09071 -July 9th 2002 – Transcript of David Westerfield Trial Day 18 – morning 1

TRIAL DAY 18 – PART 1 morning 1
SAN DIEGO, CALIFORNIA, TUESDAY, JULY 9, 2002, 8:58 A.M.


WITNESSES:
Mark Tallman (police detective, interviewed Raymond, camp host, about Westerfield overpaying for the RV at Silver Strand)
Frank Gerbac (police officer, interviewed Denise Kemal)


–O0O–
(THE FOLLOWING OCCURRED OUT OF THE PRESENCE OF THE JURY:
(PROCEEDINGS NOT PART OF THE PUBLIC RECORD.)

(END OF PROCEEDINGS OUT OF THE PRESENCE OF THE JURY.)

THE COURT: GOOD MORNING, LADIES AND GENTLEMEN. WELCOME BACK.
JUROR 12, THANK YOU VERY MUCH FOR CALLING IN ADVANCE AND LETTING US KNOW YOUR SITUATION.
IN AN EFFORT TO TAKE MY MIND OFF THE TRIAL LAST NIGHT I HAD TO DO SOME CHANNEL SURFING SINCE THERE WASN’T ANY BASEBALL OR ANYTHING ELSE ON. AND I HIT THIS MOVIE THAT IS AN OLD CLASSIC CALLED "16 CANDLES." IT’S A GREAT MOVIE, AND IT TAKES YOUR MIND OFF OF JUST ABOUT EVERYTHING, INCLUDING REALITY. BUT I WAS DRAWN BACK AT 9:00 O’CLOCK BECAUSE ONE OF MY DUTIES AS YOUR SHEPHERD IS TO WATCH THE SHOWS THAT START RECAPPING WHAT WE’RE DOING. AND AS I WAS WATCHING IT LAST NIGHT, I THOUGHT TO MYSELF THIS IS PROBABLY A GREAT SEGUE FOR ME TO REMIND YOU ONCE AGAIN OF THE NEED TO SELF-POLICE.
THERE IS SO MUCH OUT THERE RIGHT NOW THAT IS ALMOST INCONCEIVABLE WHERE IT’S COMING FROM, WHAT PEOPLE BELIEVE, WHAT THEY THINK. SHORT OF JUST ABOUT, YOU KNOW, THE RAG NEWSPAPERS IN THE GROCERY STORES, THERE ARE ALL KINDS OF THEORIES OUT THERE. IT’S VERY, VERY IMPORTANT, LADIES AND GENTLEMEN, THAT YOU JUST CONTINUE TO AVOID AT ALL COSTS SYNOPSIS SHOWS, CALL-IN SHOWS, READING THE ARTICLES. THAT’S THE ONLY WAY WE’RE GOING TO BE ABLE TO GET A VERDICT FROM TWELVE INDIVIDUALS THAT HEAR AND SEE JUST THE EVIDENCE IN THIS COURTROOM. SO I’M JUST THROWING THAT OUT TO REMIND YOU.
ALSO, THE LAWYERS HAVE DONE THE BEST JOB THEY CAN IN ANTICIPATING HOW MANY WITNESSES ARE GOING TO BE AVAILABLE BEFORE THE WEEK OFF NEXT WEEK. IT APPEARS AT THIS POINT IN TIME THAT YOU MAY STILL HAVE THURSDAY OFF. AS A MATTER OF FACT, THE ODDS LOOK PRETTY GOOD THAT YOU WILL. NOT BECAUSE OF THE JUROR’S CONFLICT BUT BECAUSE OF THE FACT THAT ALL WITNESSES WILL PROBABLY BE USED UP THAT WILL BE AVAILABLE THIS WEEK. SO FOR THOSE OF YOU THAT NEED TO NOTIFY AN EMPLOYER, AT THIS POINT IN TIME I THINK YOU CAN HAVE COMPLETE CONFIDENCE THAT YOU WILL BE ABLE TO GO TO WORK ON THURSDAY. SO I’M JUST BRINGING THAT TO YOUR ATTENTION FOR PLANNING PURPOSES.
OKAY. MR. FELDMAN.
MR. FELDMAN: WE HAVE HEATHER MACK, BUT I THINK SHE —
THE COURT: THAT’S RIGHT. MISS MACK IS ON THE STAND. THAT’S CORRECT.
THE BAILIFF: YOUR HONOR, SHE IS NOT IN THE HALLWAY. WE CAN CHECK THE RESTROOM.
THE COURT: DO YOU HAVE SOMEBODY —
MR. FELDMAN: YES. WE HAVE OTHER WITNESSES, YOUR HONOR.
THE BAILIFF: SOMEONE ELSE?
MR. FELDMAN: YOUR HONOR, WHAT —
THE COURT: IF SHE IS THERE, WE WILL RECALL HER.
(PAUSE.)
THE BAILIFF: WE HAVE SOMEBODY CHECKING RIGHT NOW.
(JUROR NUMBER 3 RAISED HIS NOTEBOOK.)
THE COURT: YOU NEED ANOTHER BOOK? HE’S PERSONALIZING IT TO YOUR SEAT NUMBER.
THE BAILIFF: YOUR HONOR, SHE IS NOT OUT THERE AND SHE IS NOT IN THE RESTROOM.
THE COURT: WILL YOU NEED ANY ASSISTANCE IN GETTING HER HERE?
MR. FELDMAN: OUR INVESTIGATOR IS TRYING TO REACH HER.
THE COURT: ALL RIGHT. LET’S JUST CALL ANOTHER WITNESS ON THE ASSUMPTION SHE’S COOPERATING.
MR. FELDMAN: MARK TALLMAN, PLEASE.
MR. DUSEK: THIS ONE SHOULD NOT BE PHOTOGRAPHED.
THE COURT: ALL RIGHT. LIVE AND STILL, NO PHOTOGRAPHY.

