08072 – July 8th 2002 – Transcript of David Westerfield Trial Day 17 – morning 2

TRIAL DAY 17 – PART 2 morning 2
SAN DIEGO, CALIFORNIA, MONDAY, JULY 8, 2002 (morning 2)


WITNESSES:
Patricia A. Le Page (testified about the night of Feb 1st at Dad’s cafe, Brenda Van Dam pursuing her daughter, Cherokee Young, Westerfield dancing with Brenda Van Dam – Cross-examination)
Ryan David Tyrol (testified about the night of Feb 1st at Dad’s cafe, Brenda Van Dam and Barbara Easton asked him to come to Brenda’s house)
Duane Blake (testified about nights Janv 25th and Feb 1st at Dad’s cafe, said Denise and Barbara were looking for a man, saw Westerfield dancing with Brenda Van Dam)


1 THE COURT: WELCOME BACK, LADIES AND GENTLEMEN.

2 ALL RIGHT. MR. DUSEK.

3 MR. DUSEK: THANK YOU, YOUR HONOR.

4 Q.: MS. LE PAGE, THE ENTIRE TIME THAT YOU WERE AT DAD’S

5 CAN YOU ESTIMATE FOR US HOW LONG YOU WERE IN THE BAR AREA WHERE

6 THE DANCING WAS GOING ON?

7 A.: ARE YOU REFERRING TO FEBRUARY 1ST?

8 Q.: YES.

9 A.: HOW LONG I WAS IN THERE? OFF AND ON I’D SAY A

10 TOTAL OF PERHAPS 15 MINUTES.

11 Q.: I THINK BEFORE THE BREAK YOU TOLD US THAT YOU

12 RECALL BEING AT DAD’S TWICE THIS YEAR, ONCE ON THE DATE THAT

13 WE’RE TALKING ABOUT —

14 A.: YES.

15 Q.: AND AN OCCASION IN JANUARY?

16 A.: UM-HMM. I DON’T KNOW THE EXACT DATE IN JANUARY.

17 Q.: AND THAT’S A YES?

18 A.: YES.

19 Q.: YOU CAN’T GO UH-HUH AND HUH-UH BECAUSE THE REPORTER

20 CAN’T GET THAT DOWN.

21 A.: I’M SORRY. EXCUSE ME.

22 Q.: DO YOU RECALL WHERE YOU WERE WHEN LAW ENFORCEMENT

23 FIRST CONTACTED YOU FOR A STATEMENT?

24 A.: I WAS AT DAD’S ON THE 8TH.

25 Q.: SO THAT’S A THIRD TIME YOU WERE AT DAD’S?

26 A.: THAT’S A THIRD TIME.

27 Q.: WHAT WERE YOU DOING AT DAD’S THE THIRD TIME?

28 A.: HANGING OUT.

7340

1 Q.: ABOUT WHAT TIME OF NIGHT WAS IT?

2 A.: OH, MAYBE 10:00-ISH.

3 Q.: WERE YOU DRINKING THAT NIGHT ALSO?

4 A.: UM-HMM. YES, SIR.

5 Q.: WHAT?

6 A.: PARDON?

7 Q.: WHAT?

8 A.: WINE.

9 Q.: HOW LONG HAD YOU BEEN THERE THAT EVENING?

10 A.: OH, COUPLE OF HOURS PERHAPS.

11 Q.: AND IT WAS AFTER YOU HAD BEEN THERE A COUPLE OF

12 HOURS AND DRINKING WINE THAT THE OFFICERS SPOKE WITH YOU?

13 A.: YES.

14 Q.: DURING THE BREAK HERE IT LOOKS LIKE YOUR BACK KIND

15 OF TWINGED UP A LITTLE BIT.

16 A.: UM-HMM.

17 Q.: IS THAT A YES?

18 A.: YES, SIR. SORRY.

19 Q.: DO YOU TAKE ANY MEDICATION FOR YOUR BACK?

20 A.: YES, I DO.

21 Q.: WHAT TYPES?

22 A.: I TAKE VICODINE YES, BUT I DO NOT TAKE IT IF I’M

23 GOING TO HAVE WINE, AND I DO NOT TAKE IT IF I HAVE TO DRIVE.

24 THAT’S WHY I’M IN THE PAIN THAT I’M IN —

25 Q.: OKAY.

26 A.: — RIGHT NOW.

27 Q.: DID YOU TAKE SOME TODAY?

28 A.: NO.

7341

1 Q.: ALL RIGHT.

2 HOW MUCH TIME WOULD YOU SAY YOU SPENT AROUND MR.

3 WESTERFIELD THAT EVENING?

4 A.: I DIDN’T SPEND ANY TIME AROUND MR. WESTERFIELD.

5 Q.: DID YOU SEE HIM ACT AROUND THE BAR, THOUGH? YOU

6 SAW HIM AT THE BAR?

7 A.: I DIDN’T SEE HIM AT THE BAR. I SAW HIM IN THE BAR

8 AREA. I DON’T BELIEVE HE WAS SITTING AT THE BAR.

9 Q.: I’M SORRY. WHEN I SAID — WHEN I SAID “BAR” I

10 MEANT THE FACILITY ITSELF.

11 A.: OKAY, YES. THAT’S A YES.

12 Q.: DID YOU EVER SEE ANY DRINKS IN HIS HAND?

13 A.: I DON’T RECALL.

14 Q.: HIS STATE OF SOBRIETY, WAS HE DRUNK?

15 A.: NOT TO MY — NOT IN MY OPINION.

16 Q.: WHY DO YOU SAY THAT?

17 A.: WELL, HE WASN’T WEAVING. HE WASN’T SLURRING. HE

18 WASN’T OFF KILTER OR ANYTHING. HE WAS IN A PLEASANT MOOD. IT

19 STRUCK ME — I DID NOT TALK WITH MR. WESTERFIELD BUT IT STRUCK

20 ME AS THOUGH HE WERE IN A VERY PLEASANT MOOD AND FEELING VERY

21 NICE.

22 Q.: AND YOU COULD SEE NO SIGNS AT ALL THAT PERHAPS HIS

23 MOOD WAS AFFECTED BY ALCOHOL?

24 A.: I CANNOT ANSWER THAT BECAUSE I DON’T KNOW.

25 Q.: BUT HE WAS CERTAINLY ABLE TO CONTROL HIMSELF AND

26 WHAT HE WAS DOING?

27 A.: ABSOLUTELY, YES, SIR.

28 Q.: YOU TALK ABOUT ONE OF THE GIRLFRIENDS WITH BRENDA

7342

1 AS BEING AN ASIAN LOOKING GAL?

2 A.: WELL, I’D HAVE TO SAY SHE’S EXOTIC LOOKING.

3 Q.: LET ME SHOW YOU WHAT’S BEEN PREVIOUSLY MARKED AS

4 COURT’S EXHIBIT 146, THIS ASIAN LOOKING LADY IN THE DARK HAIR.

5 DO YOU RECOGNIZE THAT PERSON?

6 A.: BOY, THAT’S A GOOD ONE. SHE MAY HAVE BEEN THE

7 PERSON THAT WAS DANCING ON THE DANCE FLOOR. I DIDN’T REALLY GET

8 A CHANCE TO SEE TOO MUCH OF HER, BUT I DO REMEMBER A SHORT YOUNG

9 LADY WITH DARK SKIN, OR WHAT APPEARED TO ME TO BE DARK SKIN AND

10 DARK HAIR DANCING WITH ANOTHER LADY, WHO LATER ON I FOUND OUT

11 HER NAME WAS BARBARA.

12 Q.: ALL RIGHT.

13 AND THE ASIAN LADY YOU THOUGHT — ASIAN LOOKING

14 LADY YOU THOUGHT WAS DENISE?

15 A.: YES.

16 Q.: AND THIS PHOTOGRAPH HERE APPEARS TO BE THE LADY

17 THAT —

18 MR. BOYCE: MISSTATES THE EVIDENCE, YOUR HONOR.

19 THE COURT: AT THIS POINT IN TIME SUSTAINED.

20 REPHRASE THE QUESTION.

21

22 BY MR. DUSEK:

23 Q.: DO YOU RECALL ME SHOWING YOU THAT PICTURE DURING

24 THE BREAK?

25 A.: YES, I DO.

26 Q.: DO YOU RECALL WHAT YOU SAID?

27 A.: I SAID IT LOOKS LIKE HER.

28 Q.: AND BY HER YOU WERE REFERRING TO DENISE?

7343

1 A.: YES.

2 MR. DUSEK: THANK YOU, MA’AM.

3 THE COURT: ALL RIGHT.

4 ANYTHING FURTHER, MR. FELDMAN?

5

6 REDIRECT EXAMINATION +

7 BY MR. FELDMAN:

8 Q.: I JUST WANT TO SHOW YOU 146 AGAIN. THE TRUTH IS

9 YOU DON’T KNOW WHO THAT WOMAN IS, DO YOU?

10 A.: WELL, SHE KIND OF LOOKS LIKE THE LADY THAT I SAW ON

11 THE DANCE FLOOR.

12 Q.: BUT?

13 A.: BUT I CAN’T BE SURE, TO TELL YOU THE TRUTH. THE

14 HONEST TRUTH IS I AM NOT SURE.

15 MR. FELDMAN: THANK YOU VERY MUCH. NO FURTHER.

16 THE COURT: ANYTHING FURTHER?

17 MR. DUSEK: NO, YOUR HONOR.

18 THE COURT: MAY THIS WITNESS BE EXCUSED, COUNSEL?



19 MR. DUSEK: YES.

20 THE COURT: THANK YOU, MA’AM, FOR COMING IN. PLEASE

21 REMEMBER YOU’RE UNDER AN ADMONITION NOT TO DISCUSS YOUR

22 TESTIMONY WITH ANYONE UNTIL THE MATTER’S COMPLETED.

23 THE WITNESS: YES, YOUR HONOR. MAY I ASK YOU, MAY I

24 LEAVE NOW? DO I HAVE TO WAIT?

25 THE COURT: NO, YOU’RE DONE.

26 THE WITNESS: THANK YOU.

27 THE COURT: YOU’RE OUT OF HERE, SO TO SPEAK. HAVE A GOOD

28 DAY.

7344

1 THE WITNESS: THANK YOU, SIR.

2

3 -RYAN DAVID TYROL, +

4 DEFENDANT’S WITNESS, HAVING BEEN SWORN, TESTIFIED AS FOLLOWS:

5

6 THE COURT: PLEASE HAVE A SEAT, SIR.

7 THE CLERK: SIR, PLEASE STATE YOUR NAME AND SPELL IT FOR

8 THE RECORD.

9 THE WITNESS: RYAN DAVID TYROL, R-Y-A-N, T-Y-R-O-L.

10

11 DIRECT EXAMINATION +

12 BY MR. FELDMAN:

13 Q.: GOOD MORNING, SIR.

14 A.: HOW YOU DOIN’?

15 Q.: WHAT’S YOUR OCCUPATION?

16 A.: I’M A MASON.

17 Q.: DO YOU KNOW SOMEBODY NAMED CHEROKEE YOUNGS?

18 A.: YES.

19 Q.: I’D LIKE TO DIRECT YOUR ATTENTION TO FEBRUARY 1ST,

20 2001(SIC), SIR. DID YOU HAVE OCCASION TO BE AT DAD’S BAR?

