1, and that’s

25 about it.

26 MR. FELDMAN: Yes, Your Honor.

27 THE COURT: And we’re going to move on.

28 MR. FELDMAN: Yes, Your Honor.

Page 675

1 THE COURT: Ask the question again.

2 BY MR. FELDMAN:

3 Q. Between the 25th of January and the 1st of

4 February, did you consume any marijuana?

5 A. I can’t be sure. I may have.

6 Q. And are you in a position to estimate for us how

7 much marijuana you consumed in that time period?

8 A. I don’t know that I consumed any. So I can’t

9 guess as to how much it would be.

10 Q. On the evening of the 1st of February, you told

11 us that you went into the garage and there shared —

12 I think you told us you took a couple of hits, was how you

13 put it; is that right, sir?

14 A. Uh-huh.

15 THE COURT: Yes?

16 BY MR. FELDMAN:

17 Q. I’m sorry. You have to say yes or no, sir.

18 A. Yes.

19 Q. Who was present at the time you did that?

20 A. Myself, Brenda, Denise and Barbara.

21 Q. Could you tell whether or not any of those women

22 had anything of an alcoholic nature prior to your joining

23 them in the garage?

24 A. No.

25 Q. You could not tell?

26 A. Not that I recall.

27 Q. Do you recall when you left the garage whether or

28 not all of the doors in the garage had been completely

Page 676

1 shut?

2 A. No.

3 Q. Was there —

4 A. I don’t recall.

5 Q. Is there something unusual about one of the locks

6 in the garage?

7 A. Yes.

8 Q. Please tell us what that is.

9 A. The door — the door lock to the garage into the

10 house had been reversed so you could lock the kids out of

11 the garage.

12 Q. And why did you do that?

13 A. To lock the kids out of the garage.

14 Q. What was your purpose in wanting to lock the kids

15 out of the garage?

16 A. When we were smoking out there, they couldn’t

17 come out.

18 Q. In other words, when you were smoking marijuana?

19 A. Or cigars or cigarettes.

20 Q. What about having parties?

21 MR. DUSEK: Objection. Assumes there were

22 parties out there. It’s irrelevant.

23 THE COURT: Overruled.

24 THE WITNESS: No.

25 BY MR. FELDMAN:

26 Q. When you say no, what do you mean to communicate,

27 sir?

28 A. Well, it was to keep them from when we were

Page 677

1 smoking out there. There wasn’t parties out there. What

2 do you mean by parties, also?

3 Q. Well, Halloween, for instance.

4 A. I know the children were never in the house for

5 Halloween parties.

6 Q. But if Halloween parties would float —

7 MR. DUSEK: Objection. Irrelevant, beyond the

8 scope.

9 THE COURT: Sustained all the way. Let’s move

10 on.

11 BY MR. FELDMAN:

12 Q. Does your daughter sleep walk?

13 A. She has.

14 Q. And how frequently, if you know, or your best

15 recollection?

16 A. Two or three times.

17 Q. Sir, was there ever a time after your daughter

18 was reported missing that you did any vacuuming of any kind

19 in your house?

20 A. No.

21 Q. Did you do any form of cleanup in your house

22 after your daughter was reported missing?

23 A. Yes.

24 Q. How much after?

25 A. How much cleaning or how long?

26 Q. I’m sorry. The call of the question is how much

27 time before you started cleaning, is what I meant to ask.

28 A. I don’t recall. It was a while. They had dusted

Page 678

1 a second or third time. I think it was the third time they

2 dusted, and they did the other door. So I cleaned off the

3 doorjambs on the other bedroom doors, Derrick’s and

4 Dylen’s.

5 Q. How about yours?

6 A. I don’t — no. They didn’t dust there.

7 Q. Do you recall whether they dusted on the front

8 doors for — the sliders?

9 MR. DUSEK: Objection. Beyond the scope.

10 THE COURT: It’s beyond the scope, but I’m going

11 to allow it just as long as we’re not going to open up a

12 Pandora’s box.

13 MR. FELDMAN: No, Your Honor.

14 THE WITNESS: Yes. As a matter of fact, I

15 specifically recall, also, when we went back over there,

16 they hadn’t dusted any of the windows, and I asked them to

17 dust all the windows all the way around the house.

18 BY MR. FELDMAN:

19 Q. Did they do that?

20 A. As far as I know. I wasn’t there.

21 Q. Okay. I think you told us that there was some

22 kind of a night light in the bathroom upstairs?

23 A. I’m pretty sure there was.

24 Q. Okay. I’m sorry. Are you guessing or are

25 you — you’re really not sure whether it was on —

26 A. There’s usually a night light in there, and it’s

27 one of those night lights that never goes off.

28 Q. So it’s not a high wattage light? It’s just

Page 679

1 enough to allow people to see when they walk into the

2 bathroom; is that right?

3 A. Yes.

4 Q. It’s not designed to illuminate into the hallway;

5 is that correct?

6 A. Correct.

7 Q. Nor is it designed to illuminate into anybody’s

8 bedroom, correct?

9 A. Yes. Correct.

10 Q. Did you tell us, sir, that your boys had

11 night lights in their rooms?

12 A. Dylen had a night light for sure, and Derrick,

13 I’m not sure if he had one or not.

14 Q. With regard to Dylen’s night light, was it a

15 night light similar to the night light that was in the

16 bathroom?

17 A. No.

18 Q. How was it different?

19 A. It was incandescent that goes on when the room

20 gets dark.

21 Q. With regard to that incandescent light, do you

22 know what the wattage was?

23 A. No.

24 Q. Was it one of the lights designed not to cast too

25 much of a light to keep the children awake, but just enough

26 to allow them not to clunk themselves if they got up in the

27 middle of the night?

28 A. Yes.

Page 680

1 Q. And is that generally — can you generalize that

2 to all the night lights that were in the upstairs part of

3 the house?

4 A. Yes.

5 Q. Thank you.

6 Sir, what time did you come home from work, if

7 you recall, on the 1st of February?

8 A. Around 6:30.

9 Q. Is that about the time you usually get home

10 anyway?

11 A. Yes.

12 Q. When you got home, was your wife there?

13 A. She was just pulling in.

14 Q. Okay. When you walked into the house, were there

15 children in the house?

16 A. Yes.

17 Q. That had not been — what you just said — you

18 just told me your wife was just pulling up as you got home

19 on the 1st. Is that accurate?

20 A. Yes.

21 Q. So do you recall whether she had any children

22 with her in the vehicle she was driving?

23 A. No.

24 Q. You don’t remember or she did not? I’m sorry.

25 A. She did not.

26 Q. That means, does it not, then that kids were all

27 left alone in the house before you got home; is that

28 correct?

Page 681

1 A. Yes.

2 Q. And would you routinely — was that usual or an

3 unusual condition, to leave the kids alone?

4 MR. DUSEK: Objection. Irrelevant.

5 THE COURT: Overruled. You may answer.

6 THE WITNESS: Unusual.

7 BY MR. FELDMAN:

8 Q. Did you talk with your wife, and I’m not asking

9 you to tell me what she said, but upon your arrival home,

10 did you speak with your wife concerning the kids?

11 A. Yes.

12 Q. And did you discuss with your wife any plans that

13 she might have had that evening to go out?

14 A. Yes.

15 Q. When did you first learn that she planned to go

16 to Dad’s on the 1st?

17 A. Sometime earlier that week.

18 Q. Sir, before you came to court today, did you

19 review anything for the purpose of refreshing your

20 recollection or helping to testify?

21 A. To refresh my recollection, I reviewed some of

22 the transcripts. Is that what you call them?

23 Q. Of what, sir?

24 A. Of my interviews.

25 Q. Okay. And who provided you those transcripts of

26 your interviews?

27 A. I don’t know. They arrived. My wife had them.

28 Q. Okay. And when did you receive them?

Page 682

1 A. A few days ago.

2 Q. You said, if I heard you correctly, you said you

3 reviewed some of the transcripts of your interviews. Is

4 that correct, sir?

5 A. Yes.

6 Q. I take it then that you — I take it, sir, in

7 your review of those interviews you were able to count

8 at least eight separate interrogations of you by

9 law enforcement?

10 A. No. I did not receive eight.

11 Q. How many do you think you received?

12 A. I think it was six.

13 Q. All right. And do you recall about how thick a

14 stack of documents you reviewed?

15 MR. DUSEK: Objection. Relevancy, Your Honor.

16 THE COURT: Sustained.

17 BY MR. FELDMAN:

18 Q. Do you have a specific recollection of what

19 documents and which interviews were reviewed by you, sir?

20 A. Ask that again, please.

21 Q. Do you have a specific recollection of what

22 precisely you reviewed in connection with your interviews

23 of law enforcement?

24 A. No.

25 Q. But, again, you told me it was about six of your

26 interviews, correct?

27 A. Yes.

28 Q. Having reviewed those reports of your interviews,

Page 683

1 do you recall your interview with officer Flores at

2 1615 hours, that’s 4:15 in the afternoon, on the 2nd of

3 February?

4 A. I didn’t read all of them, and I’m not good with

5 names. So I may or may not have read it.

6 Q. Okay. How about do you recall whether or not you

7 read an interview that you engaged in, again on the 2nd, at

8 about 6:47 P.M.?

9 A. I didn’t read all of them and I didn’t receive

10 all of them. I don’t know. I can’t recall specifically

11 which ones I read.

12 Q. Do you still have the transcripts?

13 A. I believe they’re at my house. I’m not sure.

14 Q. Well, you didn’t throw them out, did you?

15 A. I didn’t, but there’s a mess at my house right

16 now. I don’t know.

17 Q. With regard to the transcripts that your wife

18 produced, did you have any discussions with her concerning

19 any aspects of the transcripts that she produced?

20 A. My transcripts that she gave me?

21 Q. Yes, sir.

22 A. No.

23 Q. So you never talked to your wife about — well,

24 did you ever talk to your wife about how you were being

25 treated by law enforcement?

26 MR. DUSEK: Objection. Irrelevant.

27 THE COURT: Sustained.

28 /////

Page 684

1 BY MR. FELDMAN:

2 Q. Did you ever talk to your wife about any aspect

3 of the substance of the information that you communicated

4 to law enforcement as reflected in your review of the

5 transcripts that your wife gave to you?

6 MR. DUSEK: Objection. Vague.

7 THE COURT: Do you understand the question?

8 THE WITNESS: No.

9 THE COURT: Sustained.

10 BY MR. FELDMAN:

11 Q. Did you ever review — strike that.

12 Did you discuss with your wife Brenda any aspect

13 of your review of the transcripts that she provided to you?

14 A. Only to the point that we were not supposed to

15 discuss it.

16 Q. Okay —

17 THE COURT: Counsel, this isn’t meant as a

18 criticism or a hint, but how much longer?

19 MR. FELDMAN: I really don’t know, judge. Not a

20 whole bunch, but not a whole little either, and could it be

21 quicker.

22 THE COURT: Okay. That’s a fair answer.

23 We’re in recess until five minutes after 3:00.

24 Please remember my admonition, sir. Thank you.

25

26 (Recess.)

27 /////

28 /////

Page 685

1 Peter Damon Van Dam,

2 Resumed the stand and testified further as follows:

3

4 THE COURT: Remember you’re still under oath,

5 okay?