MARK TALLMAN,
CALLED AS A WITNESS BY THE DEFENDANT, HAVING BEEN DULY SWORN, TESTIFIED AS FOLLOWS:
THE CLERK: WILL YOU PLEASE STATE YOUR NAME AND SPELL IT FOR THE RECORD.
THE WITNESS: MARK WITH A K. AND LAST NAME TALLMAN,
T-A-L-L-M-A-N.
MR. FELDMAN: PROCEED, YOUR HONOR?
THE COURT: YES.

DIRECT EXAMINATION
BY MR. FELDMAN
Q.: GOOD MORNING, SIR.
A.: GOOD MORNING.
Q.: CAN YOU TELL US, PLEASE, WHAT IS YOUR OCCUPATION.
A.: I’M A POLICE DETECTIVE WITH THE SAN DIEGO POLICE DEPARTMENT SPECIAL INVESTIGATIONS UNIT.
Q.: AND, SIR, HOW LONG HAVE YOU BEEN SO EMPLOYED?
A.: AS A POLICE OFFICER WITH THE CITY OF SAN DIEGO FOR APPROXIMATELY FIFTEEN YEARS.
Q.: I WOULD LIKE TO DIRECT YOUR ATTENTION TO APPROXIMATELY THE 5TH OF FEBRUARY, THIS YEAR. WERE YOU WORKING IN CONNECTION WITH THE CASE OF TRYING TO LOCATE DANIELLE VAN DAM?
A.: YES, I WAS.
Q.: DID YOU HAVE OCCASION TO SPEAK WITH AN INDIVIDUAL WHOSE NAME WAS RAYMOND?
A.: YES, SIR.
Q.: DONALD RAYMOND?
A.: YES, SIR.
Q.: DID YOU GO TO THE SILVER STRAND FOR THE PURPOSE OF SPEAKING WITH HIM?
A.: YES, I DID.
Q.: WITH REGARD TO MR. RAYMOND, DID YOU SHOW HIM ANY PHOTOS OR WERE YOU AWARE AS TO WHETHER OR NOT ANY PHOTOS OF HIM — OF MR. WESTERFIELD WERE SHOWN TO HIM?
A.: YES, SIR. I DID SHOW HIM PHOTOS OF MR. WESTERFIELD AND THE VICTIM DANIELLE VAN DAM.
Q.: ALL RIGHT. HOW MANY PHOTOS OF MR. WESTERFIELD DID YOU SHOW HIM, IF YOU RECALL, SIR?
A.: MAYBE TWO.
Q.: AND YOU ASKED MR. RAYMOND WHETHER OR NOT HE RECOGNIZED MR. WESTERFIELD AS THE INDIVIDUAL WHO HAD CONTACTED HIM IN CONNECTION WITH AN OVERPAYMENT, IS THAT RIGHT?
A.: THAT WAS PART OF OUR CONVERSATION, AND, YES, I DID ASK HIM THAT QUESTION.
Q.: AND HE SPECIFICALLY INDICATED TO YOU HE DID NOT THINK WESTERFIELD WAS THE SAME PERSON WHO HAD MADE THE OVERPAYMENT, IS THAT RIGHT?
A.: CORRECT. HE SAID THAT THE PICTURE OF MR. WESTERFIELD DID NOT LOOK LIKE THE PERSON WHO INQUIRED ABOUT THE OVERPAYMENT.
Q.: SIR, YOU PREPARED A REPORT IN CONNECTION WITH YOUR ACTIVITIES, IS THAT RIGHT?
A.: YES, SIR.
Q.: YOU PREPARED THE REPORT AT THE TIME WHEN THE EVENTS WERE FRESHER IN YOUR MIND THAN THEY ARE TODAY?
A.: YES, SIR.
Q.: YOU WERE TAKING CONTEMPORANEOUS NOTES AS YOU WERE SPEAKING WITH THIS GENTLEMAN, WERE YOU?
A.: YES, SIR.
Q.: YOU INDICATED IN YOUR REPORT THAT HE STATED HE DID NOT THINK WESTERFIELD WAS THE SAME PERSON, CORRECT?
A.: CORRECT.
MR. FELDMAN: NO FURTHER QUESTIONS. THANK YOU.
THE COURT: ALL RIGHT. CROSS-EXAMINATION.

CROSS-EXAMINATION BY MR. DUSEK:
Q.: WHEN DID YOU GO DOWN THERE, SIR?
A.: IT WAS FEBRUARY 5TH OF THIS YEAR AT APPROXIMATELY 9:25 IN THE MORNING.
Q.: AND WERE YOU GIVEN AN ASSIGNMENT WHEN YOU WENT DOWN THERE?
A.: YES, SIR.
Q.: WHAT WERE YOU SUPPOSED TO DO?
A.: TO CONDUCT INTERVIEWS OF PERSONS WHO WERE PRESENTLY AT THE STRAND TO SEE IF THEY HAD ANY KNOWLEDGE OF MR. WESTERFIELD, DANIELLE VAN DAM, AND/OR HIS MOTOR HOME THAT HAD ALLEGEDLY BEEN AT THAT LOCATION DURING THAT WEEKEND PREVIOUS.
Q.: AND YOU WERE LOOKING FOR CAMPERS THERE OR PEOPLE WHO WERE WORKING THERE PRIMARILY?
A.: CAMPERS WERE OUR PRIMARY FUNCTION. MR. RAYMOND WAS A CAMP HOST BUT NOT AN EMPLOYEE, JUST AN ASSIGNED CAMP HOST FOR THAT PARTICULAR PERIOD.
Q.: AND TO YOUR KNOWLEDGE WERE YOU THE FIRST ONE TO GO DOWN THERE TO INTERVIEW HIM?
A.: NO, SIR. I WENT DOWN WITH SEVERAL OTHERS.