21 A.: I WAS.

22 Q.: WHAT TIME DID YOU GET THERE?

23 A.: BETWEEN 8:00 AND 9 O’CLOCK.

24 Q.: PARDON ME?

25 A.: BETWEEN 8:00 AND 9 O’CLOCK.

26 Q.: WHY DID YOU GO THERE?

27 A.: I WAS BORED.

28 Q.: YOU’RE A YOUNG MAN?

7345

1 A.: CORRECT.

2 Q.: IT’S A PLACE TO GO MEET PEOPLE?

3 A.: EXACTLY.

4 Q.: THIS WAS A FRIDAY NIGHT, RIGHT?

5 A.: IT WAS A FRIDAY.

6 Q.: ALL RIGHT.

7 DO YOU RECALL WHETHER OR NOT YOU HAD ANYTHING OF AN

8 ALCOHOLIC NATURE TO DRINK?

9 A.: YES, I DID.

10 Q.: DO YOU RECALL HOW MUCH YOU HAD TO DRINK?

11 A.: NO, I DO NOT.

12 Q.: DO YOU FEEL THAT YOU WERE DRUNK?

13 A.: I WAS A LITTLE BUZZED.

14 Q.: ENOUGH SO THAT YOU DON’T REMEMBER ANYTHING ABOUT

15 THAT NIGHT?

16 A.: NO.

17 Q.: NOW BEFORE YOU CAME TO COURT DID YOU HAVE OCCASION

18 OR THE OPPORTUNITY TO REVIEW OTHER STATEMENTS THAT YOU’VE MADE

19 CONCERNING YOUR RECOLLECTION?

20 A.: YES, I DID.

21 Q.: YOU’VE REVIEWED A POLICE REPORT, IS THAT RIGHT?

22 A.: THAT’S CORRECT.

23 Q.: YOU REVIEWED I THINK THE PORTION OF A DISPATCH

24 TAPE, DIDN’T YOU?

25 A.: YES.

26 Q.: AND NOTES, IS THAT RIGHT?

27 A.: THAT’S CORRECT.

28 Q.: I’M SORRY. IF YOU NOD YOUR HEAD WE ALL SEE IT BUT

7346

1 THERE’S A REPORTER.

2 A.: YES.

3 Q.: AT SOME — I’M MISSING STUFF TODAY.

4 THE COURT: USE A CUP.

5 THE WITNESS: NO PROBLEM.

6 THE COURT: THANK YOU.

7 ALL RIGHT.

8

9 BY MR. FELDMAN:

10 Q.: AT SOME POINT —

11 JUDGE, I —

12 THE COURT: I KNOW. I WISH I WASN’T SEEING SOME OF THIS

13 STUFF, TOO, BUT GO AHEAD, MR. FELDMAN.

14 MR. FELDMAN: WE UNDERSTAND THAT ONE, YOUR HONOR,

15 UNIQUELY, I THINK.

16 THE COURT: OKAY.

17

18 BY MR. FELDMAN:

19 Q.: SIR, IN THE EVENING HOURS OF THE 1ST OF FEBRUARY

20 DID YOU HAVE OCCASION TO MEET A WOMAN IDENTIFIED TO YOU AS

21 CHEROKEE YOUNGS?

22 A.: YES.

23 Q.: CAN YOU TELL US THAT CIRCUMSTANCE, PLEASE?

24 A.: I WAS — I BELIEVE I WAS SITTING AT THE BAR AND

25 CHEROKEE APPROACHED ME. SHE INTRODUCED HERSELF AND WE JUST

26 STARTED TALKING.

27 Q.: ALL RIGHT.

28 AT SOME POINT IN TIME DID ANOTHER FEMALE COME UP IN
7347

1 YOUR DIRECTION — OR FEMALES?

2 A.: YES.

3 Q.: ABOUT HOW MUCH TIME AFTER CHEROKEE INTRODUCED

4 HERSELF, DO YOU RECALL?

5 A.: UNTIL WHEN?

6 Q.: EITHER ANOTHER FEMALE OR FEMALES CAME UP TO YOU?

7 A.: I’M NOT SURE QUITE WHICH FEMALES YOU’RE TALKING

8 ABOUT.

9 Q.: OKAY. LET’S TRY THIS.

10 DOES THE NAME BRENDA VAN DAM RING A BELL WITH YOU?

11 A.: YES.

12 Q.: HOW ABOUT DENISE, DOES THAT RING A BELL?

13 A.: YES.

14 Q.: HOW ABOUT BARBARA, DOES THAT RING A BELL?

15 A.: YES.

16 Q.: WITH REGARD TO BRENDA, DENISE AND BARBARA, HAD YOU

17 SEEN THEM ON THE EVENING OF FEBRUARY 1ST?

18 A.: YES, I DID.

19 Q.: BEFORE YOU MET CHEROKEE HAD YOU SEEN THOSE WOMEN?

20 A.: NO.

21 Q.: AFTER YOU MET CHEROKEE DID YOU HAVE OCCASION TO SEE

22 ANY OF THOSE WOMEN?

23 A.: ONLY THROUGH THE MEDIA.

24 Q.: PARDON ME?

25 A.: ONLY THROUGH THE MEDIA.

26 Q.: WELL, DIDN’T ONE OR THE OTHER COME UP TO YOU THAT

27 EVENING?

28 A.: OH, I’M SORRY. ARE YOU SPEAKING ABOUT THAT

7348

1 EVENING?

2 Q.: YES.

3 A.: YES.

4 Q.: ON THE EVENING OF FEBRUARY THE 1ST, WHEN IS YOUR

5 FIRST RECOLLECTION OF SEEING ANY OF THEM?

6 A.: SHORTLY AFTER I MET CHEROKEE.

7 Q.: CAN YOU TELL US WHICH OF THE WOMEN, IF ANY, CAME UP

8 TO YOU — OR DID THEY COME UP TO YOU?

9 A.: BARBARA AND BRENDA.

10 Q.: ALL RIGHT.

11 AND DO YOU RECALL DID EITHER BARBARA OR BRENDA SAY

12 ANYTHING TO YOU?

13 A.: YEAH, THEY WERE — THEY WERE TALKING TO ME, YOU

14 KNOW. THEY WERE — THEY WERE DRUNK AT THE TIME AND THEY WERE A

15 LITTLE FLIRTATIOUS TOWARDS ME.

16 MR. FELDMAN: YOUR HONOR, JUST FOR A MOMENT ON A SIDE

17 BAR, PLEASE.

18 THE COURT: ALL RIGHT.

19

20

21 (BENCH CONFERENCE NOT A PART OF PUBLIC RECORD.)