6 THE WITNESS: Yes.

7 THE COURT: Please.

8

9 CROSS-EXAMINATION (RESUMED)

10 BY MR. FELDMAN:

11 Q. Sir, I’d like to now direct your attention to

12 communication with your — well, strike that.

13 Between the week of January the 25th and

14 February the 1st, did you have any conversations with your

15 wife concerning hers and your daughter’s sale of girl scout

16 cookies to David Westerfield?

17 MR. DUSEK: Objection. Irrelevant. Beyond the

18 scope.

19 THE COURT: Overruled.

20 THE WITNESS: Yes.

21 BY MR. FELDMAN:

22 Q. And with regard to that conversation, did you

23 receive a phone call at work from your wife?

24 A. Yes.

25 Q. And did your wife say to you, quote, you won’t

26 believe this, end quote?

27 A. I can’t say that that was quotable.

28 Q. I’m sorry?

Page 686

1 A. I can’t say that that was the exact thing she

2 said, no.

3 Q. All right. You recall, though, being asked

4 similar questions by law enforcement; is that right?

5 A. Yes.

6 Q. Didn’t you tell your wife that you thought it was

7 funny to find one of your own neighbors possibly alluding

8 to a swinging sexual lifestyle when you were new to it

9 yourself?

10 MR. DUSEK: Objection. Beyond the scope.

11 THE COURT: Ask — I want to hear the question.

12 MR. FELDMAN: Yes.

13 THE COURT: I didn’t get to here the question.

14 BY MR. FELDMAN:

15 Q. Didn’t you tell your wife when she talked to you

16 in that conversation that you thought it was funny to find

17 one of your neighbors possibly alluding to a swinging

18 sexual lifestyle when they were new to it — when you were

19 new to it yourself?

20 THE COURT: The objection is?

21 MR. DUSEK: Beyond the scope, hearsay,

22 irrelevant, 352.

23 THE COURT: It’s irrelevant. Sustained. Next

24 question.

25 MR. FELDMAN: It’s impeachment of a prior

26 witness, Your Honor.

27 THE COURT: Sustained. Next question. And

28 352.

Page 687

1 MR. FELDMAN: That’s a different issue.

2 Thank you.

3 THE COURT: Next question.

4 BY MR. FELDMAN:

5 Q. Did your wife talk to you about whether or not

6 she received a business card from Mr. Westerfield?

7 MR. DUSEK: Objection. Irrelevant. That’s

8 hearsay. Beyond the scope.

9 THE COURT: Overruled.

10 THE WITNESS: I don’t recall a business card, no.

11 BY MR. FELDMAN:

12 Q. Did your wife tell you that she had given yours

13 and — your name and telephone number, your home telephone

14 number to David Westerfield?

15 A. I do recall that in that conversation a number

16 was given, a phone number was given, but I don’t recall who

17 gave who the number.

18 Q. Okay. I’m sorry. You said I recall during that

19 conversation —

20 A. I recall — well, no. Actually I recall at some

21 point my wife told me a number was exchanged, but I don’t

22 recall who gave who the phone number.

23 Q. So what you just told me was your wife —

24 A. Someone gave someone a phone number.

25 Q. Not that both parties exchanged numbers, but just

26 that a person provided a phone number?

27 A. I don’t know — I don’t know.

28 Q. Would it be unusual from your standpoint for your

Page 688

1 wife to be giving her home number out to people she didn’t

2 know well?

3 MR. DUSEK: Objection. Irrelevant.

4 THE COURT: Sustained. Next question.

5 BY MR. FELDMAN:

6 Q. With regards to — on direct examination you

7 talked about taking garbage out at some point in time. Do

8 you recall that? Just jumped subjects on you. Sorry, sir.

9 THE COURT: We jumped dates too, didn’t we?

10 MR. FELDMAN: Probably.

11 THE WITNESS: Are we talking about the morning of

12 her disappearance, the 2nd?

13 BY MR. FELDMAN:

14 Q. What I’m trying to direct your attention to is

15 the specific part of your direct examination where you

16 discussed removing garbage. And was that on the date

17 that —

18 A. That was on — yes.

19 Q. Please — no.

20 A. Yes. I took the garbage out.

21 Q. What date, please?

22 A. The 2nd.

23 Q. Was that the date — that was the day you

24 reported your daughter was missing?

25 A. Yes.

26 Q. And when you took the garbage out, does that mean

27 you took it to the street because it was trash day?

28 A. I took it from the kitchen bin to the outside bin

Page 689

1 on the side of the house.

2 Q. And the outside bins don’t go out to the street

3 until whatever trash day happens to be in your

4 neighborhood; is that right, sir?

5 A. Yes.

6 Q. When you, in fact, took the trash out, the side

7 garage door was locked; isn’t that correct?

8 A. I believe it was.

9 Q. Directing your attention to the early morning

10 hours, I guess it’s the 2nd, and I want to direct your

11 attention, you said about 1:45 in the morning, the dog was

12 wining, okay? That’s what I’m trying to focus on at the

13 moment. How much noise does that dog make when it whines?

14 A. How do I explain how much noise?

15 Q. Enough to wake you up?

16 A. Just barely enough to wake me up at that time.

17 Q. Okay. Enough to wake your wife up?

18 A. I don’t know.

19 Q. Okay. You mentioned on direct that the dog,

20 in fact, although it was purchased from someplace where it

21 wasn’t supposed to bark, that, in fact, the dog does from

22 time to time bark; isn’t that right?

23 A. Yes.

24 Q. How big is that dog?

25 A. About 60 pounds.

26 Q. And how about is there a way for you to describe

27 height?

28 A. Knee high, a little over knee high.

Page 690

1 Q. Your knees?

2 A. My knees.

3 Q. How tall are you, sir?

4 A. 5’7″.

5 Q. You told us, I think, that after your wife left,

6 you continued to play video games with your son; is that

7 right?

8 A. Yes.

9 Q. And you had another beer; was that correct?

10 A. Yes.

11 Q. Did you smoke any marijuana?

12 A. No.

13 Q. Was there marijuana in the house?

14 MR. DUSEK: Objection. Irrelevant.

15 THE COURT: Sustained. Next question.

16 BY MR. FELDMAN:

17 Q. What kind of beer were you drinking?

18 A. I’m not sure.

19 Q. Was it a small, medium or large type can or

20 bottle?

21 A. It was a 12-ounce can or bottle, but I don’t

22 recall the brand.

23 Q. All right. And about what time do you recall

24 finishing that beer?

25 A. The last beer with —

26 Q. Yes, sir.

27 A. I don’t know.

28 Q. Well, was it before or after you decided it was

Page 691

1 time for — or it was the kids’ bedtime?

2 A. It was before bedtime. It was definitely before

3 10:00.

4 Q. Okay. Before 10:00? Is that what you just said,

5 sir? I’m sorry.

6 A. Yes.

7 Q. At some point that evening you decided it was

8 bedtime and you directed your kids to get themselves ready

9 to go to bed; is that correct?

10 A. Yes.

11 Q. And you allowed them to go upstairs and do

12 whatever they do to get themselves prepared to go to bed,

13 right?

14 A. Yes.

15 Q. You stayed downstairs, I think you told us, and

16 did some cleanup in the house; is that right?

17 A. Yes.

18 Q. Is it your custom and practice when you go to bed

19 to make sure all the doors are locked?

20 A. Yes.

21 Q. On this particular evening, that would be the 1st

22 of February or there abouts, did you, consistent with your

23 custom and practice before you went to sleep, make sure all

24 the doors were locked?

25 A. I don’t know.

26 Q. Do you have a recollection of seeing, before you

27 went — before you decided it was time for you to go to

28 bed, any of the blinking lights on the security system?

Page 692

1 A. Before I went to bed the first time?

2 Q. Well, I’m sorry. When you say the first time,

3 I’m thinking somewhere around 10:00. Is that what you mean

4 to communicate?

5 A. Yeah. No, I don’t recall seeing any lights

6 flashing.

7 Q. At 1:45 or there abouts, that was the next time

8 you woke up, that was with the dog wining, right?

9 A. Yes.

10 Q. And it was at that point that you walked the dog

11 downstairs; is that right?

12 A. Yes.

13 Q. At that point do you recall seeing any

14 red flashing lights?

15 A. No.

16 Q. Nor do you recall hearing, I think you described

17 it as a beeping of some kind, or some sounds that would be

18 consistent with the alarm being triggered?

19 A. No. I don’t recall that either.

20 Q. After you let the dog out, did you go back

21 upstairs?

22 A. Yes.

23 Q. Do you have a specific recollection as to whether

24 you actually closed the sliding glass door that you let the

25 dog out on?

26 A. Yes.

27 Q. Now, you told us that at some point later you

28 looked to see whether it would be possible to pry open that

Page 693

1 particular door; is that correct, sir?

2 A. Yes.

3 Q. And you engaged in tests to determine whether or

4 not you could, using a screwdriver or something,

5 get — allow yourself in, even though it was locked; is

6 that right?

7 A. Yes.

8 Q. Do you recall, though, before you engaged in

9 those tests, whether or not the door had any prior marks?

10 A. No.

11 Q. When you say no, do you mean to say you do not

12 recall whether it did or it’s your memory it did not?

13 A. I do not recall whether it did.

14 Q. With regard to magnets, you testified on

15 direct examination that apparently you were able to do

16 something using magnets that would keep the security system

17 disarmed. Do you recall at any time that evening or the

18 next morning seeing any magnets of any kind?

19 A. No.

20 Q. Sir, what is your profession?

21 A. Software engineer.

22 THE COURT: When did you do these tests to

23 determine whether or not you could pry your way into the

24 door?

25 THE WITNESS: Sometime between a week ago and

26 two weeks ago.

27 THE COURT: Thank you.

28 /////

Page 694

1 BY MR. FELDMAN:

2 Q. Some period of time after you let the dog come

3 in, I think you told us you went back upstairs. Did you

4 turn the TV on?

5 A. Which time?

6 Q. I’m sorry. I’m trying to — I’m — now I’m

7 trying to move chronologically.

8 THE COURT: We were at 1:45 in the morning,

9 counsel.

10 MR. FELDMAN: Yes.

11 Q. Sometime after 1:45 you let the dog back in,

12 right; is that correct, sir?

13 A. Yes.

14 Q. Then you went back upstairs to bed, right?

15 A. Yes.

16 Q. At that point in time did you turn the TV on?

17 A. Yes.

18 Q. But you did not turn the overhead lights on; is

19 that correct?

20 A. Correct.

21 Q. Why?

22 A. I don’t know. Why turn them on? I don’t

23 understand the question.

24 Q. Okay. Were you having trouble sleeping?

25 A. No.

26 Q. Were you watching the television to stay awake,

27 expecting that your wife would shortly be home?

28 A. Yes.

Page 695

1 Q. And were you expecting her to come home with

2 company?

3 A. I was expecting her to come home with at least

4 who she went out with.

5 Q. All right. And that would be Barbara and Denise;

6 is that right?

7 A. Yes.

8 Q. And you knew Barbara and Denise; isn’t that

9 correct?

10 A. Yes.

11 Q. And you had a relationship with Barbara; isn’t

12 that correct?

13 MR. DUSEK: Objection. Irrelevant, 352.

14 THE COURT: Overruled.

15 THE WITNESS: Yes.

16 BY MR. FELDMAN:

17 Q. That evening at about 2:00 your wife came home;

18 is that correct, sir?