Q.: I’M SORRY. THE FIRST AT LEAST BATCH OF LAW ENFORCEMENT OFFICERS TO GO DOWN THERE.
A.: YES, SIR.
Q.: AND THERE WERE FOLLOWUP INTERVIEWS DONE LATER?
A.: I BELIEVE SO.
Q.: DO YOU KNOW IF MR. RAYMOND WAS INTERVIEWED LATER?
A.: I BELIEVE HE WAS.
Q.: WHAT DID MR. RAYMOND TELL YOU REGARDING HIS KNOWLEDGE OF THIS CASE?
A.: WELL, HE DID NOT RECOGNIZE THE PHOTO OF DAVID WESTERFIELD OR OF DANIELLE VAN DAM. HOWEVER, HE DID GIVE ME SOME INFORMATION ABOUT A PERSON WHO WAS PARKED IN SPACE 66 WHICH WOULD HAVE BEEN —
MR. BOYCE: OBJECTION. SCOPE.
THE COURT: OVERRULED.
YOU MAY COMPLETE YOUR ANSWER, DETECTIVE.
THE WITNESS: HE PROVIDED INFORMATION ABOUT A CAMPER WHO HAD BEEN PARKED IN SPACE 66 WHICH WOULD HAVE BEEN THE CLOSEST MOTOR HOME TO SPACE 72, WHICH IS WHERE MR. WESTERFIELD’S MOTOR HOME WAS ALLEGEDLY PARKED, AND TOLD ME THAT THAT PERSON —
MR. BOYCE: OBJECTION. HEARSAY.
THE COURT: SUSTAINED AT THIS POINT IN TIME. HE’S COMPLETED HIS ANSWER.
BY MR. DUSEK:
Q.: DID HE GIVE YOU THE NAME OF THOSE PEOPLE IN 66?
A.: NO, SIR. HE GAVE ME A —
MR. FELDMAN: THE QUESTION IS ANSWERED. NO QUESTION PENDING.
THE COURT: SUSTAINED.
NEXT QUESTION.
BY MR. DUSEK:
Q.: DID HE GIVE YOU A MEANS OF FINDING THOSE PEOPLE?
A.: YES, SIR. A VEHICLE PLATE.
Q.: AND DID YOU FIND THOSE PEOPLE?
A.: YES, I DID.
Q.: WHAT WERE THEIR NAMES?
MR. FELDMAN: SCOPE.
THE COURT: OVERRULED.
MR. BOYCE: RELEVANCE.
THE COURT: OVERRULED.
THE WITNESS: I WOULD HAVE TO REFER TO MY PAPERWORK TO RECALL THE LAST NAME.
BY MR. DUSEK:
Q.: IS IT ROGERS?
A.: YES, IT WAS.
Q.: JIMMY AND JOYCE ROGERS?
A.: CORRECT.
Q.: DID YOU SPEAK WITH THEM?
A.: YES, I DID.
Q.: I THINK YOU INDICATED TO DEFENSE COUNSEL HERE THAT AT LEAST MR. RAYMOND WAS ABLE TO DESCRIBE SOME CONTACT HE HAD WITH SOMEBODY REGARDING AN OVERPAYMENT.
A.: YES, SIR.
Q.: WHAT DID HE TELL YOU?
A.: HE SAID THAT AN INDIVIDUAL —
MR. FELDMAN: OBJECTION. SCOPE AND HEARSAY.
THE COURT: OVERRULED.
THE WITNESS: HE SAID THAT AN INDIVIDUAL DID CONTACT HIM AT THE CAMP HOST BUILDING AND IMPLIED THAT A PARK RANGER HAD TALKED TO HIM ABOUT AN OVERPAYMENT. AS THE CAMP HOST, MR. RAYMOND TOLD THE PERSON TO KEEP THE MONEY. AND THAT WAS PRETTY MUCH THE END OF HIS CONVERSATION WITH THAT INDIVIDUAL.
BY MR. DUSEK:
Q.: AND YOU SHOWED HIM A PICTURE OF DANIELLE VAN DAM
A.: YES, I DID.
Q.: DO YOU HAVE THAT PICTURE?
A.: YES, I DO.
Q.: WOULD YOU BRING IT OUT, PLEASE.
MR. FELDMAN: YOUR HONOR, OBJECTION. RELEVANCE. SCOPE.
THE COURT: OVERRULED. OVERRULED.
THE WITNESS: IT’S RIGHT HERE.
MR. DUSEK: YOUR HONOR, COULD WE HAVE THIS MARKED AS COURT’S EXHIBIT NEXT IN ORDER.
THE COURT: ALL RIGHT. 161.
(PHOTOGRAPH MARKED TRIAL EXHIBIT NUMBER 161 FOR
IDENTIFICATION.)
MR. DUSEK: NOW BE LOOKING FOR THE PICTURES YOU SHOWED HIM OF MR. WESTERFIELD.
THE WITNESS: YES, SIR.
MR. FELDMAN: YOUR HONOR, I’M SORRY. IS THIS 161?
THE COURT: 161.
MR. FELDMAN: THANK YOU.
/ / /
BY MR. DUSEK:
Q.: LET ME SHOW YOU EXHIBIT 161, DETECTIVE. WAS THAT THE PHOTOGRAPH THAT YOU SHOWED MR. RAYMOND?
A.: YES, IT IS.
Q.: BLACK AND WHITE?
A.: YES.
Q.: AND YOU SAID HE HAD NOT SEEN HER BEFORE.
A.: HE DID NOT RECALL SEEING HER AT THE STRAND.
Q.: I THINK YOU TOLD COUNSEL THAT YOU SHOWED HIM A PICTURE OF MR. WESTERFIELD. DO YOU HAVE THOSE PICTURES WITH YOU?
A.: YES, I DO.
Q.: COULD YOU BRING THEM OUT, PLEASE.