22

23 –OCC–

24

25

26

27

28

7349

1

2

3

4

5

6

7

8

9

10

11

12 (THE FOLLOWING PROCEEDINGS WERE HELD IN
OPEN COURT IN THE PRESENCE OF THE JURY:)
13

14 BY MR. FELDMAN:

15 Q.: SIR, I THINK YOU TOLD US THAT BRENDA AND BARBARA

16 HAD COME TO YOUR TABLE, IS THAT RIGHT?

17 A.: THAT’S CORRECT.

18 Q.: AND YOU WERE SEATED THERE WITH CHEROKEE, IS THAT

19 RIGHT?

20 A.: UM-HMM.

21 Q.: DO YOU RECALL IF ONE OF THE WOMEN ASKED YOU AND

22 CHEROKEE WHETHER YOU WOULD LIKE TO COME BACK TO THEIR HOUSE THAT

23 EVENING?

24 A.: THEY DID.

25 Q.: WHICH ONE ASKED YOU, IF YOU RECALL?

26 A.: I BELIEVE IT WAS BARBARA.

27 Q.: DO YOU RECALL TELLING LAW ENFORCEMENT — WELL, I’M

28 SORRY.

7350

1 WHEN BARBARA MADE THAT STATEMENT WAS BRENDA RIGHT

2 THERE?

3 A.: YES.

4 Q.: WHAT, IF ANYTHING, DID BRENDA SAY? DID SHE GO

5 ALONG WITH THE INVITATION?

6 A.: YES.

7 Q.: SO YOU FELT AS THOUGH — OR WHEN THAT STATEMENT WAS

8 MADE TO YOU FROM BARBARA, THAT WAS A SERIOUS PROPOSITION, WASN’T

9 IT?

10 MR. DUSEK: OBJECTION, SPECULATION, LEADING, CONCLUSION.

11 THE COURT: IT’S LEADING. REPHRASE THE QUESTION, I’LL

12 ALLOW IT.

13

14 BY MR. FELDMAN:

15 Q.: ALL RIGHT.

16 DID YOU TAKE THE PROPOSITION AS SERIOUS WHEN IT WAS

17 MADE TO YOU?

18 A.: WHEN IT WAS MADE, YES.

19 Q.: DIDN’T FEEL IT WAS A JOKE?

20 A.: IT WAS IN A JOKING MANNER.

21 Q.: BUT?

22 A.: BUT WHEN YOU GET AN INVITATION LIKE THAT, IT’S NOT

23 EVERY DAY AND YOU NORMALLY TAKE IT SERIOUSLY.

24 Q.: MR. TYROL, I’M SORRY, SIR, HOW OLD ARE YOU?

25 A.: I’M 22 YEARS-OLD.

26 Q.: SINGLE?

27 A.: YES.

28 Q.: YOU CAN TELL WHEN SOMETHING’S SERIOUS AND ISN’T,

7351

1 RIGHT?

2 A.: CORRECT.

3 Q.: THIS MATTER, APPARENTLY YOU DIDN’T THINK TOO MUCH

4 ABOUT IT, BUT AFTER IT HAPPENED YOU RECALL YOU WATCHED SOME

5 TELEVISION, DIDN’T YOU?

6 A.: YES.

7 Q.: AND AS A RESULT OF WHAT YOU SAW ON TELEVISION DID

8 YOU MAKE ANY PHONE CALLS TO THE POLICE DEPARTMENT TO COMMUNICATE

9 TO THEM THAT YOU THOUGHT YOU MIGHT HAVE INFORMATION THAT MIGHT

10 HAVE SOME BEARING ON THE CASE?

11 A.: YES. ABOUT A WEEK LATER I MADE A TELEPHONE CALL TO

12 THE POLICE.

13 Q.: AND YOUR PURPOSE IN MAKING THE TELEPHONE CALL?

14 A.: I THOUGHT, YOU KNOW, ANY KIND OF INFORMATION I

15 COULD GIVE WOULD BE OF BENEFIT, SO I MADE A TELEPHONE CALL.

16 Q.: AND WITH REGARD TO THE INFORMATION YOU FELT

17 APPROPRIATE TO GIVE, SOME OF THAT INFORMATION WAS THAT BRENDA

18 AND HER FRIENDS WERE ALL DRUNK?

19 MR. DUSEK: OBJECTION, LEADING.

20 THE COURT: I’M GOING TO ALLOW IT UNDER THE

21 CIRCUMSTANCES.

22 CONCLUDE YOUR QUESTION.

23 MR. FELDMAN: YES.

24 Q.: AMONG THE REASONS THAT CAUSED YOU TO BELIEVE IT WAS

25 APPROPRIATE TO CALL LAW ENFORCEMENT, WAS YOUR BELIEF THAT BRENDA

26 AND HER FRIENDS WERE ALL DRUNK AND COMING ON TO YOU AND YOUR

27 FRIENDS THAT EVENING, CORRECT?

28 A.: THAT IS CORRECT.

7352

1 Q.: AT TIMES YOU COMMUNICATED THEY SAT ON PEOPLE’S LAPS

2 AND ASKED THEM TO DANCE; IS THAT CORRECT?

3 MR. DUSEK: OBJECTION, LEADING, VAGUE AS TO WHOM.

4 THE COURT: MAKE IT AS TO WHOM SPECIFIC AND I’LL ALLOW IT

5 AS A LEADING QUESTION —

6 MR. FELDMAN: YES, YOUR HONOR.

7 THE COURT: — BASED ON THE RULING AT SIDEBAR.

8 MR. FELDMAN: THANK YOU, YOUR HONOR.

9 Q.: WITH REGARD TO BRENDA, AT TIMES DID YOU OBSERVE

10 BRENDA SITTING ON PEOPLE’S LAPS THAT EVENING?

11 A.: YES, I DID.

12 Q.: AND DID YOU OBSERVE HER ASKING MEN TO DANCE THAT

13 EVENING?

14 A.: NO, I DID NOT.

15 Q.: DO YOU RECALL WHETHER YOU OBSERVED HER DANCING THAT

16 EVENING?

17 A.: YES.

18 Q.: AND WAS SHE?

19 A.: I BELIEVE SO.

20 Q.: WAS SHE DANCING, DO YOU RECALL, WITH MEN, WITH

21 WOMEN, WITH BOTH?

22 A.: I’M NOT QUITE SURE. I DON’T REMEMBER.

23 Q.: AND WERE YOU — WHEN BRENDA TALKED TO YOU — OR

24 WHEN YOU OBSERVED BRENDA, WERE YOU ABLE TO FORM AN OPINION AS TO

25 WHETHER OR NOT SHE WAS INTOXICATED?

26 A.: IT’S A BAR. EVERYONE’S INTOXICATED THERE.

27 Q.: WAS SHE INTOXICATED?

28 A.: SHE PROBABLY HAD A COUPLE DRINKS, YES.

7353

1 Q.: DO YOU RECALL TELLING THE — WELL, ON THE 11TH OF

2 FEBRUARY — I’M SORRY.

3 YOU TOLD US THAT YOU MADE A PHONE CALL TO THE

4 POLICE BECAUSE YOU FELT YOU HAD INFORMATION TO COMMUNICATE.

5 AFTER THAT PHONE CALL WAS MADE DID YOU HAVE OCCASION TO SPEAK

6 PERSONALLY TO A POLICE OFFICER?

7 A.: YES, I DID.

8 Q.: IN FACT, ON FEBRUARY THE 8TH, AT ABOUT WELL IN THE

9 EVENING HOURS YOU WERE AT DAD’S; IS THAT CORRECT?

10 A.: THAT IS CORRECT.

11 Q.: AND YOU HAD THE OPPORTUNITY AT THAT TIME TO SPEAK

12 WITH A POLICE OFFICER, IS THAT RIGHT?

13 A.: UM-HMM.

14 Q.: I’M SORRY?

15 A.: YES.

16 Q.: YOU TOLD THE POLICE OFFICER THAT BRENDA WAS

17 INTOXICATED AND WAS HAVING A GOOD TIME, ISN’T THAT TRUE?

18 A.: YES.

19 Q.: AND THAT SHE HAD DANCED WITH SEVERAL MEN ON THE

20 DANCE FLOOR?

21 A.: YES.

22 Q.: AND THAT YOU AND CHEROKEE REFUSED BRENDA’S

23 INVITATION?

24 A.: CORRECT.

25 MR. FELDMAN: NO FURTHER QUESTIONS.

26 THANK YOU.

27 THE COURT: ALL RIGHT. CROSS-EXAMINATION.

28 ///

7354

1 CROSS-EXAMINATION +

2 BY MR. DUSEK:

3 Q.: THIS WAS A FRIDAY NIGHT?

4 A.: YES.

5 Q.: PAYDAY?

6 A.: YES.

7 Q.: GOT A POCKETFUL OF MONEY?

8 A.: I DID.

9 Q.: YOU WENT TO DAD’S AND SPENT SOME OF IT?

10 A.: TO HAVE FUN.

11 Q.: TRIED TO GET LUCKY?

12 MR. FELDMAN: YOUR HONOR, ARGUMENTATIVE.

13 THE COURT: SUS — WELL, I’M NOT GOING TO GO THERE.

14 NEXT QUESTION, PLEASE.

15

16 BY MR. DUSEK:

17 Q.: YOU WERE LOOKING FOR A LITTLE FEMALE COMPANIONSHIP,

18 WEREN’T YOU?

19 A.: YES.

20 Q.: IF THINGS TURNED OUT RIGHT?

21 A.: I WAS JUST GOING OUT TO A BAR TO HAVE FUN.

22 Q.: AND SOMEBODY CAME UP AND INTRODUCED THEMSELVES TO

23 YOU?

24 A.: A NUMBER OF PEOPLE DID, YES.

25 Q.: HOW ABOUT CHEROKEE YOUNGS?

26 A.: YES.

27 Q.: WAS SHE ONE OF THEM?

28 A.: SHE WAS.

7355

1 Q.: WHAT DID SHE SAY?

2 A.: SHE JUST STRUCK UP A CONVERSATION WITH ME, YOU

3 KNOW, HOW YOU DOIN’, INTRODUCED HERSELF AND I INTRODUCED MYSELF.

4 Q.: SIT DOWN THERE AT THE BAR WITH YOU?

5 A.: YES.

6 Q.: DID YOU BUY HER A DRINK?

7 A.: YES.

8 Q.: HOW MANY?

9 A.: I’M — DO NOT RECALL.

10 Q.: WHAT WOULD YOU ESTIMATE?

11 A.: MAYBE TWO, THREE.

12 Q.: REMEMBER WHAT IT WAS?

13 A.: NO, I DO NOT.

14 Q.: REMEMBER AROUND WHAT TIME OF NIGHT IT WAS?

15 A.: NO, I DO NOT.

16 Q.: YOU GOT THERE, YOU SAY, I THINK AROUND 8 O’CLOCK?

17 A.: BETWEEN 8:00 AND 9:00, CORRECT.

18 Q.: AND YOU LEFT AT WHAT TIME?

19 A.: CLOSING.

20 Q.: IN THAT SPAN ARE YOU ABLE TO ESTIMATE WHEN IT WAS

21 THAT SHE CAME UP TO YOU AT THE BAR?

22 A.: PROBABLY 10:30, SOMEWHERE IN THERE, MAYBE 11:00.

23 Q.: ALL RIGHT.

24 CERTAINLY NOTHING LATER THAN 11 O’CLOCK?

25 A.: IT POSSIBLY COULD BE.

26 Q.: TOWARDS THE END OF THE NIGHT WERE YOU GETTING A

27 LITTLE DRUNK?

28 A.: I WAS A LITTLE TIPSY, CORRECT.

7356

1 Q.: IN FACT, WHEN YOU WERE BEING INTERVIEWED BY THE

2 POLICE OFFICERS DID YOU TELL THEM THAT TOWARDS THE END OF THE

3 EVENING YOU HAVE A DIFFICULT TIME REMEMBERING —

4 A.: YES.

5 Q.: — THE DETAILS?

6 A.: YES.

7 Q.: IN THE TIME THAT THE PROPOSITION WAS MADE TO YOU

8 AND CHEROKEE, WHEN WAS THAT IN THE EVENING, SIR?

9 A.: I’D SAY MAYBE WITHIN THE HALF HOUR AFTER I MET

10 CHEROKEE.

11 Q.: AND THIS WAS AFTER YOU FELT THE EFFECTS OF THE

12 ALCOHOL?

13 A.: YES.

14 Q.: WHAT WERE YOU DRINKING?

15 A.: COORS LIGHT.

16 Q.: ANYTHING ELSE?

17 A.: NOT REALLY, NO.

18 Q.: NOT REALLY OR NO?

19 A.: NO, SORRY.

20 Q.: DO YOU KNOW HOW MUCH MONEY YOU SPENT THERE THAT

21 NIGHT?

22 A.: I DON’T KNOW.

23 Q.: CASH OR CHARGE?

24 A.: CASH.

25 Q.: CAN YOU ESTIMATE FOR US HOW MANY DRINKS?

26 A.: THROUGHOUT THE COURSE OF THE ENTIRE EVENING?

27 Q.: SURE.

28 A.: PROBABLY EIGHT.

7357

1 Q.: OKAY.

2 AND IT WAS TOWARDS THE END OF THIS WHEN THE COMMENT

3 WAS MADE BY BRENDA OR BARBARA ABOUT GOING HOME?

4 A.: TOWARDS THE END OF WHAT?

5 Q.: TOWARDS THE EVENING?

6 A.: TOWARDS THE END OF THE NIGHT? I’D SAY IT WAS JUST

7 ABOUT IN THE MIDDLE.

8 Q.: WELL, SOME OF THE ALCOHOL HAD ALREADY KICKED IN A

9 LITTLE BIT?

10 A.: YES.

11 Q.: WAS DAVID WESTERFIELD THERE THAT NIGHT?

12 A.: I DID NOT SEE HIM, NO.

13 Q.: DO YOU KNOW WHO HE IS?

14 A.: THROUGH THE MEDIA, YES.

15 Q.: DID YOU KNOW WHO HE WAS UP TILL THEN?

16 A.: NO.

17 Q.: HAD YOU EVER SEEN HIM IN DAD’S BEFORE?

18 A.: NO.

19 Q.: WHERE WERE YOU SITTING, SIR, AT THE BAR?

20 A.: PROBABLY RIGHT UP FRONT. RIGHT ON —

21 Q.: LET ME DIRECT YOUR ATTENTION TO THE PHOTOBOARD

22 BEHIND YOU MARKED NO. 31. WE HAVE TRIED TO SHOW AT LEAST SOME

23 PHOTOGRAPHS OF THE BAR IN PHOTOGRAPHS “B”, “C” AND “D” SEEM TO

24 SHOW AT LEAST SOME OF THE INTERIOR.

25 DO YOU SEE THE APPROXIMATE LOCATION WHERE YOU WERE?

26 A.: YES. IN THE MIDDLE OF “C” PROBABLY RIGHT IN THE

27 MIDDLE OF THE BAR, AND ALSO A LOT OF MY TIME WAS SPENT — THANK

28 YOU — A LOT OF MY TIME IS ALWAYS SPENT RIGHT HERE AT THE TABLE

7358

1 THEY HAVE RIGHT THERE.

2 Q.: ALL RIGHT.

3 COULD YOU STEP TO PHOTOGRAPH “B” AND PUT YOUR

4 INITIALS “TR” AT THOSE LOCATIONS THAT YOU JUST TOLD US ABOUT?

5 A.: I’M SORRY?

6 Q.: COULD YOU STEP TO THE BOARD?

7 A.: UM-HMM.

8 Q.: AND TAKE THE BLUE FELT PEN AND PUT YOUR INITIALS

9 “TR” AT THOSE LOCATIONS THAT YOU JUST DESCRIBED FOR US.