19 A. Yes. 1:55.

20 Q. I’m sorry. Did you hear her come into the house?

21 A. Yes.

22 Q. Was that because the security system made

23 whatever noises it makes?

24 A. I heard the voices, is what I recall hearing.

25 Q. And did you hear male voices, as well?

26 A. Yes, I did.

27 Q. At some point did your wife go up the stairs with

28 Barbara?

Page 696

1 A. I don’t know if she went up the stairs with

2 Barbara or not. I know both her and Barbara were in the

3 room.

4 Q. I’m sorry. In the room? What room?

5 A. In the bedroom I was in.

6 Q. Okay. Both your wife and Barbara went into the

7 bedroom you were in before you got up out of bed; is that

8 correct?

9 A. Yes.

10 Q. And then your wife left you alone with Barbara in

11 your bedroom; is that correct?

12 A. Yes.

13 Q. And then Barbara got into bed with you; is that

14 correct?

15 A. That’s not the proper order, if order matters.

16 Q. Okay. Please tell me what’s the correct order.

17 A. Barbara got in bed with me first.

18 Q. Oh, Barbara got in bed with you before your wife

19 left the room; is that correct?

20 A. Yes.

21 Q. And when Barbara got in bed with you before you

22 left the room, was it then that you put your arm around her

23 and started to kiss her?

24 A. Yes.

25 Q. And that was in the presence of you wife?

26 A. I can’t say for sure whether she was in the room

27 or not at that moment.

28 Q. And how long did you stay in bed with Barbara?

Page 697

1 A. About five minutes.

2 Q. And in that — did it seem to you when Barbara

3 came upstairs that she was under the influence of anything?

4 A. Yes.

5 Q. She was intoxicated, wasn’t she?

6 A. I don’t know enough to say that she was

7 intoxicated, but she was tired.

8 Q. Well, I just asked you a second ago whether she

9 was under the influence of something, and I thought I heard

10 you say yes. Could you please tell me what you thought she

11 was under the influence of?

12 A. Alcohol. That does not directly lead to

13 intoxication, in my mind.

14 Q. All right. So you’re just making a distinction

15 between alcohol use and intoxication; is that right?

16 A. Yes.

17 Q. And can Barbara handle — based on your

18 experience, does Barbara handle her liquor pretty well?

19 A. I don’t know.

20 Q. When — after five minutes or however much

21 time — well, strike that.

22 When is the next time you recall seeing your wife

23 when you were in bed with Barbara?

24 A. I believe she came back in the room and asked us

25 to come downstairs.

26 Q. And do you recall what she said?

27 A. Specifically, no.

28 Q. And isn’t it true that you did not — you

Page 698

1 deliberately did not tell law enforcement of the events

2 you’ve just testified to in the first three interviews you

3 had with them?

4 MR. DUSEK: Objection. Asked and answered.

5 THE COURT: Overruled.

6 THE WITNESS: I can’t say the first three. I can

7 say the first one.

8 BY MR. FELDMAN:

9 Q. Okay. But you can say it’s true, isn’t it, you

10 made a conscious decision to withhold from the police your

11 activity that evening; isn’t that correct?

12 MR. DUSEK: Objection. Argumentative.

13 THE COURT: Overruled.

14 THE WITNESS: I made a decision that I didn’t

15 believe it was relevant.

16 BY MR. FELDMAN:

17 Q. Okay. So you made the judgment as to what was

18 relevant or not for purposes of your deciding what to tell

19 them; is that a fair statement?

20 A. Could you say it again?

21 Q. You made the judgment as to what was relevant or

22 not relevant to the police for purposes of you deciding

23 what to tell them?

24 A. Yes.

25 Q. And did you also deliberately decide to withhold

26 from them the fact that you had consumed marijuana that

27 evening?

28 A. I don’t recall that being a conscious decision at

Page 699

1 all.

2 Q. Do you recall it as something that — well, isn’t

3 it true that you were asked the question whether or not you

4 had any drugs that night, and you specifically said no?

5 A. I do not recall being asked that question.

6 Q. Okay —

7 THE COURT: Let counsel know.

8 MR. FELDMAN: I’m showing it to counsel, judge.

9 THE COURT: All right.

10 MR. DUSEK: I have not seen this document before

11 and have no way of knowing whether it’s verified or not.

12 MR. FELDMAN: This is — what I’m showing to

13 counsel, Your Honor —

14 THE COURT: Before we get a big speech, let me

15 see it, please.

16 MR. FELDMAN: Sure. Approach?

17 THE COURT: Yes.

18 MR. FELDMAN: How?

19 THE COURT: Give it to the bailiff, please.

20 Remember this isn’t a trial department. Thank you.

21 Counsel, I have no way of knowing what this is.

22 You might be able to talk to Mr. Dusek quietly and —

23 MR. FELDMAN: I did.

24 THE COURT: And I assume —

25 MR. FELDMAN: I communicated to counsel what it

26 was.

27 THE COURT: Does it come from the discovery?

28 MR. DUSEK: No.

Page 700

1 MR. FELDMAN: It’s a transcript of an audio tape

2 that was provided in discovery of this gentleman’s

3 interview with officer Redden. That’s what it is. We just

4 got it about 11:00 last night or whatever time we were able

5 to get it E-mailed.

6 THE COURT: You don’t recognize it, counsel?

7 MR. DUSEK: No. Nor have I seen all the rest of

8 the pages.

9 MR. FELDMAN: I can — happy to give counsel the

10 rest of the pages.

11 THE COURT: I’m going to take counsel’s

12 representation that — oh, it’s a transcript of an audio

13 tape. So may I assume that you had it transcribed?

14 MR. FELDMAN: We had it transcribed, yes.

15 THE COURT: Okay. No wonder he hasn’t seen it.

16 I’m going to let you show it to him, counsel,

17 without reading it into the record, and ask him whether or

18 not it refreshes his recollection.

19 MR. FELDMAN: Thank you, Your Honor. I just want

20 to get a couple other pages so I give the witness context,

21 and I’ll show them to counsel.

22 THE COURT: It’s your representation that what

23 you are showing him are transcripts of the audio tapes of

24 this gentleman’s interview with the police?

25 MR. FELDMAN: Yes.

26 THE COURT: That was provided to you in

27 discovery? Am I correct?

28 MR. FELDMAN: The audio tape was provided, not

Page 701

1 the transcript, yes.

2 THE COURT: I understand that.

3 MR. FELDMAN: Yes. That’s my representation.

4 THE COURT: That’s your representation?

5 MR. FELDMAN: Yes, Your Honor.

6 THE COURT: Okay. Now, before — counsel, you

7 have several pieces of paper there.

8 MR. FELDMAN: I just wanted to show prosecution

9 counsel first, and then I was going to give the witness one

10 or two pages, but I want counsel —

11 THE COURT: Show him the context, please.

12 MR. DUSEK: Perhaps we could have a copy of it,

13 also.

14 THE COURT: Let’s worry about that —

15 MR. FELDMAN: I can give it to him on disk.

16 THE COURT: Let’s worry about that later and try

17 and finish this case today.

18

19 (Discussion off record.)

20

21 THE COURT: All right. Have you shown counsel?

22 MR. FELDMAN: I have, and I think —

23 THE COURT: I realize, counsel, you haven’t seen

24 it. His representation is it’s an exact transcription.

25 I’m not going to allow it to be read in the record, but for

26 purposes of refreshing this gentleman’s recollection, I’m

27 going to allow him to show it. We should mark those

28 pages.

Page 702

1 MR. FELDMAN: Yes, Your Honor.

2 THE COURT: For posterity.

3 MR. FELDMAN: Your Honor, just then for the

4 record, if I could please describe page 30 and 31 of the

5 transcript of the witness’ interview with Paul Redden on

6 February 2, 2002. There’s two pages. This is page 30 and

7 31 of the transcription that we had rushed up last night.

8 THE COURT: All right.

9 MR. FELDMAN: And I guess that would be defense

10 next.

11 THE COURT: Gail?

12 THE CLERK: K.

13 THE COURT: K as in kitchen?

14 MR. FELDMAN: Yes.

15 THE COURT: Yes.

16 MR. FELDMAN: Your Honor, for the record I put —

17 THE COURT: I want the record to reflect the

18 reason I’m having it marked is because only you have seen

19 it, and it may be important in the future.

20 MR. FELDMAN: No problem. No problem.

21 THE COURT: Okay.

22 MR. FELDMAN: Your Honor, for the record, I’ve

23 had marked as defendant’s exhibit K two pages of a

24 transcript.

25 Q. Sir, I’d ask you to please — the specific

26 quotation relates to page 31, which is highlighted in

27 yellow, but I just wanted to give this to you so you’re

28 comfortable with the context.

Page 703

1 THE COURT: When you finish reading it, please

2 let us know that you’re finished.

3 THE WITNESS: Okay. I’m done.

4 BY MR. FELDMAN:

5 Q. Isn’t it true, sir, that you were asked by

6 officer —

7 MR. DUSEK: Objection, Your Honor. Improper

8 impeachment. Contrary to the court’s order.

9 THE COURT: Counsel?

10 MR. FELDMAN: I was going to ask —

11 THE COURT: Sustained. Let’s not — now you can

12 ask him your question. Your question is after reading that

13 document whether or not it refreshes his recollection.

14 MR. FELDMAN: Okay.

15 Q. Sir, having read that document, did that now

16 refresh your recollection as to a portion of your interview

17 with officer Redden?

18 A. Yes.

19 Q. It’s correct, is it not then, that officer Redden

20 was asking you questions concerning your activities on the

21 night of February 1st, correct?

22 A. Yes.

23 Q. And he specifically asked you whether you were

24 drinking anything that night; isn’t that true?

25 A. Yes.

26 Q. And you told him you had two beers with dinner

27 and you thought you had one more playing video games; isn’t

28 that right?

Page 704

1 A. Yes.

2 Q. Then he asked you whether or not you had any

3 drugs that night, didn’t he?

4 A. Yes.

5 Q. And you said no, didn’t you?

6 A. Yes.

7 Q. That wasn’t true, was it?

8 A. No.

9 Q. When you went downstairs after — well, at some

10 point when you were in bed with Barbara, while Barbara was

11 on the bed with you or however, your wife asked you to go

12 downstairs; is that correct?

13 A. Yes.

14 Q. Do you recall what words she used to get you to

15 go downstairs?

16 A. No.

17 Q. Did you agree ultimately and go downstairs?

18 A. Yes.

19 Q. Before you went downstairs, did you have to get

20 out from underneath the covers?

21 A. Yes.

22 Q. Was Barbara in the room?

23 A. Yes.

24 Q. How were you dressed?

25 A. In my underwear.

26 Q. Nothing else?

27 A. Nothing else.

28 Q. And was Barbara there? Did you then get dressed

Page 705

1 in Barbara’s presence?

2 A. Yes.

3 Q. And you went downstairs, correct?

4 A. Yes.

5 Q. Didn’t Barbara when you got out of bed first come

6 over and start to kiss you?

7 A. Yes.

8 Q. When you got downstairs, were people smoking

9 marijuana then?

10 A. No.

11 Q. Did you smoke any more marijuana that evening?

12 A. No.

13 Q. When you walked downstairs to meet the group that

14 had arrived, do you recall whether the security lights were

15 blinking?