A.: THEY ARE RIGHT HERE. THERE’S A TOTAL OF THREE, TWO OF WHICH ARE BLACK AND WHITE, PHOTOCOPIED, AND THE SAME TWO PHOTOS WHICH ARE IN COLOR FROM A DIGITAL CAMERA PRINTOUT.
Q.: I WANT TO KNOW WHICH ONES YOU SHOWED HIM, IF YOU COULD HAND ME THE ONES THAT YOU ACTUALLY SHOWED MR. RAYMOND.
A.: I SHOWED HIM THESE PHOTOS.
MR. DUSEK: ALL RIGHT.
THE COURT: STAPLE THOSE ALL TOGETHER. AND DO YOU WANT THEM MARKED?
MR. DUSEK: YES, YOUR HONOR.
THE COURT: 162.
(FOUR PHOTOGRAPHS MARKED COLLECTIVELY TRIAL EXHIBIT
NUMBER 162 FOR IDENTIFICATION.)
MR. DUSEK: THEY ARE LOOKS LIKE ONE COLOR HEADSHOT OF MR. WESTERFIELD WITH HIS EYES CLOSED, ANOTHER COLORED HEADSHOT WITH HIS EYES OPEN, AND BLACK-AND-WHITE XEROX OF THE TWO COLORS.
THE COURT: ALL RIGHT.
MR. DUSEK: IT’S 162.
MR. FELDMAN: THANK YOU.
BY MR. DUSEK:
Q.: LET ME SHOW YOU 162, DETECTIVE, PHOTOGRAPHS OF THE DEFENDANT. WERE THOSE THE ONES THAT YOU SHOWED MR. RAYMOND?
A.: YES, SIR.
Q.: DID YOU USE THE NAME DAVID WESTERFIELD WHEN YOU ASKED HIM?
A.: I DON’T RECALL USING THE NAME OF DAVID WESTERFIELD. I BELIEVE I ASKED HIM IF HE RECOGNIZED THE PERSON IN THE PHOTOGRAPHS.
Q.: AND YOU GOT DOWN THERE WHEN?
A.: FEBRUARY 5TH AT APPROXIMATELY 9:25 IN THE MORNING.
Q.: DO YOU KNOW IF THERE HAD BEEN ANY MEDIA COVERAGE OF MR. WESTERFIELD ON T.V. BEFORE YOU WENT DOWN THERE?
A.: I BELIEVE THERE HAD BEEN.
Q.: DID YOU SUGGEST THAT A FOLLOWUP INTERVIEW BE DONE WITH MR. RAYMOND?
MR. FELDMAN: OBJECTION. RELEVANCE.
THE COURT: OVERRULED.
YOU CAN JUST SAY YES OR NO.
THE WITNESS: NO, SIR.
MR. DUSEK: ALL RIGHT.
BY MR. DUSEK:
Q.: AND ONE WAS DONE?
MR. FELDMAN: OBJECTION. IRRELEVANT.
THE COURT: OVERRULED.
IT’S BEEN ASKED AND ANSWERED.
MR. FELDMAN: OKAY. THANK YOU. ASKED AND ANSWERED. OBJECTION.
MR. DUSEK: THANK YOU, SIR.
NOTHING FURTHER.
THE COURT: ANYTHING FURTHER?
MR. FELDMAN: JUST BRIEFLY.

REDIRECT EXAMINATION BY MR. FELDMAN
Q.: SIR, WITH REGARD TO THE PHOTOS THAT ARE NOW MARKED 162, DID YOU SHOW THE PHOTOS TO MR. RAYMOND INDIVIDUALLY?
A.: I DON’T RECALL EXACTLY THE ORDER I SHOWED THE PHOTOS. I RECALL SHOWING A PICTURE OF DANIELLE VAN DAM SEPARATELY TO THE PHOTOS OF MR. WESTERFIELD.
Q.: OKAY. HOW MUCH TIME DID THE MAN SPEND LOOKING AT THE PHOTO YOU SHOWED HIM OF DANIELLE VAN DAM IF YOU RECALL, SIR?
A.: APPROXIMATELY A MINUTE MAYBE.
Q.: ALL RIGHT.
AND HOW MUCH TIME DID THE MAN SPEND — WELL, WITH REGARD TO THE PACKET THAT’S 162 THAT WE DISCUSSED ARE TWO COLOR PHOTOS, AND I GUESS THE XEROX OF — THEY ARE THE SAME, AREN’T THEY?
A.: YES, THEY ARE, SIR.
Q.: WITH REGARD TO THESE PHOTOS, MEANING 162, DID YOU SHOW THEM INDIVIDUALLY TO MR. RAYMOND?
A.: I DON’T RECALL.
Q.: HOW MUCH TIME WOULD YOU ESTIMATE MR. RAYMOND SPENT LOOKING AT THESE PHOTOS?
A.: PREVIOUSLY STATED APPROXIMATELY A MINUTE. IT WAS A SHORT PERIOD OF TIME.
Q.: YOU TOLD ME A MINUTE FOR DANIELLE VAN DAM, AND I WAS ASKING YOU ABOUT MR. WESTERFIELD. SO YOU THINK ABOUT A MINUTE?
A.: I SHOWED THEM — I SHOWED THE PHOTOS SEPARATELY AND APPROXIMATELY A MINUTE EACH.
Q.: AND YOU MADE SURE THAT THE MAN HAD THE OPPORTUNITY TO REVIEW THE PHOTOS, RIGHT?
A.: YES, SIR.
Q.: YOU WANTED TO BE SURE THAT HE HAD A GOOD LOOK AT THE PHOTOS, RIGHT?
A.: YES, SIR.
Q.: AND THOSE PHOTOGRAPHS, THEY WERE — WHERE DID YOU GET THOSE PHOTOS? WERE THEY TAKEN OFF THE T.V.?
A.: THESE PARTICULAR PHOTOGRAPHS WERE, AT LEAST OF MR. WESTERFIELD, —
Q.: YES.