10 MR. FELDMAN: YOUR HONOR, HOW ABOUT “RT”?

11

12 BY MR. DUSEK:

13 Q.: R.T.? ALL RIGHT. I’M SORRY.

14 A.: (WITNESS COMPLYING.)

15 Q.: ALL RIGHT, SIR. YOU’VE DONE THAT. THAT’S IN

16 PHOTOGRAPH “B” I BELIEVE.

17 DID YOU DANCE THAT NIGHT?

18 A.: I DON’T RECALL.

19 Q.: WHY NOT?

20 A.: WHY DON’T I RECALL? I PROBABLY DID. NOT A LOT,

21 NO.

22 Q.: DOES THE ALCOHOL AFFECT YOUR MEMORY OF WHAT WAS

23 GOING ON THAT NIGHT?

24 A.: NO.

25 Q.: DO YOU TYPICALLY DANCE WHEN YOU GO TO DAD’S?

26 A.: YES.

27 Q.: HOW OFTEN DO YOU GO?

28 A.: BACK THEN I WAS GOING MAYBE ONCE A WEEK.

7359

1 Q.: SOMETIMES MORE?

2 A.: NO.

3 Q.: WHEN THE POLICE CONTACTED YOU AND INTERVIEWED YOU

4 FOR THIS CASE WHERE WERE YOU?

5 A.: I WAS AT DAD’S.

6 Q.: WHEN WAS THAT?

7 A.: THE WEEK AFTER.

8 Q.: DO YOU REMEMBER WHAT TIME OF NIGHT IT WAS THAT THEY

9 INTERVIEWED YOU THAT NIGHT?

10 A.: NO, I DO NOT.

11 Q.: WERE YOU DRINKING THAT NIGHT ALSO?

12 A.: YES, I WAS.

13 Q.: DID YOU PLAY ANY POOL?

14 A.: NO.

15 Q.: DID YOU SEE BRENDA VAN DAM ANY OF HER FRIENDS PLAY

16 POOL THAT NIGHT?

17 A.: NO.

18 Q.: WERE YOU EVER IN THE POOL ROOM?

19 A.: NO.

20 Q.: DO YOU SMOKE?

21 A.: YES.

22 Q.: WERE YOU IN THE SMOKING ROOM AT TIMES?

23 A.: YES, I WAS.

24 Q.: THE FRIENDS THAT BRENDA VAN DAM WERE WITH, CAN YOU

25 DESCRIBE THEM?

26 A.: BARBARA AND DENISE, BARBARA’S THE TALLER WOMAN,

27 OLDER. DENISE, A SHORTER AND YOUNGER, I’D SAY PROBABLY IN HER

28 MID 20’S. BARBARA SOMEWHERE IN HER 40’S.

7360

1 Q.: DENISE, LIGHT HAIR OR DARK HAIR?

2 A.: DARK HAIR.

3 Q.: DID SHE LOOK A LITTLE ASIAN OR SOUTH PACIFIC

4 PERHAPS?

5 A.: POSSIBLY. SHE HAD DARK HAIR. I REMEMBER THAT

6 CLEARLY.

7 Q.: LET ME SHOW YOU WHAT’S BEEN PREVIOUSLY MARKED AS

8 COURT’S EXHIBIT 146. AND THE DARK HAIRED LADY IN THAT FIRST

9 PHOTOGRAPH, DO YOU RECOGNIZE HER?

10 A.: YES.

11 Q.: HOW? DOES THAT LOOK LIKE DENISE?

12 A.: YES.

13 Q.: WHY DO YOU SAY THAT?

14 A.: WHY DO I SAY THAT?

15 Q.: SHE LOOKS LIKE HER, DOESN’T SHE?

16 A.: YEAH.

17 Q.: ALL RIGHT.

18 HAD YOU EVER SEEN HER BEFORE?

19 A.: NO.

20 Q.: WAS SHE DANCING?

21 A.: I DON’T RECALL.

22 Q.: DO YOU RECALL IF DAVID WESTERFIELD WAS DANCING?

23 A.: I NEVER SAW DAVID WESTERFIELD THAT NIGHT.

24 Q.: DO YOU RECALL IF BRENDA VAN DAM WAS DANCING?

25 A.: YES.

26 Q.: HOW CAN YOU REMEMBER THAT?

27 A.: I JUST DO.

28 Q.: DO YOU REMEMBER WHO SHE WAS DANCING WITH?

7361

1 A.: NO, I DO NOT.

2 Q.: MALE OR FEMALE?

3 A.: DO NOT REMEMBER.

4 Q.: HOW ABOUT BARBARA, WAS SHE DANCING?

5 A.: YES.

6 Q.: DO YOU KNOW WHO SHE WAS DANCING WITH?

7 A.: NO, I DO NOT.

8 Q.: CAN YOU TELL IF IT WAS MALE OR FEMALE?

9 A.: NO.

10 Q.: ANYTHING UNUSUAL ABOUT THE WAY THEY WERE DANCING?

11 A.: SAME AS EVERYONE ELSE.

12 Q.: NOTHING OUT OF THE ORDINARY?

13 A.: NOT REALLY.

14 Q.: NOT MAKING A SCENE OF THEMSELVES ON THE DANCE

15 FLOOR?

16 A.: NO.

17 Q.: DID YOU SEE BRENDA VAN DAM AND HER FRIENDS LEAVE?

18 A.: YES, I DID.

19 Q.: WHERE WERE YOU WHEN THAT HAPPENED?

20 A.: SMOKING LOUNGE.

21 Q.: AND HOW DID YOU BECOME AWARE THAT THEY WERE

22 LEAVING?

23 A.: THEY WERE OUT THERE PREVIOUSLY. RIGHT BEFORE THEY

24 LEFT THEY WERE SITTING OUT THERE TALKING TO US.

25 Q.: IN THE SMOKING LOUNGE?

26 A.: THAT’S CORRECT.

27 Q.: AND THEN THEY LEFT FROM THERE IN THEIR CARS?

28 A.: I BELIEVE SO, YES.

7362

1 Q.: DID YOU SEE ‘EM ACTUALLY LEAVE IN THEIR VEHICLES?

2 A.: NO, I DID NOT.

3 Q.: DID ANYONE FOLLOW ‘EM OUTSIDE?

4 A.: I BELIEVE THERE WERE — I KNOW THREE OF THEM LEFT

5 AND I BELIEVE THEY HAD AT LEAST ONE GUY LEFT WITH THEM.

6 Q.: DO YOU KNOW IF THE GUY WAS PEOPLE — A GUY THAT

7 THEY HAD BEEN WITH THAT EVENING?

8 A.: THEY WERE TALKING TO HIM. I SAW HIM OUT IN THE

9 SMOKING LOUNGE, TOO.

10 Q.: THEY APPEARED TO BE FRIENDLY WITH THAT FELLA?

11 A.: CORRECT.

12 Q.: AFTER YOU GOT THE INVITE DID YOU GO HOME WITH THEM?

13 A.: NO.

14 Q.: YOU DIDN’T FOLLOW ‘EM HOME, DID YOU?

15 A.: NO.

16 Q.: DIDN’T GO INTO THAT HOUSE?

17 A.: NO.

18 Q.: HOW ABOUT CHEROKEE, WHERE DID SHE GO THAT NIGHT, DO

19 YOU KNOW?

20 A.: SHE WENT HOME.

21 Q.: DID YOU SEE HER LEAVE?

22 A.: YES.

23 Q.: BEFORE OR AFTER YOU?

24 A.: SAME TIME.

25 Q.: HAVE YOU SEEN HER SINCE?

26 A.: YES.

27 Q.: WHERE?

28 A.: OUT AT O’HARLEY’S. WE’VE HUNG OUT A COUPLE TIMES.

7363

1 I THINK I TOOK HER OUT TO A MOVIE.

2 Q.: YOU STARTED DATING HER SINCE THEN?

3 A.: CORRECT.

4 Q.: SO IT WAS A GOOD DAY AT DAD’S, HUH?

5 A.: YES.

6 MR. DUSEK: THANK YOU, SIR. NOTHING FURTHER.

7 THE COURT: ANY REDIRECT, MR. FELDMAN?

8

9 REDIRECT EXAMINATION +

10 BY MR. FELDMAN:

11 Q.: I COULDN’T TELL IN ONE OF YOUR RESPONSES HERE.

12 APPARENTLY THE WOMEN IN YOUR RECOLLECTION WERE NOT MAKING A

13 SCENE OF THEMSELVES — A SCENE OF THEMSELVES ON THE — ON THE

14 DANCE FLOOR. HOW ABOUT OFF THE DANCE FLOOR, HOW WERE THEY

15 BEHAVING?

16 A.: THEY WERE PARTYING. THEY WERE HAVING A GOOD TIME.

17 THEY WERE TALKING TO A LOT OF PEOPLE AND, YOU KNOW, THEY WERE

18 SITTING ON PEOPLE’S LAPS AND JUST — THEY WERE MINGLING AMONGST

19 THEMSELVES AND HAVING A GOOD TIME.

20 Q.: DO YOU REMEMBER — DO YOU HAVE A SPECIFIC

21 RECOLLECTION REMEMBERING HOW BRENDA VAN DAM WAS DRESSED THAT

22 NIGHT?

23 A.: NO. I DON’T REALLY RECALL.

24 Q.: THIS PHOTOGRAPH THAT MR. DUSEK SHOWED YOU, YOU’VE

25 NEVER SEEN THAT A PHOTO BEFORE, HAVE YOU?

26 A.: NO, I HAVE NOT.

27 Q.: YOU WERE TRUSTING THAT HE WAS SHOWING YOU A

28 PHOTOGRAPH THAT DEPICTED WHAT THE SUBJECT MATTER WAS, ISN’T THAT

7364

1 RIGHT?

2 A.: THAT’S CORRECT.

3 Q.: YOU DON’T REALLY KNOW WHO’S IN THE PICTURE BECAUSE

4 YOU HAD NEVER SEEN THE PICTURE BEFORE, ISN’T THAT TRUE?

5 A.: THAT’S CORRECT.

6 Q.: SO YOU’RE NOT SAYING THAT IT’S YOUR INDEPENDENT

7 RECOLLECTION THAT THE FEMALE THAT’S DEPICTED IN 146 IS DENISE.

8 YOU WERE JUST SAYING YOU TRUSTED MR. DUSEK NOT TO DECEIVE —

9 MR. DUSEK: OBJECTION, MISSTATES THE EVIDENCE,

10 SPECULATION, CONCLUSION.

11 THE COURT: SUSTAINED ON ALL THREE GROUNDS.

12

13 BY MR. FELDMAN:

14 Q.: YOU’RE NOT SAYING THAT THE FEMALE DEPICTED IN 146

15 IS DENISE KEMEL, ARE YOU?

16 MR. DUSEK: MISSTATES THE EVIDENCE, YOUR HONOR.

17 THE COURT: SUSTAINED.

18

19 BY MR. FELDMAN:

20 Q.: YOU REMEMBER THAT THE WOMAN YOU’VE IDENTIFIED AS

21 DENISE MAY HAVE HAD, I’LL SAY, AN ASIAN APPEARANCE, IS THAT

22 RIGHT?

23 A.: YES. BUT DENISE WAS — I DIDN’T SPEAK TO DENISE

24 NEARLY AS MUCH THAT NIGHT AS I DID BARBARA OR BRENDA. SHE —

25 Q.: I’M SORRY. AND I JUST WANT TO CLARIFY, 146, THAT

26 PHOTOGRAPH, YOU’RE NOT SAYING THAT’S THE WOMAN YOU SAW THAT

27 EVENING, ARE YOU?

28 A.: I’M SAYING IT’S GOT SIMILAR CHARACTERISTICS TO WHAT

7365

1 I REMEMBER HER LOOKING LIKE.

2 Q.: ASIAN?

3 A.: POSSIBLY, YES.

4 Q.: I THINK YOU DESCRIBED DENISE AS BEING IN HER MID

5 20S, IS THAT RIGHT?

6 A.: THAT’S CORRECT.

7 Q.: THIS WOMAN IN 146, THE ONE ON THE LEFT, NOT THE ONE

8 ON THE RIGHT, DO YOU HAVE AN OPINION AS TO HER AGE?

9 A.: PROBABLY 30S, MID 30S.

10 Q.: SO WE START WITH THE DISTINCTION THAT SHE’S OLDER

11 THAN WHAT YOU REMEMBER DENISE TO BE, IS THAT RIGHT?

12 A.: YES.

13 Q.: AND AGAIN, THE FIRST TIME YOU WERE EVER SHOWN THIS

14 PICTURE WAS IN THE COURTROOM TODAY?

15 A.: THAT’S RIGHT.

16 MR. FELDMAN: NO FURTHER QUESTIONS.

17 THE COURT: ANYTHING FURTHER, MR. DUSEK?

18 MR. DUSEK: NO, YOUR HONOR. THANK YOU.

19 THE COURT: ALL RIGHT.

20 IS THIS WITNESS TO BE EXCUSED COUNSEL?

21 MR. FELDMAN: EXCUSE ME.

22 (PAUSE)

23 MR. FELDMAN: I’M SORRY. I’M SORRY.

24 THE COURT: ALL RIGHT.

25

26 BY MR. FELDMAN:

27 Q.: JUST IN TERMS OF THE INTRODUCTION THAT CHEROKEE

28 MADE TO YOU, WITH REGARD TO THE INTRODUCTION THAT CHEROKEE MADE

7366

1 TO YOU, DID IT SEEM TO YOU AS THOUGH SHE WAS COMING UP IN

2 SELF-DEFENSE?

3 MR. DUSEK: OBJECTION, SPECULATION.

4 THE COURT: SUSTAINED.

5

6 BY MR. FELDMAN:

7 Q.: DID SHE SAY ANYTHING TO YOU THAT CAUSED YOU TO FORM

8 THE OPINION THAT SHE WANTED PROTECTION FROM WHAT WAS HAPPENING

9 TO HER?

10 MR. DUSEK: OBJECTION, HEARSAY.

11 THE COURT: OVERRULED. YOU CAN ANSWER.

12 THE WITNESS: SHE DID SAY “YOU’RE OFFICIALLY MY BOYFRIEND

13 FOR THE EVENING” AND SHE GRABBED ONTO ME AND WE TALKED MOST OF

14 THE EVENING.

15

16 BY MR. FELDMAN:

17 Q.: DID SHE TELL YOU THE REASON YOU WERE HER BOYFRIEND

18 FOR THE EVENING WAS BECAUSE BARBARA AND BRENDA —

19 MR. DUSEK: OBJECTION, LEADING.

20 MR. FELDMAN: — WERE PURSUING HER.

21 THE COURT: BASED ON THE SIDEBAR RULING I’M GOING TO

22 ALLOW THE LEADING QUESTION. YOU MAY REPHRASE IT OR HAVE IT READ

23 BACK, MR. FELDMAN.

24

25 BY MR. FELDMAN:

26 Q.: DID SHE SAY THAT THE REASON YOU WERE HER BOYFRIEND

27 FOR THE EVENING WAS BECAUSE BARBARA AND BRENDA WERE PURSUING

28 HER?

7367

1 A.: YES.

2 MR. FELDMAN: NO FURTHER QUESTIONS.

3 THE COURT: ALL RIGHT.

4

5 RECROSS-EXAMINATION +

6 BY MR. DUSEK:

7 Q.: AT THE FIRST TIME SHE CAME TO THE BAR OR LATER IN

8 THE EVENING?

9 A.: LATER IN THE EVENING SHE MENTIONED THAT.

10 Q.: SO THE FIRST TIME SHE CAME UP IT WAS JUST A

11 PERSONAL CONTACT BETWEEN YOU AND HER?

12 A.: THAT IS CORRECT.

13 MR. DUSEK: THANK YOU.

14 THE COURT: ALL RIGHT.

15 ANYTHING FURTHER, COUNSEL?

16 MR. FELDMAN: THANK YOU VERY MUCH, NO.

17 THE COURT: ALL RIGHT. SIR, THANK YOU VERY MUCH FOR

18 COMING IN. YOU’RE FREE TO LEAVE THESE PROCEEDINGS. REMEMBER

19 YOU’RE UNDER AN ADMONITION NOT TO DISCUSS YOUR TESTIMONY WITH

20 ANYONE UNTIL THE MATTER’S CONCLUDED, OKAY.

21 THE WITNESS: OKAY.

22 THE COURT: ALL RIGHT.

23 MR. FELDMAN: CAN I HAVE A MOMENT WITH COUNSEL, PLEASE?

24 (PAUSE)

25

26 ///

27 ///

28 ///

7368

1 -DUANE BLAKE, +

2 DEFENDANT’S WITNESS, HAVING BEEN SWORN, TESTIFIED AS FOLLOWS:

3

4 THE COURT: PLEASE HAVE A SEAT, SIR.

5 THE CLERK: SIR, PLEASE STATE YOUR NAME AND SPELL IT FOR

6 THE RECORD.

7 THE WITNESS: DUANE BLAKE, D-U-A-N-E, B-L-A-K-E.

8

9 DIRECT EXAMINATION +

10 BY MR. FELDMAN:

11 Q.: SIR, I’M NOT ASKING THE NAME OF THE BUSINESS, I’M

12 ASKING WHAT’S YOUR OCCUPATION?

13 A.: FISHERMAN.

14 Q.: I’D LIKE TO DIRECT YOUR ATTENTION TO FEBRUARY THE

15 1ST, 2002, THAT WOULD BE A FRIDAY NIGHT.