16 A. They — no.

17 Q. At some point after you came downstairs —

18 THE COURT: I’m sorry. Was the answer is you

19 don’t recall or they were not blinking?

20 THE WITNESS: They were not blinking.

21 THE COURT: Thank you.

22 BY MR. FELDMAN:

23 Q. When you went downstairs, did Brenda say anything

24 to you about there being an open door?

25 MR. DUSEK: Objection. Hearsay, irrelevant.

26 THE COURT: Counsel?

27 MR. FELDMAN: I’ll withdraw the question.

28 THE COURT: Thank you.

Page 706

1 BY MR. FELDMAN:

2 Q. Did you when you went downstairs, did you have

3 any reason to believe that any of the doors in your house

4 had been opened?

5 MR. DUSEK: Objection. Irrelevant, based upon

6 hearsay.

7 THE COURT: I heard irrelevant, and what’s the

8 next?

9 MR. DUSEK: And the answer’s got to be based upon

10 hearsay.

11 THE COURT: Sustained.

12 BY MR. FELDMAN:

13 Q. Sir, did you look to see whether or not any doors

14 were opened at about 2:30 or so when you went downstairs?

15 A. No.

16 Q. Ultimately, somewhere around 2:30, quarter of

17 3:00-ish you went back to sleep with your wife; is that a

18 fair statement?

19 A. Yes.

20 Q. Would you like a break, sir?

21 A. No.

22 Q. Okay. You know all you have to do is ask, right?

23 A. Yes.

24 Q. Approximately what time — well, strike that.

25 Were you having trouble sleeping that evening?

26 MR. DUSEK: Objection. Irrelevant.

27 THE COURT: Overruled. I’d like to have a time

28 reference.

Page 707

1 MR. FELDMAN: I’m sorry. I’ve tried to move from

2 between 2:30 to a quarter of 3:00 on the early morning of

3 the 2nd, Your Honor.

4 THE COURT: Okay.

5 THE WITNESS: Yes.

6 BY MR. FELDMAN:

7 Q. You were having trouble sleeping?

8 A. Yes.

9 Q. And have you described that as a restless sleep

10 or was there something that was causing you to have trouble

11 sleeping, sir?

12 A. Restless sleep.

13 Q. All right. And did something happen somewhere

14 around 3:30 that caused you to get up again?

15 A. Yes.

16 Q. Can you tell us what it was, please?

17 A. I believe I had to go to the bathroom is the

18 reason I woke.

19 Q. And did you get up and go to the bathroom?

20 A. When I woke up, I noticed the light on on the

21 alarm system.

22 Q. Okay.

23 A. And I don’t recall whether I went to the bathroom

24 first or after —

25 Q. Regardless —

26 A. — I shut the door.

27 Q. You did something as a result of your seeing the

28 light on on the alarm system; is that correct, sir?

Page 708

1 A. Yes.

2 Q. Please tell us what you did.

3 A. I went downstairs and closed the back door.

4 Q. Now, the back door that you just made reference

5 to, I thought you’d indicated on direct, was a door that

6 was close to the I guess table that Keith and Rich and

7 Denise and Barbara and you and your wife had been seated at

8 at about 2:15 or so; is that right?

9 A. Yes.

10 Q. And you thought that perhaps one of the women or

11 men had been smoking and had left the door open to let the

12 smoke out; is that right, sir?

13 A. Yes.

14 Q. Did you then close the door?

15 A. Yes.

16 Q. At that point in time did you notice anything at

17 all suspicious?

18 A. No.

19 Q. Was the dog behaving in a way that caused you to

20 feel that the dog was — not whining, but engaging in some

21 behavior different than what you were accustomed to?

22 A. The dog was in my son’s room at that time.

23 Q. Please tell me when did the dog go in your son’s

24 room.

25 A. When we went to bed. When Brenda and I went to

26 bed.

27 Q. All right. So when it was time for you and

28 Brenda to go to bed, the dog was put in your son’s room; is

Page 709

1 that correct?

2 A. Yes.

3 Q. That would be different, though, wouldn’t it,

4 than what normally you would do?

5 A. Than a normal night, yes, but she had no bed in

6 our room. So I put her in Derrick’s room where she had a

7 bed to sleep on.

8 Q. Because you didn’t want the dog to make a mess,

9 right, in your room anyway?

10 A. To make noise in our room.

11 Q. To make noise. What kind of noise?

12 A. She doesn’t sleep well without a bed.

13 Q. Okay. At 3:30, did you let the dog out?

14 A. I don’t recall.

15 Q. Do you recall being interviewed by an officer

16 named Thrasher on or about the 12th of February?

17 A. Not specifically.

18 Q. With regard to the stack of transcripts that your

19 wife gave you or that was provided to you, did you have an

20 opportunity to review that particular transcript?

21 A. I don’t recall specifically.

22 Q. Is it the case that at 3:30 or

23 there abouts — I’m sorry. Let me withdraw that. Is it

24 the case that between 2:45 and 3:30 you were restless for a

25 while and that you might have dozed off?

26 A. Yes.

27 Q. And is it the case that after a while you got up

28 because you had to use the bathroom?

Page 710

1 A. Yes.

2 Q. And that it was at that point in time that you

3 noticed that there was the red light on the alarm pad?

4 A. Yes.

5 Q. And then at that point you said something to

6 Brenda, but she did not respond; is that correct?

7 A. I don’t recall saying anything to Brenda at that

8 point right now.

9 MR. FELDMAN: Counsel, 679.

10 THE COURT: Counsel, if he said something to

11 Brenda, she didn’t respond, how is it really relevant?

12 MR. FELDMAN: Just whether or not he said

13 something. I thought he indicated he did.

14 THE COURT: Let’s just move on, please.

15 MR. FELDMAN: Okay.

16 Q. Isn’t it the case that you went downstairs to let

17 the dog out and check on the door?

18 A. I don’t recall.

19 Q. Didn’t you tell the police that at 3:30 you went

20 downstairs to let the dog out and check the door?

21 A. I may have said that, but my memory is not clear

22 now.

23 MR. FELDMAN: Excuse me.

24

25 (Discussion off record.)

26

27 BY MR. FELDMAN:

28 Q. I think it’s the case that you told us that when

Page 711

1 you and Brenda went to bed, you put the dog in Derrick’s

2 room, right?

3 A. Yes.

4 Q. Then if it’s at 3:30, in order for you to get the

5 dog outdoors, you’d have to open Derrick’s room; is that

6 right, to let the dog out?

7 A. Yes.

8 Q. And do you recall whether or not you did that?

9 A. No.

10 MR. DUSEK: Objection. Asked and answered.

11 THE COURT: Sustained.

12 BY MR. FELDMAN:

13 Q. Did you ask —

14 THE COURT: Hold on. I get a chance. Sustained.

15 The answer’s stricken. Next question.

16 MR. FELDMAN: Excuse me.

17 Q. Did you hear anything unusual at 3:30 in the

18 evening — I’m sorry — 3:30 in the morning —

19 A. Not that I recall.

20 MR. FELDMAN: Excuse me.

21

22 (Discussion off record.)

23

24 MR. FELDMAN: Your Honor, I have no further

25 questions at this time.

26 THE COURT: Anything further?

27 MR. DUSEK: Nothing.

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

Page 712

1 Thank you very much.

2 MR. DUSEK: I’d ask that People’s 1 through 6 be

3 admitted into evidence.

4 THE COURT: Any objections?

5 MR. FELDMAN: We need to address that,

6 Your Honor. Yes.

7 THE COURT: Okay. Address it.

8 MR. FELDMAN: I’m recalling what the exhibits

9 are.

10 THE COURT: I understand. 1 is the flier for the

11 missing person.

12 MR. FELDMAN: No objection.

13 THE COURT: Received.

14 You might catch it before I do. 2 is a picture

15 of the scene where the body was found.

16 MR. FELDMAN: No objection.

17 THE COURT: It’s received.

18 3 is a picture, that’s what I said, the

19 scratches.

20 MR. FELDMAN: Submit.

21 THE COURT: Received.

22 4 —

23 MR. FELDMAN: We have objections to.

24 THE COURT: You have objections. Well, let’s

25 take them one at a time, okay? I don’t mean one picture at

26 a time. I meant one group at a time.

27 MR. FELDMAN: Yes, Your Honor. I’m sorry. The

28 photos or do you want to defer the photos and rule on 6

Page 713

1 which I’m going to submit?

2 THE COURT: 6 is received.

3 All right. So we want to talk about 4 and we

4 want to talk about 5, correct?

5 MR. FELDMAN: Yes.

6 THE COURT: 4 are the photos, and 5 —

7 MR. FELDMAN: Your Honor, I’m sorry, but we need

8 the camera off of us while we do this. Can we ask at least

9 to defer — deflect the camera?

10 THE COURT: Are you talking about the pictures?

11 MR. FELDMAN: I’m talking about counsel’s

12 discussions at this moment concerning what objections need

13 to be made with regard to People’s exhibits 4 and 5.

14 THE COURT: Yes. I think they’re entitled to

15 that privacy.

16 MR. FELDMAN: Thank you.

17 THE COURT: So do you want to just go off the

18 record for a few minutes?

19 MR. FELDMAN: May we do that?

20 THE COURT: Without leaving.

21 MR. FELDMAN: That would be fine. Please.

22 THE COURT: So let’s — we’re off the record.

23 We’re going to stay here, and I would ask that the cameras

24 not view what’s being — what’s transpiring here, since

25 nothing is transpiring.

26

27 (Discussion off record.)

28 /////

Page 714

1 MR. FELDMAN: Your Honor, we’re prepared.

2 THE COURT: You’re prepared?

3 MR. FELDMAN: Yes.

4 THE COURT: Okay. What are your objections, if

5 any?

6 MR. BOYCE: Your Honor, we object to exhibits 4

7 and 5 because they are not child pornography, as defined by

8 3.11, for two reasons. 1, they don’t depict underage

9 children engaged, and secondly, they’re not engaged in

10 sexual activity.

11 THE COURT: Do you want to respond?

12 MR. DUSEK: I believe they do. The court can

13 certainly make that determination when it looks at them.

14 Also, they are relevant to show motive on this case.

15 MR. FELDMAN: Your Honor, on the issue of motive,

16 I think counsel’s suggestion is that if anybody has a

17 picture of a naked woman they then have a motive to kill

18 somebody? That really does push the logic a bit.

19 THE COURT: That’s his argument, and I’m sure his

20 argument isn’t as simple as that. The objections are

21 overruled. 4 and 5 will be received. However, they will

22 be sealed pursuant to 1417.8, pursuant to the stipulation

23 of the parties, they will be received.

24 MR. FELDMAN: I think the record doesn’t reflect

25 that counsel — and there would be a stipulation that the

26 court could seal those.

27 THE COURT: Right. That’s correct. Exactly.

28 Okay.

Page 715

1 MR. DUSEK: People rest.

2 THE COURT: Counsel?

3 MR. FELDMAN: Your Honor, frankly we didn’t know

4 what time we were going to finish, and we don’t have any

5 witnesses here.

6 THE COURT: Well, that’s — that’s not my real

7 question. My real question is are there going to be

8 witnesses?

9 MR. FELDMAN: We intend to call witnesses,

10 Your Honor.

11 THE COURT: I didn’t hear you.

12 MR. FELDMAN: I’m sorry. We intend to call

13 witnesses.