A.: — WERE PROVIDED TO ME BY DETECTIVE DAVE MORRIS I BELIEVE.
Q.: SO YOU DON’T KNOW WHETHER OR NOT THOSE WERE THE PHOTOS, FOR INSTANCE, OF THE MARK MATTHEWS INTERVIEW THAT HAD AIRED THE DAY BEFORE?
A.: TO THE BEST OF MY KNOWLEDGE THESE ARE PHOTOS DETECTIVE DAVE MORRIS TOOK OF MR. WESTERFIELD.
Q.: ALL RIGHT.
SO THEY WERE CONTEMPORARY, IN OTHER WORDS.
A.: YES.
Q.: AND WHEN YOU SAY — DO YOU KNOW WHEN DETECTIVE MORRIS TOOK THE PHOTOS THAT ARE 162?
A.: I’M NOT EXACTLY SURE. I THINK IT WAS ON MONDAY, FEBRUARY 4TH, BUT I DON’T KNOW WHAT TIME. IT WAS AFTER WE MADE CONTACT WITH MR. WESTERFIELD AT HIS HOME.
Q.: ALL RIGHT.
AND YOU’RE TELLING US, ARE YOU, THAT YOU DON’T HAVE A SPECIFIC RECOLLECTION AS TO WHETHER OR NOT YOU TOLD MR. RAYMOND THAT THESE PHOTOS WERE OF DAVID WESTERFIELD AND DANIELLE VAN DAM?
A.: I DON’T RECALL USING THEIR NAMES SPECIFICALLY. I MAY HAVE. BUT I DON’T RECALL.
Q.: OKAY.
SO BY YOUR ANSWER YOU’RE SAYING IT COULD HAVE HAPPENED, COULD NOT HAVE HAPPENED, YOU JUST DON’T REMEMBER?
A.: CORRECT.
Q.: BUT IT WAS, NEVERTHELESS, YOU MADE IT EXPLICITLY CLEAR THAT THIS WAS A SERIOUS INVESTIGATION YOU WERE ENGAGED IN, IS THAT RIGHT?
A.: YES, SIR.
Q.: AND THAT IT WAS IMPORTANT THAT THE MAN TOOK WHATEVER TIME HE NEEDED TO TAKE TO IDENTIFY OR NOT IDENTIFY THE PERSONS THAT YOU WERE SHOWING HIM, RIGHT?
A.: YES, SIR.
Q.: AND HE SAID HE DIDN’T KNOW EITHER OF THOSE FOLKS, HE HAD NOT SEEN THEM BEFORE?
A.: HE DID NOT RECALL SEEING EITHER OF THEM BEFORE, YES.
MR. FELDMAN: NO FURTHER QUESTIONS. THANK YOU.
THE COURT: ANYTHING FURTHER?

RECROSS-EXAMINATION
BY MR. DUSEK:
Q.: WHEN YOU ASKED HIM DETAILS ABOUT HIS — THE MONEY SITUATION, RETURNING THE MONEY DOWN THERE, DID HE TELL YOU HOW MANY TIMES THAT WEEKEND SOMEBODY HAD BEEN OVERCHARGED AND RETURNED MONEY
MR. FELDMAN: YOUR HONOR, OBJECTION. SCOPE.
THE COURT: OVERRULED.
YOU MAY ANSWER.
THE WITNESS: NO, SIR.
BY MR. DUSEK:
Q.: HOW MANY OF THEM DID HE DESCRIBE FOR YOU?
A.: WE ONLY SPOKE OF ONE OVERPAYMENT SCENARIO, AND THAT WAS ONLY OF ONE, HE SPOKE OF ONE OVERPAYMENT SCENARIO.
Q.: FROM THAT WEEKEND?
A.: YES, SIR.
MR. DUSEK: THANK YOU, SIR.
THE COURT: OKAY.
IS THE DETECTIVE TO BE SUBJECT TO RECALL?
MR. FELDMAN: PLEASE. YES.
THE COURT: ALL RIGHT.
DETECTIVE, YOU’RE FREE TO LEAVE AT THIS TIME, BUT IT WILL BE SUBJECT TO RECALL. PLEASE REMEMBER YOU’RE UNDER AN ADMONITION NOT TO DISCUSS YOUR TESTIMONY WITH ANYONE UNTIL THE MATTER IS CONCLUDED, OTHER THAN AS IT RELATES TO YOUR PROFESSIONAL DUTIES.
YOU HAVE JUST STUCK TWO COURT EXHIBITS IN THAT FILE. SO YOU WANT TO MAKE SURE THAT WE DON’T LOSE THOSE.
THE WITNESS: I APOLOGIZE.
THE COURT: THAT’S JUST FINE. YOU CAN HAND THEM TO THE BAILIFF ON YOUR WAY OUT SO WE DON’T LOSE THOSE.
(THE WITNESS WAS EXCUSED.)
THE COURT: OKAY. IS MISS MACK NOW WITH US?
THE BAILIFF: YES.
THE COURT: PLEASE INVITE HER IN.

HEATHER MACK,
CALLED AS A WITNESS BY THE DEFENDANT, PREVIOUSLY HAVING BEEN DULY SWORN, TESTIFIED AS FOLLOWS:
THE COURT: THE RECORD SHOULD REFLECT MISS MACK IS NOW BACK ON THE WITNESS STAND.
ALL RIGHT. MR. DUSEK.

CROSS-EXAMINATION, CONTINUED
BY MR. DUSEK
Q.: MISS MACK, YOU TOLD US YESTERDAY THAT YOU WERE A SECURITY OFFICER AT THE CAYS. CORRECT?
A.: YES.
Q.: WHAT TYPE OF TRAINING HAVE YOU HAD TO BECOME A SECURITY OFFICER?
A.: THE GUARD CARD TEST. TO GET A GUARD CARD.