16 DID YOU HAVE OCCASION, SIR, TO GO TO DAD’S?

17 A.: YES.

18 Q.: DID YOU GO WITH ANYBODY?

19 A.: YES.

20 Q.: FRIENDS?

21 A.: YES, KEVIN AND LINDA FARRELL.

22 Q.: ALL RIGHT.

23 EARLIER THAT DAY HAD YOU BEEN DOING ANYTHING?

24 A.: WORKING.

25 Q.: SOMETHING TO DO WITH THE VFW?

26 A.: YES. I HAD STOPPED AT THE VFW EARLIER.

27 Q.: WHY?

28 A.: TO HAVE A COCKTAIL.

7369

1 Q.: OKAY.

2 DO YOU DO VOLUNTEER SERVICE OR COMMUNITY SERVICE

3 WITH REGARD TO THE VFW OR VETERANS?

4 MR. DUSEK: OBJECTION, IRRELEVANT.

5 THE COURT: OVERRULED.

6 YOU CAN ANSWER THAT.

7 THE WITNESS: YES, I DO. I COOK BREAKFASTS AND STUFF FOR

8 THEM AS A VOLUNTEER, VETERANS OF FOREIGN WARS.

9

10 BY MR. FELDMAN:

11 Q.: HAVE YOU BEEN DOING THAT FOR A WHILE?

12 A.: YES.

13 Q.: ON FEBRUARY 1ST, DO YOU RECALL SEEING A WOMAN THAT

14 YOU LATER LEARNED TO BE BRENDA VAN DAM AT DAD’S BAR?

15 A.: YES.

16 Q.: WHAT IS IT ABOUT THIS WOMAN THAT DREW YOUR

17 ATTENTION TO HER?

18 A.: WOULD YOU REPEAT THE QUESTION, PLEASE?

19 Q.: WHAT IS IT, IF ANYTHING, THAT YOU OBSERVED ON

20 FEBRUARY THE 1ST THAT DREW YOUR ATTENTION TO HER?

21 A.: PROBABLY THE BLONDE HAIR AND JUST ANOTHER GAL

22 RUNNING AROUND THE CLUB.

23 Q.: ALL RIGHT.

24 THE WEEK PRECEDING, ON JANUARY THE 25TH, SIR, HAD

25 YOU GONE TO DAD’S BAR?

26 A.: YES.

27 Q.: AND DO YOU RECALL WHETHER OR NOT YOU SAW ANYBODY AT

28 DAD’S BAR ON THE 25TH OF JANUARY THAT YOU LATER SAW ON THE 1ST

7370

1 OF FEBRUARY?

2 A.: YES.

3 Q.: PLEASE TELL ME WHO?

4 A.: THERE WAS A NUMBER OF PEOPLE DIRECTLY RELATED TO

5 THE ISSUE — THIS ISSUE. WOULD BE DENISE, BARBARA, BRENDA, SOME

6 OF MY OTHER FRIENDS, I CAN’T RECALL THE NAMES.

7 Q.: SIR, WHY — WHAT IS IT ABOUT DENISE, BARBARA AND

8 BRENDA THAT CAUSES YOU TO REMEMBER THEM FROM THE 25TH, IF

9 ANYTHING?

10 A.: I HAD SPENT SOME TIME SITTING WITH THEM AND TALKING

11 AND INTERACTING.

12 Q.: HOW WAS THEIR BEHAVIOR ON THE 25TH?

13 A.: BRENDA WAS VERY QUIET, POLITE, NICE. DENISE AND

14 BARBARA WAS FEELING NO PAIN, YOU KNOW, BASICALLY HAVING A GOOD

15 TIME.

16 Q.: I’M SORRY. WHEN YOU SAY “FEELING NO PAIN” WHAT DO

17 YOU MEAN TO COMMUNICATE?

18 A.: HAD HAD A FEW COCKTAILS.

19 Q.: IN YOUR LIFE YOU’VE HAD A FEW COCKTAILS?

20 A.: OF COURSE.

21 Q.: AND ARE YOU ABLE TO FORM AN OPINION BASED ON YOUR

22 PERSONAL EXPERIENCE AS TO WHETHER OR NOT A PERSON MAY BE

23 IMPAIRED AS A RESULT OF THEIR ALCOHOL USE?

24 A.: YES.

25 Q.: CAN YOU TELL US WHETHER OR NOT ON THE 25TH ANY OF

26 THE WOMEN APPEARED TO BE IMPAIRED IN ANY MANNER BY THEIR ALCOHOL

27 USE?

28 A.: YES.

7371

1 Q.: WERE THEY?

2 A.: TWO OF THE THREE I BELIEVE WERE, YES.

3 Q.: WHICH TWO, PLEASE?

4 A.: DENISE AND BARBARA.

5 Q.: THE NEXT WEEK YOU WENT BACK TO DAD’S, IS THAT

6 RIGHT?

7 A.: YES.

8 Q.: WHEN YOU GOT TO DAD’S I THINK YOU TOLD US THAT YOU

9 SAW BRENDA AND HER FRIENDS, IS THAT RIGHT?

10 A.: YES.

11 Q.: WITH REGARD TO THEIR BEHAVIOR ON THE 1ST OF

12 FEBRUARY, WAS IT DIFFERENT THAN THEIR BEHAVIOR ON THE 25TH OF

13 JANUARY?

14 A.: SOMEWHAT.

15 Q.: CAN YOU PLEASE DESCRIBE HOW?

16 A.: MOST OF THE BEHAVIOR WAS THE SAME AS FAR AS HAVING

17 SOME COCKTAILS, JUST KIND OF RUNNING AROUND, DOING WHATEVER YOU

18 DO IN DAD’S CAFE IN THE EVENINGS LIKE THAT. BOTH OCCASIONS

19 THEIR TAIL FEATHERS WERE UP.

20 Q.: WHAT DOES THAT MEAN?

21 A.: HOW CAN I PHRASE THIS WITHOUT BEING RUDE?

22 Q.: ACCURATELY.

23 A.: LOOKING FOR A MAN, OKAY.

24 Q.: OKAY.

25 DID YOU FORM THAT OPINION AS TO ALL THREE, ONE,

26 TWO?

27 A.: NO, JUST TWO.

28 Q.: WHICH TWO?

7372

1 A.: DENISE AND BARBARA.

2 Q.: ALL RIGHT.

3 AT SOME POINT IN TIME DID YOU OBSERVE ANYBODY THAT

4 YOU LATER LEARNED WAS DAVID WESTERFIELD?

5 A.: YES.

6 Q.: AND DO YOU RECALL AT SOME POINT SEEING MR.

7 WESTERFIELD AND BRENDA VAN DAM TOGETHER DANCING?

8 A.: AT ONE POINT I DID CATCH A GLIMPSE OF THAT, YES.

9 Q.: AND DID YOU DESCRIBE THE MANNER IN WHICH THEY WERE

10 DANCING AS, QUOTE, “HUGGIE-HUGGIE” ON THE DANCE FLOOR?

11 MR. DUSEK: OBJECTION, LEADING.

12 THE COURT: SUSTAINED. REPHRASE IT.

13

14 BY MR. FELDMAN:

15 Q.: SPECIFICALLY DIRECTING YOUR ATTENTION TO MAY THE

16 2ND, 2002, DID YOU HAVE OCCASION TO SPEAK WITH A DEPUTY — WITH

17 A DISTRICT ATTORNEY INVESTIGATOR WHOSE NAME IS RICHARD COOKSEY?

18 A.: YES.

19 Q.: AND BEFORE COMING TO COURT YOU WERE PROVIDED COPIES

20 OF YOUR STATEMENT TO RICHARD COOKSEY, THAT DISTRICT ATTORNEY

21 INVESTIGATOR, IS THAT RIGHT?

22 A.: YES.

23 Q.: AND YOU WERE ALSO PROVIDED COPIES OF THE POLICE

24 REPORT THAT YOU MADE WHEN YOU WERE TALKED TO BY THE POLICE ABOUT

25 THE EVENTS; IS THAT CORRECT?

26 A.: YES.

27 Q.: DO YOU RECALL IN YOUR COMMUNICATION WITH MR.

28 COOKSEY ON MAY THE 2ND DESCRIBING A MANNER IN WHICH IT APPEARED

7373

1 TO YOU THAT DAVID WESTERFIELD WAS DANCING WITH BRENDA VAN DAM?

2 A.: YES.

3 Q.: WHAT WAS THE MANNER — WHAT WERE THE WORDS YOU

4 USED, AS BEST YOU CAN RECALL, TO DESCRIBE THE MANNER IN WHICH

5 MR. WESTERFIELD AND MRS. VAN DAM WERE DANCING THAT EVENING?

6 A.: JUST KIND OF “HUGGIE HUGGIE” FROM WHAT I SEEN, JUST

7 LIKE MAYBE ANYONE ELSE WOULD BE DANCING THAT’S HAD SOME

8 COCKTAILS AS, YOU KNOW, THAT’S ON THE DANCE FLOOR.

9 Q.: DO YOU RECALL WHETHER THE DANCE THAT THEY WERE

10 “HUGGIE HUGGIE” ABOUT WAS A SLOW DANCE, A MEDIUM DANCE, WHAT

11 KIND OF DANCE?

12 A.: I DON’T KNOW. I DON’T LISTEN TO THE MUSIC. I JUST

13 REALLY DON’T — COULDN’T TELL YOU.

14 Q.: WHEN YOU TALKED TO MR. COOKSEY DID YOU ACCURATELY,

15 AS ACCURATELY AS YOU COULD, DESCRIBE WHAT YOU REMEMBER?

16 A.: YES, I DID.

17 Q.: DO YOU RECALL ON THE EVENING OF THE 2ND OF — I’M

18 SORRY — ON THE EVENING OF THE 1ST OF FEBRUARY SEEING OTHER MEN

19 THAT APPEARED TO BE ASSOCIATED IN SOME MANNER WITH BARBARA

20 DENISE AND BRENDA?

21 A.: YES.

22 Q.: IF I GAVE YOU THE NAMES, RICH BRADY AND KEITH

23 STONE, WOULD THAT RING A BELL WITH YOU?

24 A.: YES.

25 Q.: WITH REGARD TO MR. BRADY AND MR. STONE, DID YOU

26 NOTICE WHETHER OR NOT THEY WERE IN SOME MANNER INTERACTING WITH

27 THE WOMEN?

28 A.: AT THE POINTS OF THE NIGHT THAT I HAD SEEN THE

7374

1 WOMEN AROUND, YES.

2 Q.: OKAY.

3 AND DID YOU FORM AN OPINION AS TO WHETHER OR NOT

4 KEITH AND RICH WERE UNDER THE INFLUENCE OF ANYTHING?

5 MR. DUSEK: OBJECTION, NO FOUNDATION.

6 THE COURT: REPHRASE IT AND LAY A FOUNDATION. I’LL ALLOW

7 THE AREA OF INQUIRY.

8

9 BY MR. FELDMAN:

10 Q.: SIR, IN YOUR LIFE EXPERIENCE HAVE YOU HAD OCCASION

11 TO NOTICE WHETHER OR NOT PEOPLE HAVE UTILIZED MARIJUANA?

12 A.: YES.

13 Q.: IN YOUR LIFE EXPERIENCE HAVE YOU NOTICED WHETHER OR

14 NOT PEOPLE WHO HAVE UTILIZED MARIJUANA HAVE SHOWN IMPAIRMENT OR

15 SOME SYMPTOMS CONSISTENT WITH MARIJUANA USE?

16 A.: YES.

17 Q.: BASED UPON YOUR LIFE EXPERIENCE, ARE YOU — WERE

18 YOU ABLE TO FORM AN OPINION AS TO WHETHER OR NOT KEITH AND RICH

19 APPEARED IMPAIRED IN ANY MANNER BY MARIJUANA OR ANYTHING ELSE?

20 MR. DUSEK: OBJECTION, NO FOUNDATION AS TO HIS EXPOSURE

21 TO THEM.

22 THE COURT: COVER ALCOHOL AND THEN I’LL ALLOW THE AREA OF

23 INQUIRY.

24 MR. FELDMAN: OKAY.