14 THE COURT: And how many witnesses do we intend

15 to call?

16 MR. FELDMAN: At least several, and we’ll analyze

17 tonight how many more based upon the testimony of the

18 witnesses today.

19 THE COURT: Counsel, you understand that there

20 are severe restrictions on —

21 MR. FELDMAN: I’d be happy to make an offer of

22 proof so perhaps you could tell us whether it’s appropriate

23 or not.

24 THE COURT: I think that’s a good idea.

25 MR. DUSEK: Perhaps we could do that at

26 side bar.

27 MR. FELDMAN: Your Honor, if we’re being

28 compelled to make an offer of proof on the prosecution’s

Page 716

1 motion, I think it should be made in open court. I mean

2 what are we hiding?

3 THE COURT: We’re not going to make it at

4 side bar. If we’re going to do it, we’re going to do it

5 now. Just briefly. Go ahead.

6 MR. FELDMAN: My first question is, before I do

7 this, Your Honor, I want to be sure witnesses are excluded,

8 and I just don’t know whether they are because I haven’t

9 looked behind me.

10 THE COURT: I assume that all of the witnesses

11 have been excluded and admonished pursuant to my previous

12 order. Am I correct, counsel?

13 MR. DUSEK: Yes.

14 THE COURT: All right.

15 MR. FELDMAN: Your Honor, it’s the defense

16 position as follows, and this is what we propose to

17 demonstrate in our case in chief at preliminary hearing

18 only.

19 The issue in the case, in our view, is alibi and

20 third party access to the Van Dam residence. It’s

21 apparent, in our view, that anybody who entered that

22 residence on the evening and removed Danielle had to have

23 been familiar with the upstairs of the residence, with the

24 family, and with the dog, because the dog —

25 MR. DUSEK: This is not an offer of proof. We

26 need to know who’s going to testify to what.

27 THE COURT: That’s what we want to know.

28 MR. FELDMAN: I’m getting there.

Page 717

1 THE COURT: Well, let’s get there directly and

2 then we’ll — I want to know who’s coming in, what’s the

3 offer of proof, and what does it relate to. This isn’t an

4 opening or closing argument.

5 MR. FELDMAN: I understand. I also understand

6 that given that it’s a preliminary hearing, there are

7 substantial restrictions on our ability to present

8 evidence.

9 THE COURT: Certainly.

10 MR. FELDMAN: We intend to call detective Parga

11 to the stand to testify to certain aspects of the search of

12 Mr. Westerfield’s residence.

13 MR. DUSEK: She’s not in the country.

14 MR. FELDMAN: She’s under subpoena, I think.

15 THE COURT: We better determine that.

16 MR. FELDMAN: She is under subpoena. We have

17 her.

18 THE COURT: She’s not in the country. So we’re

19 going to have to figure out what to do about that.

20 All right. Detective Parga. And try the next one.

21 MR. FELDMAN: We intend to call Barbara Easton to

22 impeach the testimony of Brenda Van Dam, specifically with

23 regard to the fact that there was dancing at the bar, that

24 Brenda Van Dam was dancing with David Westerfield.

25 And we intend to call two or three witnesses,

26 including the bartender at Dad’s restaurant, or by way of

27 115, officer — I think his first name is frank Gerbac.

28 He, too, I believe is under subpoena to the defense. Yes,

Page 718

1 he is.

2 And we will propose to 115 the testimony of

3 Ms. — I think it’s Kemal or Kemal. She will testify —

4 THE COURT: Let’s just start first with

5 Barbara Easton. One at a time. What is your

6 representation as to what her testimony is going to be?

7 Not what —

8 MR. FELDMAN: I understand.

9 THE COURT: Not what questions you’re going to

10 ask her, but what her testimony is going to be.

11 MR. FELDMAN: Your Honor, we have a transcript

12 that was provided to us in discovery. It is pages 396

13 through 445. And I’d be happy to provide the transcript to

14 the court. Counsel gave it to us. And it basically —

15 THE COURT: Let me see it. And before we make a

16 speech, let me see it. And somehow direct me to the —

17 MR. FELDMAN: We got it highlighted.

18 THE COURT: To the highlighted portion, yes.

19 MR. FELDMAN: This is it. It’s pretty much —

20 THE COURT: All right. Let me take a look at it.

21 Well, counsel, there are a lot of highlighted

22 portions. Where is the specific reference to — that you

23 just told me about her dancing with Mr. Westerfield? What

24 page is that on?

25 MR. FELDMAN: I can’t give — you have my copy.

26 I’m sorry.

27 THE COURT: All right.

28 MR. FELDMAN: But I can tell you if you start at

Page 719

1 the top and you see the word “toasted”, that is a place we

2 want to go, because it’s impeachment of what’s previously

3 been testified to by the witness.

4 THE COURT: Now, counsel, the “toasted” that you

5 want to talk about is on page 9 only.

6 MR. FELDMAN: It might have been — I’m sorry.

7 My memory was that it was on the first page.

8 THE COURT: I didn’t say the word “toasted”

9 wasn’t on the first page. I said you just talked about it

10 on page 9.

11 MR. FELDMAN: Your Honor, I’m sorry —

12 THE COURT: Hold on a second. Let me see it.

13 All right. I don’t know how we’re going to do

14 this, but let me tell you in the few minutes that I’ve had

15 to review this — I’m going to give this document back to

16 you. Ask you to take a few minutes and refer me

17 specifically to the page where this woman says that there

18 was dancing going on between your client and

19 Mrs. Van Dam.

20 MR. FELDMAN: Your Honor, I apologize. I think I

21 called the witness wrong. We have two other witnesses.

22 THE COURT: Counsel, all I know is you gave me a

23 document, said you’ll find it in here. It isn’t. At least

24 I can’t find it.

25 MR. FELDMAN: Well, I apologize to the court.

26 I’m proposing that we have two other witnesses to the same

27 fact, and I have the reports.

28 THE COURT: Hold on a second. Let me just stop

Page 720

1 you. We were talking about why are you going to be calling

2 Barbara Easton. You told me because she would impeach

3 previous testimony and she would testify a certain way

4 about who was dancing with whom.

5 MR. FELDMAN: And — I’m sorry. And would

6 disagree with the manner in which Mrs. Van Dam described

7 the events that occurred as articulated by Mr. Van Dam.

8 And so we see her — and, you know, specifically at

9 page 9 —

10 THE COURT: Counsel, according to 866 of the

11 penal code, you have to either establish an affirmative

12 defense, negate an element of the crime, or impeach the

13 testimony of a prosecution witness.

14 I understand what you’re telling me. You’re

15 telling me that she has a different view of how toasted

16 they were. I understand that, okay? And — but I don’t

17 see anything in there that — and it was a quick reading.

18 I’ll give you that. That for the purposes of the

19 preliminary hearing that I would allow you to go into with

20 respect to impeachment. I just don’t see it.

21 Now, let’s talk about a witness, if you have one,

22 who is about to testify to what you represented Ms. Easton

23 was going to testify to. And I understand you made a

24 mistake. We all make mistakes. Next — why don’t you tell

25 me.

26 MR. FELDMAN: Your Honor, specifically discovery

27 page 732, and discovery 468, reflects the testimony of

28 Cherokee Youngs.

Page 721

1 THE COURT: Let me see it, please.

2 MR. FELDMAN: And another woman, just so that

3 Your Honor, just so the record —

4 THE COURT: Cherokee Youngs is the first one.

5 And the second one?

6 MR. FELDMAN: Patricia Le Page.

7 THE COURT: Thank you.

8 MR. FELDMAN: And you’ll see a reference to

9 Barbara Easton. Those are short reports, Your Honor.

10 THE COURT: I’ll take a look.

11 All right. Counsel, I see Cherokee Youngs.

12 MR. FELDMAN: Yes.

13 THE COURT: I see Patricia Le Page. That’s not

14 what she said. So I don’t see that Patricia Le Page or

15 Brenda Easton are particularly relevant to this hearing.

16 I understand why you want Cherokee Youngs, and I

17 would ask the district attorney why I shouldn’t allow

18 Cherokee Youngs to testify for impeachment purposes only.

19 MR. DUSEK: I believe she’s not under subpoena.

20 I don’t know if she is or not.

21 MR. FELDMAN: She’s under subpoena to us.

22 MR. DUSEK: And I do not see that the impeachment

23 area is relevant to the hearing here today.

24 THE COURT: I do.

25 MR. DUSEK: All right.

26 THE COURT: You may call Cherokee Youngs for the

27 limited purpose of impeachment testimony with respect to

28 what is stated within the paragraph, the indented

Page 722

1 paragraph.

2 MR. FELDMAN: Yes, Your Honor.

3 MR. BOYCE: Your Honor, do you have the page that

4 indicates that Barbara Easton —

5 THE COURT: I have page 732, is what I have.

6 MR. BOYCE: And in that page it should state that

7 Barbara Easton at Dad’s bar invited other people back to

8 the house —

9 THE COURT: Counsel, hold on a second. Okay? I

10 said, okay, that with respect to Cherokee Youngs, you can

11 call her to testify for impeachment purposes only with

12 regard to what is stated within the indented paragraph.

13 MR. FELDMAN: Yes.

14 THE COURT: That covers what you want.

15 All right. So right now Cherokee Youngs I’m

16 going to allow you to call for impeachment purposes.

17 All right?

18 MR. FELDMAN: Yes.

19 THE COURT: If we are doing it, let’s do it

20 now.

21 MR. FELDMAN: We don’t have her now.

22 THE COURT: No. No. I apologize. Let’s proceed

23 with this process.

24 MR. FELDMAN: Your Honor, we would next propose

25 by way of 115 to call an officer named Frank Gerbac. This

26 is discovery now, 458 et seq., which reflects an interview

27 with Denise Kemal.

28 THE COURT: Let me see it, please.

Page 723

1 MR. FELDMAN: Coming right up. I’m sorry 458

2 through 461.

3 Your Honor, I’m sorry. There’s an additional

4 page I wish to provide the court.

5 THE COURT: All right.

6 MR. FELDMAN: Actually two additional. 463 and

7 464. It’s the same witness. Just additional discovery

8 that I didn’t give you.

9 THE COURT: All right. Thank you.

10 Where specifically — oh, I have it and you

11 don’t? Is that the idea?

12 MR. FELDMAN: Yes.

13 THE COURT: I’m going to give it back to you and

14 I want you to in some manner indicate — you can come over

15 here.

16 MR. FELDMAN: Thank you.

17 THE COURT: Some manner indicate what

18 specifically you believe is impeachment. Not cumulative

19 because —

20 MR. FELDMAN: I understand.

21 THE COURT: Because some of the witnesses have —

22 MR. FELDMAN: Yes, Your Honor.

23 THE COURT: Have not testified exactly the

24 same.

25 MR. FELDMAN: Your Honor —

26 THE COURT: Yes?

27 MR. FELDMAN: I have tried to put ink circles

28 around the specific areas.

Page 724

1 THE COURT: All right. Thank you.

2 MR. FELDMAN: And just so counsel are aware, it’s

3 discovery page 459, about three-quarters of the way down

4 the page, and 461, first several lines.