Q.: WHAT’S THAT?
A.: YOU HAVE TO HAVE A GUARD CARD TO DO SECURITY.
Q.: WHAT DO YOU HAVE TO DO TO TAKE THE TEST?
A.: A TEST.
Q.: ABOUT WHAT?
A.: SECURITY.
Q.: DO YOU HAVE TO DO A PHYSICAL TEST?
A.: NO.
Q.: DO YOU HAVE TO DO A —
A.: A WRITTEN TEST.
Q.: ABOUT WHAT, WHAT TOPICS?
A.: ABOUT SECURITY. I DON’T KNOW. I DON’T REMEMBER. I TOOK IT LIKE FOUR YEARS AGO.
Q.: WHO PROVIDES THE TEST?
A.: WELL, HAYES SECURITY DID WHEN I TOOK IT.
Q.: AND IS THAT WHO YOU WORK FOR?
A.: I WORKED FOR THEM, YES.
Q.: BUT YOU DON’T WORK FOR THEM ANY LONGER?
A.: NO.
Q.: HOW ABOUT TO GET THE JOB AT THE CAYS, DID YOU HAVE TO SHOW ANY SORT OF QUALIFICATIONS AS A SECURITY OFFICER?
A.: MY CARD.
Q.: WE WERE TALKING YESTERDAY ABOUT THE TIME WHEN YOU SAW THIS VEHICLE. I WOULD LIKE TO SHOW YOU A NEWSPAPER ARTICLE OR AT LEAST A WEATHER PAGE THAT’S BEEN MARKED AS COURT’S EXHIBIT 55 AND DIRECT YOUR ATTENTION TO THE UPPER RIGHT-HAND CORNER WHERE IT SHOWS THE SUNSET HOUR. DO YOU SEE THAT?
A.: YES.
Q.: AND THAT SUNSET HOUR ON SUNDAY, FEBRUARY 3RD, WAS WHEN?
A.: THE DAY HE CAME.
Q.: WHAT TIME DID THE SUN GO DOWN ON FEBRUARY 3RD?
A.: 5:23.
Q.: NOW, DOES THAT REFRESH YOUR MEMORY —
A.: NO.
Q.: — AS TO TELLING MARION PASAS THAT THE MOTOR HOME WAS COMING THERE AS IT WAS JUST GETTING DARK?
A.: NO.
Q.: WHERE WERE YOU WHEN YOU SAW THE MOTOR HOME?
A.: STANDING AT THE KIOSK.
Q.: WHO ELSE WAS THERE?
A.: SANTIAGO.
Q.: WHAT WERE YOU DOING THERE?
A.: I WAS RELIEVING HIM FOR BREAK.
Q.: HOW LONG DID YOU REMAIN AT THE KIOSK?
A.: ABOUT FIFTEEN MINUTES.
Q.: FIFTEEN MINUTES?
A.: (THE WITNESS NODDED HER HEAD.)
YES.
Q.: DID YOU TELL MARION PASAS THAT YOU REMAINED AT THE KIOSK FOR AN HOUR?
A.: NO. SHE CORRECTED THAT.
Q.: LET ME SHOW YOU WHAT’S BEEN PROVIDED TO US AS A REPORT ABOUT YOU APPARENTLY FROM MISS PASAS. I DIRECT YOUR ATTENTION TO THE LAST PARAGRAPH.
A.: SHE MADE A MISTAKE THERE. SHE WAS SUPPOSED TO CORRECT THAT.
Q.: THIS IS THE ONE THAT WE WERE PROVIDED. DID YOU TELL HER THAT YOU WERE THERE FOR AN HOUR?
A.: NO. NO.
Q.: AND YOU THINK THERE’S A CORRECTION SOME PLACE?
A.: YES.
Q.: HOW DO YOU KNOW?
A.: BECAUSE I TALKED TO HER ABOUT THAT. IT WAS ONLY FIFTEEN MINUTES. IT WASN’T AN HOUR.
Q.: DO YOU KNOW IF SHE WROTE IT DOWN?
A.: ON HER PIECE OF PAPER SHE DID.
Q.: WHEN DID YOU CORRECT IT?
A.: WHEN I WAS AT HER OFFICE.
Q.: WHEN WAS THAT?
A.: I DON’T REMEMBER. A WEEK, TWO AGO.
Q.: DID YOU CORRECT ANYTHING ELSE ON THE REPORT?
A.: NO.
Q.: SO YOU DID NOT CORRECT THE PORTION WHERE IT SAYS THAT YOU RECALLED THAT IT WAS GETTING DARK WHEN THE MOTOR HOME CAME IN?
A.: NO. BUT I DON’T KNOW WHAT TIME IT WAS.
Q.: WELL, THAT IS ALSO ON THE REPORT, CORRECT?
A.: YES.
Q.: AND SHE GAVE YOU A CHANCE, ACCORDING TO YOU, TO CORRECT ANY ERRORS IN THE REPORT.
A.: YES. AND I TOLD HER I DIDN’T KNOW WHAT TIME IT WAS AT.
Q.: DID YOU TELL HER TO CORRECT THAT THE REPORT SAID IT WAS GETTING DARK?
A.: I DON’T REMEMBER.
Q.: JUST GENERALLY WHAT DO YOU MEAN WHEN IT’S JUST GETTING DARK, IF YOU ARE TO USE THAT PHRASE?
A.: I DON’T KNOW. IT’S JUST GETTING DARK.
MR. BOYCE: OBJECTION. VAGUE.
THE WITNESS: IT’S STILL LIGHT OUT.
THE COURT: ALL RIGHT. SHE’S ANSWERED THE QUESTION.
BY MR. DUSEK:
Q.: AND IF THE SUN WERE TO GO DOWN AT 5:23, JUST GETTING DARK, USING YOUR DEFINITION, WOULD BE AT ABOUT THAT TIME OF DAY?