25 Q.: WITH REGARD TO ALCOHOL, SIR, —

26 THAT’S FOUNDATION?

27 THE COURT: YES.

28 ///

7375

1 BY MR. FELDMAN:

2 Q.: WITH REGARD TO ALCOHOL, SIR, DO YOU RECALL WHETHER

3 OR NOT YOU SAW MISTERS BRADY AND STONE DRINKING ALCOHOL?

4 A.: THEY WERE WITH A GROUP THAT WAS DRINKING, PEOPLE

5 HAD DRINKS IN FRONT OF THEM. I COULDN’T REALLY SAY WHAT WAS IN

6 THEIR CUP, BUT IT APPEARED TO ME THEY WERE DRINKING ALCOHOL.

7 Q.: BASED ON YOUR LIFE EXPERIENCE ARE YOU ABLE TO FORM

8 OPINIONS ON WHETHER OR NOT PEOPLE ARE UNDER THE INFLUENCE OF

9 ALCOHOL AND MARIJUANA?

10 A.: I WOULD SAY YES.

11 Q.: SPECIFICALLY DIRECTING YOUR ATTENTION TO FEBRUARY

12 THE 1ST, WERE YOU ABLE TO FORM AN OPINION AS TO WHETHER OR NOT

13 KEITH AND RICH WERE UNDER THE INFLUENCE OF ONE, THE OTHER OR

14 BOTH OF THOSE SUBSTANCES?

15 A.: FROM WHAT I HAD SEEN OF THEM THAT NIGHT, I WOULD

16 HAVE TO SAY THAT THEY WERE LOADED, STONED AND POSSIBLY ALCOHOL.

17 Q.: AND WITH REGARD TO YOUR USE OF THE WORD “LOADED”

18 WHAT DO YOU MEAN TO COMMUNICATE?

19 A.: SMOKING A BOWL.

20 Q.: OKAY.

21 IN OTHER WORDS, THE WAY SOMEBODY IS AFTER THEY’VE

22 USED MARIJUANA?

23 A.: YEAH, SYMPTOMS, RED EYED HUNGRY, SMELL LIKE POT.

24 Q.: ALL RIGHT.

25 MR. FELDMAN: EXCUSE ME.

26 (PAUSE)

27 Q.: WITH REGARD TO DAVID WESTERFIELD, PRIOR TO FEBRUARY

28 1ST DID YOU KNOW WHO MR. WESTERFIELD WAS?

7376

1 A.: DIDN’T KNOW HIM PERSONALLY. I HAD SEEN HIM. POWAY

2 IS A SMALL TOWN, AS YOU CAN TELL.

3 Q.: YOU DON’T LOOK LIKE EVERYBODY IN POWAY.

4 A.: I’M GETTING THERE. IT’S THE POWAY DO.

5 Q.: WITH REGARD TO MR. WESTERFIELD, SIR, DO YOU HAVE A

6 RECOLLECTION OF SEEING WHAT TIME MR. WESTERFIELD LEFT THAT

7 EVENING?

8 A.: WHICH EVENING?

9 Q.: I’M SORRY. FEBRUARY 1ST?

10 A.: TO THE BEST OF MY RECOLLECTION, IT WAS BEFORE I

11 LEFT, I THOUGHT AT CLOSING SOMEWHERE AROUND 1 O’CLOCK. I’M

12 THINKING MAYBE IT’S POSSIBLY THAT LATE. I WASN’T REALLY KEEPING

13 TRACK OF TIME.

14 Q.: WHAT DO YOU RECALL — WHAT TIME DID YOU LEAVE,

15 ABOUT?

16 A.: WELL, THE LIGHTS HAD COME ON AND THAT WAS LAST CALL

17 AND I HAD TWO INTOXICATED PEOPLE WITH ME I HAD TO ROLL INTO A

18 CAR, SO IT WAS SOMEWHERE BETWEEN 1:30 AND 2:00.

19 Q.: DO YOU RECALL HOW MUCH YOU HAD TO DRINK THAT NIGHT,

20 SIR?

21 A.: AT DAD’S I WAS DRINKING COFFEE. EARLIER I HAD HAD

22 A COUPLE COCKTAILS. WHEN I GOT HOME I HAD SOME COCKTAILS.

23 Q.: BUT YOU WERE THE DESIGNATED DRIVER?

24 A.: YES.

25 Q.: AND SO YOU WERE STRAIGHT?

26 A.: YES. I HAD STOPPED BECAUSE I WAS DRIVING THESE

27 PEOPLE.

28 MR. FELDMAN: THANK YOU VERY MUCH. NO FURTHER.

7377

1 THE COURT: ALL RIGHT. CROSS-EXAMINATION.

2

3 CROSS-EXAMINATION +

4 BY MR. DUSEK:

5 Q.: WHEN PEOPLE HAVE HAD TOO MUCH TO DRINK DO THEY GET

6 RED EYES?

7 A.: NORMALLY.

8 Q.: WHEN PEOPLE ARE AROUND OTHERS WHO SMOKE MARIJUANA

9 DO THEY SMELL LIKE POT?

10 A.: YES, THEY COULD.

11 Q.: THE FACT THAT YOU’VE GOT MARIJUANA SMOKE BLOWING

12 AROUND A LOT OF PEOPLE ARE GOING TO GET THAT ODOR ON THEM,

13 AREN’T THEY?

14 A.: NOT NECESSARILY.

15 Q.: HOW FAR AWAY DO YOU HAVE TO BE NOT TO GET THAT ODOR

16 ON YOU?

17 A.: AT LEAST FIVE FEET PLUS. ALL DEPENDS WHICH WAY,

18 YOU KNOW, SMOKE’S BLOWING, WHERE IT’S GOING. THERE’S A LOT OF

19 VARIABLES HERE THAT COULD —

20 Q.: ARE YOU TALKING FROM PERSONAL EXPERIENCE?

21 A.: COULD BE.

22 Q.: IS IT?

23 A.: AS FAR AS WHAT PERSONAL EXPERIENCE ON?

24 Q.: WITH MARIJUANA?

25 A.: I WAS A TEENAGER, TOO.

26 Q.: YOU’VE BEEN AN ADULT TOO, HAVEN’T YOU?

27 A.: YES.

28 Q.: WHEN WAS THE LAST TIME YOU USED?

7378

1 MR. FELDMAN: RELEVANCE, OBJECTION.

2 THE COURT: SUSTAINED.

3

4 BY MR. DUSEK:

5 Q.: WHEN WAS THE LAST TIME YOU WERE AROUND THE SMOKE OF

6 MARIJUANA?

7 MR. FELDMAN: SAME OBJECTION.

8 THE COURT: OVERRULED.

9 YOU CAN ANSWER THAT.

10 THE WITNESS: I DON’T RECALL.

11

12 BY MR. DUSEK:

13 Q.: HOW LONG WOULD YOU ESTIMATE IT WAS?

14 MR. FELDMAN: I’M SORRY, VAGUE, IT —

15 THE COURT: SUSTAINED. REPHRASE.

16

17 BY MR. DUSEK:

18 Q.: HOW LONG WOULD YOU ESTIMATE IT’S BEEN SINCE YOU’VE

19 BEEN AROUND THE SMOKE OF MARIJUANA?

20 A.: MONTH.

21 Q.: DID YOU GET THE SMOKE ON YOU?

22 MR. FELDMAN: RELEVANCE, OBJECTION.

23 THE COURT: OVERRULED.

24 YOU CAN ANSWER.

25 THE WITNESS: SMOKE FROM THE FIRE NOT FROM THE POT.

26

27 BY MR. DUSEK:

28 Q.: WHAT DID YOU EAT THAT NIGHT?

7379

1 MR. FELDMAN: VAGUE, WHICH NIGHT?

2 THE COURT: SUSTAINED.

3

4 BY MR. DUSEK:

5 Q.: 2ND OF FEBRUARY OR 1ST OF FEBRUARY?

6 A.: 1ST OF FEBRUARY? OH, I HAD SWORDFISH, I HAD

7 SHRIMP, I HAD LOBSTER, I HAD PASTA.

8 Q.: DID YOU HAVE ANYTHING AT DAD’S?

9 A.: NO.

10 Q.: DID YOU SEE KEITH STONE HAVE ANYTHING AT DAD’S?

11 A.: I DON’T RECALL.

12 Q.: DID YOU SEE RICH BRADY HAVE ANYTHING AT DAD’S?

13 A.: I DON’T RECALL.

14 Q.: SO YOU DON’T KNOW WHETHER THEY WERE HUNGRY OR NOT,

15 DO YOU?

16 A.: JUST FROM PERSONAL EXPERIENCE, WHEN YOU’RE DRINKING

17 AND MAYBE GETTING LOADED YOU DO GET HUNGRY.

18 Q.: DID YOU SEE THEM SMOKE MARIJUANA?

19 A.: NO, I DIDN’T.

20 Q.: YOU DIDN’T SEE THEM SMOKE?

21 A.: UM-HMM.

22 Q.: DID YOU SEE ‘EM DRINK?

23 A.: A DRINK. I DON’T KNOW WHAT WAS IN THE DRINK.

24 Q.: SO YOU DON’T EVEN KNOW IF IT WAS ALCOHOL, RIGHT?

25 A.: RIGHT.

26 Q.: HOW FAR AWAY WERE THEY FROM YOU?

27 A.: BEHIND ME AT THE BAR.

28 Q.: DISTANCE WISE?

7380

1 A.: FEW FEET.

2 Q.: DID YOU TALK TO ‘EM?

3 A.: NO.

4 Q.: DID YOU GET A CHANCE TO SMELL THEIR BREATH?

5 A.: YES. I WALKED UP TO THE BAR AT ONE TIME THEY WERE

6 THERE.

7 Q.: ALL RIGHT.

8 DID YOU INTENTIONALLY SMELL THEIR BREATH AT THAT

9 TIME?

10 A.: NO. IT’S NOT LIKE I WANTED TO KISS THE GUY OR

11 SOMETHING. I JUST WAS THERE AT THE BAR AND ORDERING A PEPSI,

12 DIET PEPSI.

13 Q.: AND SO YOU WEREN’T DRINKING COKE OR COFFEE AT THAT

14 TIME?

15 A.: A DIET PEPSI WAS FOR THE OTHER DRUNK THAT WAS WITH

16 ME.

17 Q.: AT THE BAR IT’S FULL OF ALCOHOL, CORRECT?

18 A.: YES.

19 Q.: AND DID YOU SMELL THEIR BREATH AT THE BAR?

20 A.: NO.

21 Q.: SO YOU DON’T EVEN KNOW IF THEIR BREATH SMELLED OF

22 ALCOHOL WHEN YOU’RE AT THE BAR WITH THEM, CORRECT?

23 A.: NO.

24 Q.: DID YOU SEE THEM FALL DOWN AT DAD’S?

25 A.: NO.

26 Q.: DID YOU WATCH ‘EM DO ANYTHING AT DAD’S?

27 A.: INTERACT LIKE EVERYBODY ELSE DOES.

28 Q.: WHAT TIME DID YOU GET THERE?

7381

1 A.: BEST OF MY RECOLLECTION, SOMETIME AROUND 10:00,

2 MAYBE A LITTLE LATER. I’M NOT A CLOCK WATCHER. I KNOW IT WAS

3 AFTER 9 O’CLOCK, THOUGH.

4 Q.: WHY DID YOU GO THERE?

5 A.: MEET WOMEN.

6 Q.: DID YOU ALSO SAY THAT YOU WENT THERE TO WATCH

7 FOOTBALL GAMES?

8 A.: ON WHAT DATE?

9 Q.: ON THE 1ST OF FEBRUARY?

10 A.: THAT IS NOT TRUE.

11 Q.: WERE YOU GIVEN A COPY OF A REPORT PREPARED BY

12 MARION PASAS?

13 A.: YES.

14 Q.: DID YOU TELL HER THAT YOU WENT TO DAD’S ON THE

15 FRIDAY, JANUARY 25TH, AND FRIDAY, FEBRUARY 1ST, 2002 TO RELAX,

16 DRINK AND WATCH FOOTBALL — WATCH A FOOTBALL GAME ON TELEVISION?

17 A.: YES, ON JANUARY 25TH I DID.

18 Q.: DID YOU SAY ALSO ON THE 1ST OF FEBRUARY, FIRST

19 PARAGRAPH OF THE REPORT —

20 A.: I DID NOT GO TO WATCH A FOOTBALL GAME ON FEBRUARY

21 1ST.