5 THE COURT: Thank you.

6 Not at preliminary hearing, counsel. Number 1, I

7 don’t think it is a — it is anything new. I think it’s

8 cumulative, and I’m going to exercise my discretion under

9 352.

10 MR. FELDMAN: Very well. Next? Yes, please?

11 THE COURT: I’m ready for the next, okay?

12 MR. FELDMAN: All right. Glennie Nasland.

13 THE COURT: I apologize. How do you spell that?

14 MR. FELDMAN: I said it wrong. N-A-S-L-A-N-D.

15 Counsel, it’s 525 and 526.

16 THE COURT: All right. Let me take a look.

17 You’ve circled or highlighted or something?

18 MR. FELDMAN: Yes. I put a circle around it.

19 THE COURT: Thank you.

20 MR. FELDMAN: Your Honor, I think — I didn’t

21 give you enough. May I please provide you 527, as well?

22 THE COURT: Yes, you may.

23 This is the testimony of a police officer who’s

24 going to come in and —

25 MR. FELDMAN: No. No.

26 THE COURT: You have the actual person?

27 MR. FELDMAN: We have the witness. And I think I

28 circled the wrong spot. I’m sorry. I didn’t realize you

Page 725

1 were going to ask me to do it this specifically with regard

2 to the paper. So —

3 THE COURT: I did that as an accommodation,

4 counsel.

5 MR. FELDMAN: We have — if you have 526 up

6 there, Your Honor?

7 THE COURT: I see what you want. You wanted this

8 person to come in specifically to testify about who was

9 dancing with whom, correct?

10 MR. FELDMAN: Correct. And —

11 THE COURT: And what other?

12 MR. FELDMAN: And intoxication as an affirmative

13 defense, our client’s intoxication, and potentially as an

14 alibi.

15 THE COURT: No. She can come in and she can

16 testify with respect to who was dancing with whom, and

17 that’s all. I’m using my discretion under 352. We’re not

18 going to turn this into a mini-trial.

19 I apologize. How do you spell that last name?

20 MR. FELDMAN: N-A-S-L-A-N-D.

21 THE COURT: Thank you.

22 MR. FELDMAN: Your Honor —

23 THE COURT: I’m listening.

24 MR. FELDMAN: We propose to cause Sandra Andrade

25 to testify there were between 34 and 76 sex registrants

26 within a very short area around the residence of the

27 Van Dams to show access and third party culpability.

28 THE COURT: Counsel?

Page 726

1 MR. DUSEK: Third party culpability is not an

2 affirmative defense. An affirmative defense is I did it,

3 but this is the reason for. The fact there are

4 290 registrants anywhere is of no relevance and certainly

5 does not lead to third party culpability.

6 THE COURT: Sustained.

7 MR. FELDMAN: Your Honor, just —

8 THE COURT: Sustained. I don’t —

9 MR. FELDMAN: People versus Hall.

10 THE COURT: You’re telling me there is a case

11 that specifically says that in this type of a case that the

12 issue of how many sex registrants — 290 registrants are in

13 the area is relevant?

14 MR. FELDMAN: No. I’m saying that counsel

15 misspoke when he claimed that an affirmative defense was

16 limited to that which he articulated. And I was citing

17 people versus Hall for the proposition that third party

18 culpability is an affirmative defense. That’s all.

19 THE COURT: I’m going to allow you third party

20 culpability. That’s not the reason I sustained the

21 objection.

22 MR. FELDMAN: I understand that.

23 THE COURT: I sustained the objection because

24 I think the number of registrants, 290 registrants in the

25 area is irrelevant.

26

27 (Discussion off record.)

28 /////

Page 727

1 MR. FELDMAN: Your Honor, we’re discussing —

2 there’s two witnesses that we’ve talked to counsel about.

3 And Sergeant Holmes is being very gracious indicating he

4 will try and accommodate us, because we don’t have two of

5 the officers under subpoena. I will provide you with the

6 discovery. This relates to Dylen and Derrick Van Dam.

7 I don’t want to call them, Your Honor. They’re

8 children. If you decide it’s relevant, I want to do them

9 115.

10 THE COURT: I’m sure that if I decide it’s

11 relevant, that we can do it a way, in a fashion so we don’t

12 have to call the children. I didn’t say it was relevant.

13 I said if.

14 MR. FELDMAN: Your Honor —

15 THE COURT: Let me see what you have, please.

16 MR. FELDMAN: Just for the record, 605,

17 discovery, and 606.

18 THE COURT: Okay.

19 MR. FELDMAN: And, again, I’ve got it

20 highlighted. And also — I guess 602 and 604, on top of

21 that.

22 THE COURT: All right. Let me see it.

23 Counsel, with respect to the interview of

24 Derrick, I see one sentence.

25 MR. FELDMAN: Yes.

26 THE COURT: That sentence, counsel, is on

27 page 603. I don’t know what Mr. Dusek is looking at, but

28 it starts, “when asked if his sister.” Do you see that?

Page 728

1 About the middle of the page. In fact, it’s right next to

2 the middle hole. I don’t know if your holes — do you see

3 that?

4 MR. DUSEK: Yes.

5 THE COURT: That’s the only sentence in this

6 three-page document, counsel.

7 MR. FELDMAN: Yes.

8 MR. DUSEK: That’s admitted right now. We’ll

9 stipulate that’s what he’d say.

10 MR. FELDMAN: Then I propose to accept the

11 stipulation, but I’d like to be able to state, if you’ll

12 agree —

13 THE COURT: Hold on. You’re reading my mind, as

14 I’ve tried to read your minds throughout this. We may be

15 able to work out these stipulations with these other

16 people. I don’t know. Let me take a look at the other

17 child. And this is Dylen?

18 MR. BOYCE: He says the same thing, Your Honor.

19 THE COURT: Okay. This is the 5-year-old?

20 MR. BOYCE: Yes.

21 THE COURT: All right. He says the same thing.

22 They’re correct. So do you want to come to side bar and

23 see if we can propose a stipulation and then come out and

24 try to do it?

25 MR. FELDMAN: I’d be happy to.

26 THE COURT: Take care of this?

27 MR. FELDMAN: Yes, Your Honor.

28 THE COURT: Is that all right with counsel?

Page 729

1 MR. DUSEK: Sure.

2 THE COURT: Let’s do this quickly. It’s not

3 difficult. I don’t need the reporter.

4 MR. DUSEK: Perhaps the reporter should be there.

5 THE COURT: We’re not going to discuss the case.

6 Do you want me to get a waiver?

7 MR. DUSEK: We should, I think.

8 THE COURT: Come on over.

9

10 (The following proceedings were held at side bar.)

11

12 THE COURT: Don’t report anything unless I get

13 involved, okay?

14 Don’t walk back. It’s my suggestion that you

15 might be able to arrive at a stipulation as to the limited

16 testimony that these other two witnesses were going to

17 testify to with respect to the dancing.

18 MR. FELDMAN: Yes.

19 THE COURT: Please talk.

20 MR. FELDMAN: If Your Honor has the papers, can I

21 have them back, please? Maybe we got them back.

22 THE COURT: I don’t have them. I gave them

23 back.

24 MR. FELDMAN: Okay.

25 MR. BOYCE: Your Honor, can we go back on the

26 record? Do you want us in front or over here?

27 THE COURT: Are we done with being over there?

28 I’m leaving it to you. Is there a chance of putting

Page 730

1 together a stipulation with respect to the other witnesses?

2 MR. FELDMAN: No.

3 MR. BOYCE: Not the other witness.

4 THE COURT: That’s fine. Go back over there.

5

6 (Open court.)

7

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

9 I’m advised that there will be a stipulation with

10 respect to the two children. We’re going to have that

11 posed in a minute. On that limited area about the gate.

12 I understand there cannot or there will not be a

13 stipulation with respect to Ms. Youngs, and that

14 Ms. Youngs’ testimony — although I want once again to

15 caution it’s going to be extremely limited. You know what

16 my goal was today. All right.

17 What else do we have? And I don’t even know —

18 I’m not casting any aspersions. What else do we have?

19 MR. FELDMAN: Your honor, with regard to

20 detective Parga —

21 THE COURT: Well, hold on. I know about

22 detective Parga. You know how I operate. I try to get as

23 much as I can get. And I want to know whether or not

24 there’s anybody other than detective Parga.

25 MR. FELDMAN: If the court will recall, that an

26 objection on scope was sustained when I was trying to ask

27 Ms. Savage certain questions concerning her behaviors at

28 Mr. Westerfield’s residence. So Ms. Savage would be

Page 731

1 another one of the witnesses we would ask leave to call

2 because then argument was made that my cross-examination

3 exceeded the scope of the direct. This would be an

4 affirmative defense relating to transference of evidence.

5 THE COURT: Counsel?

6 MR. DUSEK: We turn — it is a discovery

7 question. He simply wants to discover the case. He has

8 the reports that indicate what was found where and when it

9 was found.

10 THE COURT: What specifically is she going to

11 testify to? That’s what you need to do under 866.

12 MR. FELDMAN: She’s going to testify she went

13 from the crime scene at Mountain View and walked to

14 the — to Mr. Westerfield’s house and walked through

15 Mr. Westerfield’s house without having changed her shoes.

16 Tracking in or contaminating evidence. That does relate to

17 what weight the court gives to the prosecution’s physical

18 evidence that’s been produced at this hearing.

19 MR. DUSEK: Well, no evidence has been produced

20 at this hearing as to any hair, fiber, blood, fingerprint

21 evidence coming from Mr. Westerfield’s house.

22 THE COURT: I didn’t remember any.

23 MR. FELDMAN: The inference — I’m sorry. The

24 inference on the jacket is that it came — I mean that’s

25 how I understood the testimony, and those are inferences

26 that I was drawing on their direct testimony concerning

27 Mr. Westerfield’s jacket which they’ve alleged had blood on

28 it.

Page 732

1 THE COURT: I think Mr. Dusek’s recollection of

2 the testimony is correct. I don’t find that such testimony

3 falls within 866 of the penal code. So that’s denied.

4 MR. FELDMAN: There’s one other issue,

5 Your Honor, and that is this: The court is aware that the

6 lawyers have been moving as quickly as possible. At least

7 the defense team has. Late yesterday I received a call

8 after court — no. We didn’t have court yesterday. At

9 some point yesterday I received a phone call. I can’t

10 recall whether it was from the district attorney’s office

11 or from a photo company. But I’m told that there’s I don’t

12 know how many hundreds of photographs that we have yet to

13 see of the crime scene that will be available to the

14 defense at some point tomorrow morning.

15 Yesterday we called. We have a runner who’s in

16 position to pick them up as soon as they’re ready. But I

17 think — my request would be, it’s not unreasonable to say

18 we want six or eight hours tomorrow morning to pick up

19 evidence that in our view could have been produced earlier

20 and has not.

21 THE COURT: What about detective Parga?

22 MR. FELDMAN: With regard to —

23 THE COURT: And I have not responded to your last

24 statement, nor have I asked the D.A. for his position. I

25 just want to do things my way. And I don’t mean that in a

26 dictatorial manner.

27 MR. FELDMAN: Whatever the court wants.

28 THE COURT: That’s what I want. I want to talk

Page 733

1 about detective Parga.

2 MR. FELDMAN: We can, if you’ll give us a second

3 with Mr. Dusek, maybe stipulate away detective Parga’s

4 testimony.