MR. BOYCE: OBJECTION. MISSTATES THE IMPEACHMENT OF THE WITNESS.
THE COURT: OVERRULED.
YOU CAN ANSWER THAT.
THE WITNESS: WHAT’S THE QUESTION?
BY MR. DUSEK:
Q.: IF THE SUN WERE TO GO DOWN AT 5:23 ON A DAY, AND TO USE YOUR DEFINITION OF JUST GETTING DARK, —
A.: YES.
Q.: — DOES THAT MEAN AROUND —
A.: YES.
Q.: — 5:23 OR SO IN THE DAY?
A.: YES.
MR. BOYCE: OBJECTION. VAGUE AS TO WHEN.
THE COURT: OVERRULED.
THE ANSWER WILL STAND.
BY MR. DUSEK:
Q.: YOU WOULD NOT USE THAT PHRASE TO MEAN WHEN IT IS COMPLETELY DARK, WOULD YOU?
A.: YES. BUT I DIDN’T USE THE PHRASE.
Q.: THERE ARE SECURITY OFFICERS ASIDE FROM YOURSELF IN THE CAYS, AREN’T THERE?
A.: YES.
Q.: WHAT DO THEY DO?
A.: THERE’S TWO ON — TWO ON PER SHIFT. ONE SITS IN THE FRONT, AND ONE DRIVES AROUND.
Q.: SO ON THE OCCASION YOU’RE TALKING ABOUT, ON YOUR SHIFT, YOU AND SANTIAGO WERE THE TWO SECURITY OFFICERS?
A.: YES.
Q.: HOW DO YOU DECIDE WHO STAYS IN THE KIOSK AND WHO DRIVES AROUND?
A.: DON TELLS US.
Q.: AND HE IS?
A.: MY SUPERVISOR.
Q.: AND THE DAY YOU’RE TALKING ABOUT, WHOSE JOB WAS IT TO DRIVE AROUND?
A.: MINE.
Q.: WHAT DO YOU DO WHEN YOU DRIVE AROUND?
A.: I DRIVE AROUND THE CAYS. I ANSWER COMPLAINTS. WHEN SOMEBODY CALLS THE KIOSK AND MAKES A COMPLAINT, I GO TO THE HOUSE.
Q.: YOU LOOK FOR ILLEGALLY PARKED VEHICLES?
A.: NO.
Q.: WHAT IF THEY’RE SUSPICIOUS?
A.: THEN I GUESS.
Q.: YOU DON’T LIKE TO DO THAT, DO YOU?
A.: NO.
Q.: IN FACT, YOU AVOID DOING THAT, RIGHT?
A.: YEAH.
Q.: HAVE YOU EVER REPORTED A SUSPICIOUS VEHICLE?
A.: MAYBE ONCE OR TWICE.
Q.: AND WHAT WAS SUSPICIOUS ABOUT THAT ONE THAT CAUSED YOU TO REPORT IT?
A.: ‘CAUSE WE WERE LOOKING FOR SOMEBODY THAT HAD DONE SOMETHING IN THE AREA.
Q.: SO YOU ARE NOT GOING TO REPORT ANY ILLEGALLY PARKED MOTOR HOME THERE.
A.: SOMETIMES. IT DEPENDS IF MY SUPERVISOR TELLS ME.
Q.: WHERE IS THE FIREHOUSE IN RELATION TO THE GATE?
A.: IT’S SOUTH ON GRAND CARIBE.
Q.: IS THAT THE MAIN ROAD?
A.: NO. CORONADO CAYS BOULEVARD IS THE MAIN ONE.
Q.: WHERE DOES CORONADO CAYS BOULEVARD GO?
A.: IT CONNECTS TO GRAND CARIBE.
Q.: HOW FAR IS THE FIRE STATION FROM THE KIOSK?
A.: I DON’T KNOW. ABOUT TWO BLOCKS.
Q.: IS THAT PART OF THE MAIN ROUTE THAT YOU TAKE WHEN YOU EXAMINE —
A.: YES.
Q.: — THE AREA —
A.: YEAH.
Q.: — FOR SUSPICIOUS VEHICLES?
A.: YEAH.
Q.: DID YOU TAKE THAT ROUTE AFTER YOU SAW THE MOTOR HOME COME INTO THE —
A.: NO.
Q.: — CAYS?
A.: NO.
Q.: WHERE WERE YOU PATROLLING?
A.: I WAS DOING THINGS THAT NIGHT.
Q.: LIKE WHAT?
A.: LIKE WORK.
Q.: LIKE WHAT?
A.: WE HAD A LOT OF COMPLAINTS THAT NIGHT.
Q.: SUCH AS?
A.: THERE WAS A BAG IN THE BAY. THERE WAS A MAN KNOCKING ON A DOOR. AND THERE WAS A BUNCH OF THINGS.
Q.: DID YOU EVER GO BY THE FIRE STATION OVER THERE?
A.: PROBABLY. BUT I DIDN’T SEE THE MOTOR HOME.
Q.: SO YOU THINK YOU WENT BY THE FIRE STATION?
A.: YES, I DID. PROBABLY.
Q.: DID YOU TELL MARION PASAS THAT YOU WENT BY THE FIRE STATION?
A.: I DON’T KNOW.
Q.: DID YOU SEE THE MOTOR HOME OVER THERE?
A.: NO.
Q.: DID YOU SEE ANY MOTOR HOME PARKED OVER THERE?
A.: I WASN’T PAYING ATTENTION.
Q.: WHY NOT?
A.: BECAUSE I WAS DOING OTHER THINGS.
Q.: DO YOU RECALL ANY OTHER MOTOR HOMES GOING IN THERE THAT NIGHT?
A.: I DON’T KNOW.
Q.: HOW DO YOU GET A MOTOR HOME REMOVED FROM THERE THAT IS ILLEGALLY PARKED?
A.: WE USUALLY DON’T. WE JUST PUT TICKETS ON IT.