22 Q.: SO EITHER THE REPORT IS WRONG OR YOUR MEMORY IS

23 WRONG?

24 MR. FELDMAN: ARGUMENTATIVE.

25 THE COURT: SUSTAINED. REPHRASE IT.

26

27 BY MR. DUSEK:

28 Q.: DID YOU GET A CHANCE TO SEE THE REPORT?

7382

1 A.: YES, I DID.

2 Q.: DO YOU SEE IN THE REPORT WHERE IT SAID YOU WENT

3 THERE ON BOTH THOSE DAYS TO WATCH FOOTBALL?

4 A.: I SEE THAT BUT THAT’S NOT WHAT HAPPENED, JUST AS IN

5 THE DISTRICT ATTORNEY’S REPORTS THINGS AREN’T WHAT I STATED

6 EITHER.

7 Q.: I’M JUST CARING ABOUT THIS ONE RIGHT NOW.

8 A.: ALL RIGHT.

9 Q.: SO YOU DID NOT GO TO THE DAD’S ON THE 1ST TO WATCH

10 FOOTBALL, CORRECT?

11 A.: AT 10 O’CLOCK AT NIGHT?

12 Q.: AT WHATEVER TIME YOU GOT THERE?

13 A.: NO, I DID NOT.

14 Q.: WHAT TIME DID YOU GO THE WEEK BEFORE?

15 A.: I NORMALLY ARRIVE AROUND 9 O’CLOCK.

16 Q.: AT NIGHT?

17 A.: UM-HMM.

18 Q.: SO THE PREVIOUS WEEK AT JANUARY 25TH YOU WOULD HAVE

19 ARRIVED AROUND 9 O’CLOCK AT NIGHT?

20 A.: YES.

21 Q.: WHAT FOOTBALL GAME WAS BEING PLAYED AT THAT TIME?

22 A.: WHICH ONE WOULD YOU LIKE TO WATCH? THERE WAS

23 SUPERBOWL WAS COMING UP. THEY HAD THE RERUNS OF GREATEST

24 SUPERBOWLS, THE ICE BOWL, DALLAS, ICE BOWL, AND THAT’S WHAT I

25 REFERRED TO WHEN I SAID FOOTBALL. THERE’S ALWAYS SOME KIND OF

26 FOOTBALL GAME ON.

27 Q.: AND YOU WATCHED IT THAT NIGHT?

28 A.: YES. I WAS WATCHING ESPN.

7383

1 Q.: WHERE?

2 A.: IN THE SMOKING ROOM.

3 Q.: THAT’S WHERE THE TV IS?

4 A.: ONE OF THE TV’S.

5 Q.: THAT’S WHERE YOU WERE WITH BRENDA VAN DAM AND HER

6 FRIENDS?

7 A.: YES.

8 Q.: AND BRENDA VAN DAM DIDN’T APPEAR DRUNK THAT

9 OCCASION?

10 A.: NOT TO ME.

11 Q.: SHE SEEMED NORMAL?

12 A.: YES.

13 Q.: SOBER?

14 A.: YES.

15 Q.: NOT ACTING OUT?

16 A.: NO.

17 Q.: HOW LONG WERE YOU IN THE SMOKING AREA THAT TIME?

18 A.: ALL NIGHT. THAT’S MY ROOM.

19 Q.: DIDN’T EVEN GO INTO THE DRINKING AREA, THE BAR

20 AREA?

21 A.: IF I DID IT WOULD HAVE BEEN TO GET A DRINK OR GO TO

22 THE RESTROOM.

23 Q.: WHAT WERE YOU DRINKING THAT NIGHT?

24 A.: PROBABLY BAILEY’S AND COFFEE.

25 Q.: WHAT’S BAILEY’S?

26 A.: AN IRISH CREAM.

27 Q.: HOW MANY WERE YOU HAVING?

28 A.: JUST A COUPLE.

7384

1 Q.: WHAT DO YOU MEAN JUST A COUPLE?

2 A.: ENOUGH WHERE I WEREN’T — WAS NOT IMPAIRED TO DRIVE

3 HOME. SO WHATEVER LEGAL LIMITS WOULD BE, STAY UNDER THAT.

4 Q.: DO YOU KNOW WHAT THE LEGAL LIMIT IS SO YOU CAN STAY

5 UNDER IT?

6 A.: YES, I DO.

7 Q.: WHAT’S THE LEGAL LIMIT?

8 A.: ABOUT ONE DRINK PER HOUR.

9 Q.: HOW MANY HOURS WERE YOU THERE?

10 A.: FOUR TO FIVE.

11 Q.: SO HOW MANY DID YOU HAVE?

12 A.: DON’T RECALL.

13 Q.: DO YOU KNOW DAVID WESTERFIELD?

14 A.: NOT PERSONALLY.

15 Q.: HOW DO YOU KNOW HIM?

16 A.: POWAY’S A SMALL TOWN. JUST FROM SIGHT, AND AT

17 DAD’S, AND I SEE PEOPLE HERE AND THERE. YOU SIT DOWN DURING

18 FOOTBALL AND YOU MIGHT TALK TO A GUY YOU DON’T KNOW AT THE BAR

19 ABOUT A BAD PADRE PLAYER OR WHATEVER THE CASE BE. SO THAT’S

20 ABOUT IT. JUST IN MOSTLY SIGHT.

21 Q.: AT THE BARS?

22 A.: NOT AT THE BARS.

23 Q.: WHERE ELSE HAVE YOU SEEN HIM?

24 A.: AT A BAR AT ONE TIME, YES. KENTUCKY FRIED CHICKEN,

25 MCDONALDS, WHO KNOWS WHERE YOU’RE GONNA RUN INTO SOMEONE IN

26 POWAY.

27 Q.: YOU CAN SPECIFICALLY REMEMBER RUNNING INTO MR.

28 WESTERFIELD AT KENTUCKY FRIED CHICKEN AND MCDONALDS?

7385

1 A.: NO. I WAS GIVING YOU AN EXAMPLE AS TO YOU MAY SEE

2 PEOPLE IN THESE PLACES IN TOWN THAT WE GO TO.

3 Q.: AND I’M ASKING YOU WHERE HAVE YOU SEEN HIM BESIDES

4 BARS?

5 MR. FELDMAN: ARGUMENTATIVE.

6 THE COURT: OVERRULED.

7 MR. FELDMAN: TONE.

8 THE WITNESS: TOYOTA DEALER.

9

10 BY MR. DUSEK:

11 Q.: YOU REMEMBER A TOYOTA DEALER?

12 A.: POWAY TOYOTA, YES.

13 Q.: WHICH BARS HAVE YOU SEEN HIM AT?

14 A.: DAD’S.

15 Q.: HOW OFTEN?

16 A.: ONLY A COUPLE TIMES.

17 Q.: HOW OFTEN DO YOU GO THERE?

18 A.: I DON’T RECALL.

19 Q.: APPROXIMATE FOR US?

20 A.: MAYBE A COUPLE TIMES A WEEK.

21 Q.: FOR HOW LONG HAS THAT BEEN GOING ON?

22 A.: SINCE I WAS21 .

23 Q.: HOW OLD ARE YOU NOW?

24 A.: FORTY-FIVE.

25 Q.: HAVE YOU SEEN HIM AT ANY OTHER BARS?

26 A.: NO.

27 Q.: DO YOU GO TO O’HARLEY’S?

28 A.: NO.

7386

1 Q.: KAMINSKI’S?

2 A.: DAD’S IS KAMINSKI’S.

3 Q.: DID IT USED TO BE KAMINSKI’S?

4 A.: YES.

5 Q.: DID YOU SEE THE DEFENDANT AT KAMINSKI’S WHEN IT WAS

6 KAMINSKI’S?

7 A.: NOT THAT I RECALL.

8 Q.: HOW ABOUT THE OLD STONE LODGE?

9 A.: DID I GO THERE OR SEE HIM THERE?

10 Q.: SEE HIM THERE?

11 A.: NOT THAT I REMEMBER, NO.

12 Q.: YOU WERE THE DESIGNATED DRIVER THAT NIGHT?

13 A.: YES.

14 MR. FELDMAN: I’M SORRY, VAGUE AS TO WHICH NIGHT, JUDGE?

15 THE COURT: LET’S MAKE SURE ABOUT THE NIGHT, MR. DUSEK.

16

17 BY MR. DUSEK:

18 Q.: FEBRUARY 1ST YOU WERE THE DESIGNATED DRIVER?

19 A.: AND AGAIN, YES.

20 Q.: DO YOU KNOW GARRY?

21 MR. FELDMAN: SCOPE.

22 THE COURT: OVERRULED.

23 THE WITNESS: GARRY?

24

25 BY MR. DUSEK:

26 Q.: HARVEY, ONE OF THE DEFENDANT’S FRIENDS?

27 A.: GOT NO HAIR?

28 Q.: YES.

7387

1 A.: YES, I KNOW HIM.

2 Q.: WAS HE THERE THAT NIGHT ON THE 1ST?

3 A.: YES.

4 Q.: WHAT WAS HE DOING?

5 A.: I STAY AWAY FROM GARRY, SO I DON’T KNOW WHAT HE’S

6 DOING. HE’S JUST —

7 Q.: WAS HE WITH THE DEFENDANT?

8 A.: YES.

9 Q.: HOW MUCH TIME DID YOU SPEND WITH THE DEFENDANT ON

10 THE 1ST?

11 MR. BOYCE: OBJECTION, MISSTATES THE EVIDENCE.

12 THE COURT: SUSTAINED. REPHRASE.

13

14 BY MR. DUSEK:

15 Q.: DID YOU SEE THE DEFENDANT ON THE 1ST?

16 A.: YES.

17 Q.: HOW MUCH TIME DID YOU SPEND WITH HIM?

18 A.: I DIDN’T SPEND ANY TIME WITH HIM.

19 Q.: WELL, WHAT WAS HE DOING WHEN YOU SAW HIM?

20 A.: SAME THING EVERYBODY ELSE WAS DOING.

21 Q.: WHICH IS?

22 A.: HAVING A COCKTAIL, MINGLING WITH PEOPLE, PEOPLE

23 WATCHING, MAYBE LOOKING FOR WOMEN, WHO KNOWS.

24 Q.: WERE HIS EYES RED?

25 A.: DIDN’T LOOK.

26 Q.: DID YOU SMELL ANY ODOR OF MARIJUANA ABOUT HIM?

27 A.: NO.

28 Q.: DID HE APPEAR HUNGRY?

7388

1 A.: I CAN’T ANSWER THAT.

2 Q.: WAS HE EATING ANYTHING?

3 A.: NOT THAT I RECALL.

4 Q.: DID HIS CONDITION APPEAR ANY DIFFERENT THAN RICH OR

5 KEITH?

6 A.: YES.

7 Q.: HOW?

8 A.: HE WASN’T QUITE SO MINGLY, RUNNING AROUND THE PLACE

9 AND DOING THIS AND THAT, IN AND OUT THE BACK DOOR. HE’S PRETTY

10 MUCH, YOU KNOW, STATIONED IN AN AREA OR TWO ALL NIGHT.

11 Q.: SO THE DEFENDANT WAS STATIONARY WHERE?

12 A.: WELL, AT THE BAR BEHIND US.

13 Q.: BASICALLY STANDING THERE MOST OF THE EVENING?

14 A.: I DIDN’T WATCH HIM ALL EVENING, SO I COULDN’T TELL

15 YOU THAT.

16 Q.: DID YOU FORM AN OPINION THAT THE DEFENDANT WAS

17 UNDER THE INFLUENCE OF ALCOHOL AND MARIJUANA?

18 A.: I DIDN’T FORM ANY KIND OF OPINION ABOUT THE

19 DEFENDANT AT ALL.

20 Q.: NOW, TODAY, WHAT’S YOUR OPINION REGARDING THE STATE

21 OF SOBRIETY THAT EVENING?