5 THE COURT: That would be good. Talk.

6

7 (Discussion off record.)

8

9 THE COURT: Just so you all know, 4:30 is not

10 magic.

11 MR. FELDMAN: I wasn’t thinking it was.

12 THE COURT: Just in case anybody was thinking

13 that.

14

15 (Discussion off record.)

16

17 MR. FELDMAN: Counsel are having a discussion.

18 I think we might want a ruling, if it’s not unreasonable to

19 request an indicated on relevance, to see whether or not we

20 need to stipulate.

21 THE COURT: Well, that’s fair. It wouldn’t be

22 indicated. It would be a ruling.

23 MR. FELDMAN: Okay. So counsel’s given me his

24 919, and I’m asking to please give it to you.

25 THE COURT: All right. Do you have something

26 circled?

27 MR. FELDMAN: Yes. It’s — I’m sorry. It’s the

28 paragraph that starts in yellow.

Page 734

1 THE COURT: This is all you want? Oh, you want

2 the whole paragraph?

3 MR. FELDMAN: No. We don’t want the whole

4 paragraph.

5 THE COURT: Just the one sentence?

6 MR. FELDMAN: Yes. Our view is the remainder is

7 cumulative.

8 THE COURT: I understand.

9 MR. FELDMAN: They want the whole paragraph.

10 THE COURT: Now I understand what the dispute is.

11 Okay.

12 MR. FELDMAN: Yes.

13 THE COURT: Okay. Counsel, this is offered for

14 what purpose? Which one of the three purposes? Which one

15 of the —

16 MR. BOYCE: The first sentence is relevant to

17 impeach the witness.

18 THE COURT: I understand.

19 MR. FELDMAN: That’s all we want.

20 THE COURT: And the second few sentences is

21 consistent with what the witness had testified to before,

22 am I correct?

23 MR. DUSEK: I believe all of them are

24 consistent.

25 MR. FELDMAN: But our position is it’s cumulative

26 after the first sentence, and we’re not offering it.

27 THE COURT: Well, I appreciate that, but I’ve

28 been fairly liberal in my cumulative rulings. If it comes

Page 735

1 in, I’ll find that it’s relevant. If it comes in, the

2 whole paragraph comes in. Do you want it in or not?

3 MR. FELDMAN: Yes.

4 THE COURT: Now, let me see if I understand what

5 issues I have left. I have your request with respect to

6 the giving you the opportunity to review the crime scene

7 evidence that’s coming in sometime tomorrow. Am I correct?

8 MR. FELDMAN: That’s correct, Your Honor.

9 THE COURT: Do I have anything else? Knowing

10 that I still have two witnesses who I’ve ruled are

11 relevant.

12 MR. FELDMAN: At this point, again, it’s been —

13 THE COURT: Yes —

14 MR. FELDMAN: I can only tell you our habit and

15 custom is to go back and analyze the evidence and make

16 tactical decisions every night constantly.

17 THE COURT: I understand. You know what I don’t

18 want to see. I don’t want 15 more witnesses or 3 more

19 witnesses tomorrow morning.

20 MR. FELDMAN: I’m getting that from counsel, too.

21 THE COURT: I’m sorry?

22 MR. FELDMAN: I was getting that from counsel to

23 my left, as well, Your Honor.

24 THE COURT: Well, I would do the same thing with

25 him. Now —

26 MR. FELDMAN: But I’m really not sure, frankly,

27 what Your Honor just — you’re indicating you don’t want

28 surprise witnesses? Of course. I understand that.

Page 736

1 THE COURT: Right. I’m asking you now to tell me

2 whether there are any other witnesses based upon what you

3 have now. Not based upon some more crime scene evidence

4 that you’re going to receive, that you wish to put on for

5 any purpose under 866.

6 MR. FELDMAN: No.

7 THE COURT: My understanding is the answer is

8 no.

9 MR. FELDMAN: Correct. Except that which we’ve

10 told you about.

11 THE COURT: The two witnesses.

12 MR. FELDMAN: Well, all of our offers, yes.

13 THE COURT: But there are two witnesses that I’ve

14 ruled are relevant.

15 MR. FELDMAN: Yes.

16 THE COURT: And that can come in.

17 MR. FELDMAN: Yes, Your Honor.

18 THE COURT: And they’re going to testify about

19 who was dancing with whom.

20 MR. FELDMAN: Yes, Your Honor.

21 THE COURT: I want to see counsel at side bar,

22 and I want the court reporter.

23 MR. FELDMAN: Your Honor, could I just have one

24 moment, please, with my client?

25 THE COURT: Yes.

26

27 (Discussion off record.)

28 /////

Page 737

1 THE COURT: Are we ready?

2 MR. FELDMAN: Yes. Thank you, Your Honor.

3 THE COURT: Please.

4

5 (The following proceedings were held at side bar.)

6

7 THE COURT: As I see it, with the exception of

8 defense counsel’s request for more time to review the

9 documents, which I’ll listen to, this preliminary hearing

10 is over, with the exception of argument, except for

11 two witnesses that I’ve ruled are relevant.

12 As I recall the reports, the reports indicate

13 that they both said that Mr. Westerfield was dancing with

14 Mrs. Van Dam. Are you telling me that you are unable to

15 enter into that stipulation for the purposes of the

16 preliminary hearing?

17 MR. DUSEK: I’m saying if we — at this point I

18 am, yes.

19 THE COURT: That means we have to come back

20 tomorrow for two witnesses?

21 MR. DUSEK: No. If the case would end today and

22 the defense says rest, we would stipulate to it. But if

23 we’re coming back tomorrow —

24 THE COURT: Well, I don’t know we’re coming back

25 tomorrow. I have to hear argument with respect to what I’m

26 going to allow him to do, whether I’m going to give him

27 time to review all these other documents. That’s the only

28 thing. That’s why I was very careful as to how I proceeded

Page 738

1 today to get to that point, okay? And I don’t do it out of

2 any rush or anything else. You know me better than that.

3 But I do have a sense of timing and a sense of what’s

4 appropriate.

5 MR. DUSEK: I have every confidence in the

6 court.

7 THE COURT: Right. And I may rule against you.

8 I may say — I’m not playing games. You know that. I may

9 say he’s right, I’m going to give him more time. I may say

10 he’s wrong. But I’d like to take care of these witnesses.

11 We apparently know what they’re going to say, and there’s

12 not much —

13 MR. FELDMAN: It’s only —

14 THE COURT: It’s a couple of sentences.

15 MR. DUSEK: I’m going to finish this up today.

16 And if we can do it today, we can enter into the

17 stipulation.

18 THE COURT: I can’t commit to you. I just have

19 to tell you I have to rule the way I have to rule, okay?

20 MR. DUSEK: Uh-huh.

21 THE COURT: I’m not committing to you.

22 MR. FELDMAN: Of course. I understand.

23 THE COURT: Not tip my hand. I’m just saying can

24 we do that.

25 MR. DUSEK: For the purposes of

26 preliminary hearing only —

27 MR. FELDMAN: Yes.

28 THE COURT: Yes.

Page 739

1 MR. DUSEK: The officers will testify in

2 accordance to what’s in the reports.

3 THE COURT: Correct.

4 MR. FELDMAN: Yes.

5 MR. DUSEK: I can do that.

6 THE COURT: All right. Thank you.

7 MR. FELDMAN: Excuse me, judge. So just so that

8 we all agree, I just want, before we go out on the record

9 and step on it, that’s all, we’re agreeing that Bob can

10 read — that for the limit purpose of preliminary hearing,

11 if so and so was called as a witness, he would testify to

12 what the judge has limited us to, the one sentence, that so

13 and so was dancing —

14 MR. CLARKE: The officer —

15 MR. FELDMAN: That’s fine.

16 MR. CLARKE: Would be called —

17 MR. FELDMAN: The officer would be called to

18 testify that he interviewed the witness, and that the

19 witness said — that’s fine. That’s as to the two, right?

20 THE COURT: That’s the two women.

21 MR. FELDMAN: Right. I thought there was a

22 third.

23 THE COURT: Two — well, and the two kids.

24 MR. FELDMAN: The kids. That would be it.

25 THE COURT: And the officer would testify that

26 if — he talked to the two children, and they both said

27 that Danielle got in trouble for opening the gate, she was

28 able to open the gate.

Page 740

1 MR. BOYCE: Are we stipulating to what the kids

2 would testify or the —

3 MR. BOYCE: The officer.

4 MR. BOYCE: All right. All right.

5 THE COURT: So we have the officer with the

6 two witnesses about dancing, and the officer with the

7 two children. Yes?

8 MR. DUSEK: Yes.

9 THE COURT: Thank you.

10 MR. FELDMAN: Thank you.

11

12 (Open court.)

13

14 THE COURT: It’s not only attorneys that can be

15 persuasive. I’m pleased to announce that we’re going to

16 have some stipulations. Go ahead.

17 MR. BOYCE: Your Honor, we have reached a

18 stipulation as to the testimony of officer Bojorquez.

19 That’s spelled B-O-J-O-R-Q-U-E-Z. If he was called to

20 testify, he would testify that on February 2nd, 2002, he

21 interviewed Dylen Van Dam. And the officer asked him if

22 his sister had ever walked away from the house and opened

23 the gate in the back yard. He said yes, his sister can

24 climb up and open the gate. She has gotten in trouble

25 before. He said she and my brother got in trouble with my

26 mom for opening the gate and going out front.

27 The same officer would testify —

28 THE COURT: Hold on. These are stipulations for

Page 741

1 the purpose of preliminary hearing only. Am I correct?

2 MR. BOYCE: That’s correct.

3 THE COURT: Correct, counsel?

4 MR. DUSEK: Yes.

5 THE COURT: So stipulated with respect to the

6 first recitation?

7 MR. DUSEK: Yes.

8 THE COURT: Next?

9 MR. BOYCE: The officer would also testify that

10 he, on February 2, 2002, he interviewed Derrick Van Dam,

11 and that Derrick Van Dam when asked if his sister knows how

12 to open the gate, he said yes, she does. He said one time

13 she got in trouble for climbing on the gate and opening it

14 and going out front.

15 THE COURT: So stipulated for the same purposes?

16 MR. DUSEK: Yes.

17 THE COURT: Thank you. Two more.

18 MR. BOYCE: We have a stipulation that if

19 detective Parga, if called to testify, would testify

20 that on February 3, 2002, he checked —

21 MR. DUSEK: She.

22 MR. BOYCE: She, on February 3, 2002, she checked

23 11995 Mountain Pass road at 11:45 hours. “Dave Westerfield

24 was not home. I looked into the window of Westerfield’s

25 house and noticed it was very clean and neat. I noticed

26 the front yard hose was lying on the grass in a disarray.”

27 I assume she means in a disarray. “This indicated to me he

28 was in a hurry to leave after using the hose. It was

Page 742

1 completely unrolled and then doubled back onto the grass

2 yard.”

3 THE COURT: So stipulated?

4 MR. DUSEK: Yes.

5 THE COURT: Okay. There’s two more.

6 MR. BOYCE: Two?

7 THE COURT: Have I missed something?

8 MR. BOYCE: Your Honor, I don’t believe the

9 district attorney will stipulate to the testimony of —

10 THE COURT: Did I misunderstand what happened at

11 side bar?

12 MR. DUSEK: No, you didn’t.

13 THE COURT: You are willing to testify —

14 MR. DUSEK: Yes.

15 THE COURT: To stipulate, correct?

16 MR. DUSEK: Yes. For the purpose of

17 preliminary hearing only.

18 THE COURT: Correct.

19 MR. FELDMAN: Yes.

20 THE COURT: This is very limited area.

21 MR. FELDMAN: Your Honor, that would be —

22 THE COURT: About dancing.

23 MR. FELDMAN: Yes.

24 MR. BOYCE: We also have a stipulation that if

25 Glennie Nasland, that’s N-A-S-L-A-N-D, were called to

26 testify —

27 THE COURT: Want to spell the first name, too,

28 please?

Page 743

1 MR. BOYCE: G-L-E-N-N-I-E. Would testify that

2 she was at Dad’s cafe on February — on the evening of

3 February 1st, and that Westerfield danced with — that

4 Brenda danced alone with Westerfield.

5 THE COURT: So stipulated for the limited

6 purposes of the preliminary hearing?

7 MR. DUSEK: May I see that for a moment?

8 THE COURT: Certainly.

9 MR. DUSEK: For the purpose of the

10 preliminary hearing only, Your Honor.

11 THE COURT: Thank you. All these stipulations

12 have been received for that purpose.

13 There’s another one, Cherokee Youngs.

14 MR. BOYCE: We have a stipulation, Your Honor,

15 that Cherokee Youngs, Y-O-U-N-G-S, first name

16 C-H-E-R-O-K-E-E, if called to testify, would testify that

17 on February 1st at Dad’s bar she saw Brenda dancing with

18 Dave Westerfield.

19 THE COURT: So stipulated for the same purposes?

20 MR. DUSEK: Yes.

21 THE COURT: Stipulation is received.

22 It’s my understanding that with the exception of

23 a discussion that we need to have about the anticipated

24 receipt of crime scene evidence, discovery, tomorrow, that

25 we are finished and terminated with this

26 preliminary hearing, but for argument. Am I correct?

27 MR. DUSEK: Yes.

28 MR. FELDMAN: But for the motion that I made,

Page 744

1 yes, Your Honor.

2 THE COURT: Yes.

3 MR. FELDMAN: If you’re asking do we have further

4 witnesses, the answer is no, with the exception of what we

5 don’t know about yet.

6 THE COURT: I understand. I’ll now listen to you

7 about what you want me to do and why.

8 MR. FELDMAN: The purpose of the

9 preliminary hearing is to weed out groundless charges. And

10 I recognize that the standard of proof is extraordinarily

11 slight. However, it does statutorily and as a matter of

12 constitutional right, provide and permit that a potentially

13 capital accused defendant be at least given the opportunity

14 to review the photographs that law enforcement has already

15 taken and which are at least on order and should be

16 available to us in — maybe at the — certainly less than

17 24 hours.

18 All I’m asking the court is to permit us the

19 opportunity to review evidence which has been communicated

20 to us and provided to us, I believe in due course, to

21 review the evidence so that we can make an informed

22 decision as to whether or not we believe it’s relevant and

23 appropriate for us under the 6th amendment to advance

24 further affirmative defense testimony.

25 THE COURT: What is it that you expect to

26 receive?

27 MR. FELDMAN: I expect to receive hundreds of

28 photographs. All I’ve been told is the price, judge. I

Page 745

1 don’t even know how many hundreds. But I think

2 law enforcement — one of the gentleman at counsel table I

3 thought told me, and I could be wrong, I don’t rely on my

4 memory too greatly, that there might be several hundred

5 photographs.

6 THE COURT: Of?

7 MR. FELDMAN: Of every scene that’s been

8 testified to. That would include but not be limited to,

9 Your Honor, the scene at which the body was found,

10 Mr. Westerfield’s residence, Mr. Westerfield’s motorhome,

11 Mr. Westerfield 4-by-4 motorhome, and the Van Dam

12 residence. And I may be forgetting if there’s more, but

13 at least that.

14 THE COURT: Thank you.

15 Counsel?

16 MR. DUSEK: I believe the photographs have been

17 available for pickup for one or two days. Defense counsel

18 answered ready when the preliminary hearing was scheduled.

19 We certainly were not in a rush to judgment. He appears to

20 be. The photographs already have been provided to him

21 before this. This is not the first set of photographs.

22 The current set of photographs that I believe have already

23 been provided show the Van Dam home and the Westerfield

24 home. Perhaps not the recovery site. Those were the

25 latest ones that were done. These are probably

26 duplications or additional photographs from the other sites

27 that we have.

28 MR. FELDMAN: Judge, if somebody let my office

Page 746

1 know that in the past 48 hours there were photographs

2 available, you can bet that I would have had them this

3 instant and we would have been ready to proceed. There

4 hasn’t been a single communication to my office that I’m

5 aware of that indicated to us that there was additional

6 discovery made. Because every single time this whole week,

7 and for that matter ever since the case arose, that I’ve

8 received any kind of phone call from Mr. Clarke or any

9 representative of the D.A.’s office, I have immediately

10 gone over. I know the names of the clerks by now, I’ve

11 been over so many times, because any time discovery has

12 been made available, I’ve been there to get it right now.

13 This is not an unreasonable request. I’m very

14 surprised to hear that photographs existed, since this is

15 the first time I’ve known of it. It’s true we received

16 perhaps a dozen or so of the digital crime — of the

17 digital photographs that were taken at the recovery scene.

18 It’s true that we received xeroxed copies and some

19 photographs that were taken from the autopsy. But not

20 scene photos, Your Honor.

21 THE COURT: Thank you very much.

22 You’re certainly entitled to all of those

23 photographs and to examine those photographs. There’s no

24 question about that. I think that’s part of the discovery

25 process.

26 The purpose of the preliminary hearing, as you

27 pointed out, was to weed out groundless charges. And I

28 can’t imagine that the photographs could contain sufficient

Page 747

1 evidence for me to decide that these charges are totally

2 groundless.

3 So I’m going to exercise my discretion not to

4 grant the continuance, and this is the end of the

5 preliminary hearing.

6 All right. Do you wish to argue, counsel, or

7 what?

8 MR. DUSEK: There are some defense exhibits, too,

9 I believe.

10 THE COURT: Yes.

11 MR. CLARKE: Yes.

12 THE COURT: Thank you for pointing that out,

13 telling me. But then again, he was thinking about

14 something else. Yes.

15 MR. CLARKE: Yes, Your Honor. The court may

16 recall the court released to our custody defense exhibits F

17 through J yesterday, that were I believe exclusively

18 notes —

19 THE COURT: Correct.

20 MR. CLARKE: — and reports of various San Diego

21 Police Department experts. I yesterday, actually night

22 before last, had those copied, provided a copy of them to

23 counsel, and also would seek the court’s permission to

24 substitute one set of those copies for the original notes

25 that the police department needs because they are actively

26 testing material in this case.

27 THE COURT: You don’t have any objection to that,

28 do you?

Page 748

1 MR. FELDMAN: No, Your Honor.

2 THE COURT: Is it necessary that I actually

3 receive in evidence those notes? I thought we really

4 marked them for housekeeping purposes.

5 MR. FELDMAN: Essentially for housekeeping

6 purposes, but at least this way now the court has a

7 complete set of the notes.

8 THE COURT: But you’re not offering them in

9 evidence? I should just keep them?

10 MR. FELDMAN: Not at this time. Yes.

11 THE COURT: All right.

12 MR. CLARKE: I’ve provided that full copy of

13 those to the clerk.

14 THE COURT: Mr. Clarke reminded me that there

15 were others, thank you, other defense exhibits which

16 defense didn’t mention. So before I assume you don’t wish

17 me to receive them, I should ask you. Maybe you have

18 something else to say. I’m certainly willing to listen.

19 MR. CLARKE: Yes. Back to those notes. First of

20 all, I may have mistaken the court. They are not a

21 complete set of notes because they’re actively being worked

22 on back at the laboratory, as well.

23 THE COURT: I understand.

24 MR. CLARKE: But did I, in fact, get the court’s

25 permission that the originals can be released?

26 THE COURT: Yes. Counsel had no objection. You

27 have my permission.

28 MR. CLARKE: Thank you.

Page 749

1 (Discussion off record.)

2

3 MR. FELDMAN: May I ask where are the defense

4 exhibits? Thank you.

5 Your Honor —

6 THE COURT: Do you want to go off the record

7 while you discuss this with counsel? We’re off the record.

8 And that means that the media is not to report.

9

10 (Discussion off record.)

11

12 MR. FELDMAN: Could we go back on the record?

13 THE COURT: Yes. But now you have what you’ve

14 accused me of having the whole time, all of the papers.

15 MR. FELDMAN: I could share.

16 THE COURT: What do you want to say, counsel?

17 MR. FELDMAN: Your Honor, with regard to

18 defendant’s exhibit A —

19 THE COURT: I know what A is.

20 MR. FELDMAN: Okay. We’ll submit it but ask that

21 they be sealed. I don’t want to offer them into evidence,

22 but I do want them to be sealed.

23 THE COURT: Fine.

24 MR. FELDMAN: I don’t think counsel has an

25 objection to the sealing. I apologize, counsel. I didn’t

26 speak directly —

27 MR. DUSEK: They should be sealed.

28 THE COURT: Okay. A is sealed, not offered.

Page 750

1 MR. FELDMAN: Thank you.

2 THE COURT: And they’re sealed, once again,

3 pursuant to 1417.8 of the penal code.

4 MR. FELDMAN: Thank you, Your Honor.

5 As to B, C, D and E, just ask that they be

6 marked. We’re not moving —

7 THE COURT: You’re not offering them.

8 MR. FELDMAN: Correct.

9 THE COURT: Okay.

10 MR. FELDMAN: With regard to all of the remaining

11 exhibits, Your Honor, I just ask to have them marked.

12 We’re not moving them.

13 THE COURT: Any objection?

14 MR. CLARKE: No, Your Honor.

15 THE COURT: Okay. That’s fine. They’re all

16 marked. We have them all. A will be sealed. The rest

17 have not been offered.

18 And as I understand it, with the exception of

19 argument, we have nothing else in the

20 preliminary hearing.

21 MR. DUSEK: People would waive and reserve the

22 right to respond.

23 THE COURT: Counsel?

24 MR. FELDMAN: Submitted.

25 THE COURT: I think everyone knows what the

26 burden of proof is in a preliminary hearing, and it appears

27 to this court and to me that the crimes alleged in the

28 complaint have been committed. There’s no question about

Page 751

1 that.

2 I have reasonable cause to believe that

3 Mr. Westerfield is guilty of them. He will be held to

4 answer.

5 And the arraignment will be held on March 28th at

6 2:00 P.M. in department 11.

7 Nothing further to do?

8 MR. DUSEK: The allegation also, Your Honor.

9 THE COURT: All of the allegations, yes.

10 MR. DUSEK: Thank you.

11 MR. FELDMAN: Your Honor, I’m sorry. March 28th

12 at 2:00 P.M.?

13 THE COURT: That’s correct. In department 11.

14 That’s within the statutory time.

15 MR. FELDMAN: Thank you.

16 THE COURT: Thank you for your professionalism,

17 and we’re adjourned.

18 MR. CLARKE: Thank you, Your Honor.

19

20 (The above proceedings were concluded.)

21 ***

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26

27

28