22 MR. FELDMAN: IRRELEVANT.

23 MR. BOYCE: OBJECTION, ASKED AND ANSWERED.

24 THE COURT: OVERRULED. WE’RE TALKING ABOUT THE 1ST, SIR.

25 MR. FELDMAN: FOUNDATION.

26 THE COURT: YOU MAY — OVERRULED.

27 THE WITNESS: REPEAT THE QUESTION, PLEASE.

28 ///

7389

1 BY MR. DUSEK:

2 Q.: HOW WOULD YOU DESCRIBE THE STATE OF SOBRIETY OF THE

3 DEFENDANT THAT EVENING ON FEBRUARY 1ST?

4 A.: ON FEBRUARY 1ST? PROBABLY LIKE THE REST OF THE

5 PEOPLE THAT HAD HAD A COUPLE COCKTAILS, RELAXED, AND THAT’S

6 ABOUT IT. BUT I HONESTLY COULDN’T SAY. I DIDN’T GIVE HIM LIKE

7 A DRUNK TEST OR ANYTHING.

8 Q.: DID YOU GIVE RICH A DRUNK TEST?

9 A.: NO, BUT HIS EYES WERE EXTREMELY BLOOD SHOT, RICH

10 AND KEITH.

11 Q.: DID YOU GIVE KEITH A DRUNK TEST?

12 A.: NO.

13 Q.: HOW LONG WERE YOU AROUND KEITH?

14 A.: MAYBE 35 MINUTES AT THE BAR.

15 Q.: DID YOU SEE ANYBODY PLAYING POOL?

16 A.: THERE WAS A FEW PEOPLE PLAYING POOL.

17 Q.: WHO?

18 A.: I — WHEN I WALKED OUT TO THE ROOM I NOTICED THE

19 GIRLS BACK THERE PLAYING AND A COUPLE GUYS, GARRY, JEFF. I

20 MEAN —

21 Q.: THE DEFENDANT WASN’T PLAYING POOL, WAS HE?

22 A.: NOT THAT I SAW.

23 Q.: DID HE GO BACK TO THE POOL AREA WHERE — WHEN THEY

24 WERE PLAYING?

25 A.: IF HE DID I DIDN’T SEE HIM.

26 Q.: WHAT WERE YOU DOING?

27 A.: THEN AGAIN LOOKING FOR WOMEN.

28 Q.: AND DRINKING?

7390

1 A.: NOT DRINKING.

2 Q.: COFFEE?

3 A.: YES.

4 Q.: DID YOU SEE THE DEFENDANT DANCE?

5 A.: AT ONE POINT IN THE NIGHT, YES.

6 Q.: A GLIMPSE OF HIM DANCING?

7 A.: YES.

8 Q.: WHAT DOES A GLIMPSE MEAN?

9 A.: JUST LIKE I WOULD GLIMPSE OVER HERE AND SEE THIS

10 PERSON.

11 Q.: JUST A MATTER OF SECONDS, IS THAT RIGHT?

12 A.: PROBABLY FIVE SECONDS OR SO, YES.

13 Q.: WHAT PART OF THE EVENING?

14 A.: I CAN’T RECALL THE TIME.

15 Q.: HOW ABOUT IN THE SCHEME OF THINGS THAT NIGHT, AT

16 THE VERY BEGINNING WHEN YOU ARRIVED OR TOWARDS THE END, IN THE

17 MIDDLE, CAN YOU PLACE IT FOR US?

18 A.: NO, I CAN’T.

19 Q.: WHO WAS HE DANCING WITH?

20 A.: THE GLIMPSE I HAD CAUGHT IT WAS BRENDA.

21 Q.: LOOKED LIKE HE WAS TRYING TO PICK HER UP, DIDN’T

22 IT?

23 A.: PRETTY MUCH.

24 Q.: IN FACT, THAT’S WHAT YOU’VE TOLD THE DEFENSE

25 INVESTIGATOR AND THE DISTRICT ATTORNEY INVESTIGATOR, DIDN’T YOU?

26 A.: YES.

27 Q.: BASED UPON THAT GLIMPSE THAT YOU SAW WHAT CAUSED

28 YOU TO FORM THE OPINION THAT HE WAS TRYING TO PICK UP BRENDA VAN

7391

1 DAM?

2 A.: BECAUSE I’VE BEEN THERE, DONE THAT.

3 Q.: WHAT DID YOU SEE THAT CAUSED YOU TO FORM THAT

4 OPINION?

5 A.: MAYBE THE HUGGING, MAYBE THE, YOU KNOW, WAY THEY

6 WERE DANCING. MAYBE — COULD HAVE BEEN A LOT OF THINGS. BUT

7 NORMALLY, WHEN YOU’RE DANCING WITH A WOMAN AND YOU’RE KIND OF

8 HUGGIE, THEN SOMEONE’S GONNA GET THE OPINION THAT WELL MAYBE

9 THEY’RE GOING TO GET TOGETHER.

10 Q.: HOW MANY PEOPLE WERE DANCING AT THAT TIME?

11 A.: A LOT OF PEOPLE.

12 Q.: DID YOU FORM THE OPINION THAT THEY WERE ALL TRYING

13 TO PICK UP THEIR PARTNER?

14 A.: SOME WERE MARRIED, SOME WERE SINGLE. CAN’T SAY

15 REALLY FORMED AN OPINION ON EVERYONE BUT CERTAIN PEOPLE, YES.

16 Q.: HOW MANY OTHER PEOPLE DID YOU FORM THE OPINION WERE

17 TRYING TO PICK UP THEIR PARTNER?

18 MR. FELDMAN: RELEVANCE, YOUR HONOR.

19 THE COURT: OVERRULED.

20 THE WITNESS: EASY HALF DOZEN PEOPLE I KNOW, THEREFORE, I

21 CAN ELABORATE ON IT.

22

23 BY MR. DUSEK:

24 Q.: BASED UPON THE GLIMPSE THAT YOU GOT OF THEM —

25 A.: YES.

26 Q.: — WHAT HAPPENED AT THE END OF THE DANCE?

27 A.: DIDN’T SEE THE END OF THE DANCE.

28 Q.: DID YOU SEE THE DEFENDANT WITH BRENDA VAN DAM AT

7392

1 ANY OTHER TIME THAT EVENING?

2 A.: NOT THAT I RECALL. JUST NOT THAT I RECALL.

3 Q.: ON THE 25TH OF JANUARY, WHEN YOU WERE IN CONTACT

4 WITH BRENDA VAN DAM AND HER TWO FRIENDS IN THE SMOKING LOUNGE

5 WERE THEY WITH YOU IN THAT LOUNGE THE WHOLE TIME YOU WERE AT

6 DAD’S?

7 A.: NO, THEY WEREN’T.

8 Q.: DID YOU SEE THEM OUTSIDE IN THE BAR AREA, POOL AREA

9 OR DANCING AREA?

10 A.: NO, I DIDN’T. I WAS WATCHING A FOOTBALL GAME.

11 Q.: DID ANY OF THEM DANCE THAT EVENING ON THE 25TH?

12 A.: I CAN’T RECALL.

13 Q.: AND IT’S THE SECOND TIME AT DAD’S ON THE 1ST OF

14 FEBRUARY THAT AGAIN YOU SAW DENISE AND BRENDA — I’M SORRY —

15 DENISE AND BARBARA APPEAR TO BE MORE ACTIVE THAN BRENDA?

16 A.: YES.

17 Q.: WHERE WERE YOU WHEN YOU WERE MAKING THOSE

18 OBSERVATIONS?

19 A.: I WAS SITTING AT A TABLE WITH BARBARA ON MY LAP. I

20 THINK THAT’S ACTIVE ENOUGH.

21 Q.: ALL RIGHT. TRYING TO PICK HER UP?

22 A.: WHY NOT?

23 THE COURT: COUNSEL, IT APPEARS WE’RE NOT GOING TO

24 CONCLUDE THIS TOO SHORTLY, SO WE’RE GOING TO GO AHEAD AND TAKE

25 THE NOON RECESS.

26 LADIES AND GENTLEMEN, PLEASE REMEMBER THE

27 ADMONITION OF THE COURT NOT TO DISCUSS ANY OF THE EVIDENCE OR

28 TESTIMONY AMONG YOURSELVES OR WITH ANY OTHER PERSONS, NOR IN

7393

1 FORMING OR EXPRESSING ANY OPINIONS ON THE MATTER UNTIL IT IS

2 SUBMITTED UP TO.

3 PLEASE BE OUTSIDE THE DOOR AT 1:30. HALF PAST

4 1:00, PLEASE.

5 THE WITNESS: AM I EXCUSED?

6 THE COURT: TILL THEN. JUST A MINUTE.

7 (AT 12 :03 P.M. THE JURY WAS EXCUSED
AND THE FOLLOWING PROCEEDINGS WERE HAD:)
8

9 THE COURT: OKAY. THE RECORD SHOULD REFLECT THE JURORS

10 AND ALTERNATES HAVE LEFT THE COURTROOM.

11 MR. BLAKE, JUST BE BACK AT 1:30, OKAY?

12 THE WITNESS: YES.

13 MR. FELDMAN: YOUR HONOR, A SUBPOENA DUCES TECUM WAS

14 ISSUED.



15 THE COURT: YOU CAN GO AHEAD, MR. BLAKE. IT’S NOT ABOUT

16 YOU.

17 MR. FELDMAN: I’VE TALKED TO MR. CLARKE. THE DEFENSE HAS

18 NO OBJECTION TO RELEASING A VIDEOTAPE TO MR. CLARKE. HE’S

19 INDICATED HE CAN HAVE A COPY MADE AND THAT’S OKAY WITH US.

20 THE COURT: ALL RIGHT. SO STIPULATED?

21 MR. FELDMAN: YES.

22 THE COURT: ALL RIGHT.

23 MR. DUSEK: THERE ARE TWO WITNESSES FOR THIS AFTERNOON, A

24 GLEN SEEBRUCH AND DONNA BOE. I HAVE REPORTS FROM THEM. WE WILL

25 BE ASKING A LIMITATION ON THEIR TESTIMONY BASED UPON WHAT’S IN

26 THE REPORTS.

27 THE COURT: I WILL REVIEW THEM OVER THE NOON HOUR.

28 MR. DUSEK: THE DEFENSE HAD FILED HEARSAY STATEMENTS. WE

7394

1 HAD FILED ON THE SAME SUBJECT A MOTION. OURS WAS FILED JUNE 3RD

2 REGARDING HEARSAY STATEMENTS FROM THE DEFENDANT. PERHAPS THEY

3 BOTH OUGHT TO BE READ.

4 THE COURT: ALL RIGHT. I’LL REVIEW THOSE.

5 MR. BOYCE: WHAT WE FILED, YOUR HONOR, WAS PRETTY MUCH

6 THE ARGUMENT THAT I GAVE ON 12 50.

7 THE COURT: ALL RIGHT. THAT’S WHAT I UNDERSTAND IT TO BE

8 ANYWAY.

9 MR. DUSEK: YES.

10 THE COURT: ALL RIGHT. WE’LL BE IN RECESS TILL 1:30

11

12 (AT 12:05 P.M. THE NOON RECESS WAS
TAKEN UNTIL 1:30 P.M. OF THE SAME DAY.)
13

08073 - July 8th 2002 - Transcript of David Westerfield Trial Day 17 - afternoon 1
08071 - July 8th 2002 - Transcript of David Westerfield Trial Day 17 - morning 1