Q.: WELL, IF YOU ARE PAYING ATTENTION TO ILLEGALLY PARKED VEHICLES AND YOU WANT THEM REMOVED, WHAT DO YOU DO?
A.: PUT A SEVENTY-TWO-HOUR WARNING ON IT.
Q.: WHAT IF YOU WANT THEM REMOVED NOW?
A.: CAN’T.
Q.: SO YOU CAN’T EVEN CALL THE POLICE TO HAVE THEM REMOVED?
A.: WELL, THE MOTOR HOMES, NO. IT’S A BIG VEHICLE. WE TRIED TO HAVE THEM TOWED OUT BEFORE. THEY JUST DON’T COME OUT FOR IT.
Q.: SO IT’S YOUR EXPERIENCE SINCE YOU HAVE BEEN WORKING THERE THAT CORONADO POLICE DO NOT SHOW UP TO ASK PEOPLE TO LEAVE THE CAYS WHO ARE ILLEGALLY PARKED?
A.: AS FAR AS I KNOW NOBODY’S BEEN ILLEGALLY PARKED.
Q.: THEN HOW DO YOU KNOW THE POLICE WON’T SHOW UP TO REMOVE THEM?
A.: BECAUSE WE HAD A MOTOR HOME THAT WOULD MOVE FROM SIDE — FROM ONE SIDE OF THE STREET TO THE OTHER SIDE, AND HE DIDN’T LIVE THERE. AND WE TRIED TO HAVE IT TOWED OUT, AND THEY WOULDN’T TOW IT OUT.
Q.: WELL, WHAT ABOUT IF YOU JUST KNOCK ON THE DOOR AND SAY, HEY, WOULD YOU PLEASE —
A.: NOBODY WAS IN IT.
Q.: ON THIS EVENING HAVE YOU HAD POLICE, ON ANY EVENING HAVE YOU HAD POLICE OFFICERS SHOW UP TO TRY TO KNOCK ON THE DOOR TO REMOVE ILLEGALLY PARKED VEHICLES?
A.: I DON’T KNOW.
Q.: HAVE YOU EVER CALLED THEM TO DO THAT?
A.: NO.
Q.: YOU BASICALLY DON’T CARE ABOUT WHO’S PARKING IN THERE, DO YOU?
A.: YES, I DO.
Q.: WHY?
A.: BECAUSE IT’S MY JOB.
Q.: WELL, —
A.: I WORK THE 4:00-TO-12:00 SHIFT. THERE’S A MIDNIGHT SHIFT THAT COMES ON. THEY ARE USUALLY THE ONES THAT DO THAT.
Q.: DO WHAT?
A.: TO GIVE THEM THE TICKETS AND TELL THEM TO LEAVE.
Q.: YOU’VE NEVER WORKED THE MIDNIGHT SHIFT?
A.: I WORKED IT BEFORE, BUT I WAS IN THE FRONT.
Q.: WHEN SECURITY OFFICERS, OTHER SECURITY OFFICERS, PATROL THE CAYS LOOKING FOR ILLEGALLY PARKED VEHICLES, IS THERE A STANDING INSTRUCTION ON WHAT YOU’RE SUPPOSED TO DO?
A.: CALL THE POLICE.
Q.: AND IF SOMEONE IS DOING THEIR JOB, THAT IS WHAT YOU WOULD EXPECT THEM TO DO FOR AN ILLEGALLY PARKED MOTOR HOME?
A.: YEAH.
Q.: AND THEN IF THEY WERE TO DO THAT, YOU WOULD EXPECT THE POLICE TO SHOW UP AND REMOVE THE MOTOR HOME, CORRECT?
A.: YES.
Q.: AND IF A SECURITY OFFICER IS DOING THEIR JOB, YOU WOULD EXPECT THEM TO PATROL ALL THE CAYS, WOULDN’T YOU?
A.: YEAH.
Q.: SO THEY WOULD BE ABLE TO LOOK ALL OVER THAT AREA TO SEE IF THERE ARE ANY ILLEGALLY PARKED VEHICLES.
A.: M-HM.
Q.: IS THAT A YES?
A.: YES.
Q.: SO BASED UPON YOUR EXPERIENCE DOWN THERE, YOU WOULD EXPECT SECURITY OFFICERS TO LOOK AT ALL THE STREETS AND PARKING AREAS —
A.: YES.
Q.: — BEFORE THEY MADE A CALL TO THE POLICE DEPARTMENT, CORRECT?
A.: YES.
Q.: THIS VEHICLE THAT YOU SAW COME IN THAT YOU DESCRIBED AS BEING DRIVEN BY THE DEFENDANT, HAD YOU SEEN HIS PICTURE IN THE PAPER?
A.: EXCUSE ME?
Q.: HAD YOU SEEN THE DEFENDANT’S PICTURE IN THE PAPER?
A.: NO. IT WAS ON T.V.
Q.: WHEN?
A.: I DON’T REMEMBER.
Q.: BEFORE HE DROVE IN? DID YOU RECOGNIZE HIM WHEN HE DROVE IN?
A.: WHEN HE DROVE IN, DID I RECOGNIZE HIM? NO. HE WASN’T ON T.V. YET.
Q.: WHEN WAS IT THAT YOU RECOGNIZED HIM?
A.: I DON’T REMEMBER.
Q.: HOW LONG?
A.: HOW LONG WHAT?
Q.: UNTIL YOU REALIZED THAT THE PERSON THAT YOU SAW DRIVE IN SOME TIME THAT DAY IS THE SAME PERSON YOU’RE SEEING ON T.V.?
A.: WHEN I SAW HIM ON T.V.
Q.: I’M ASKING YOU HOW —
A.: I DON’T KNOW WHEN I SAW HIM ON T.V.
Q.: ARE WE TALKING HOURS, WEEKS, MONTHS?
A.: I DON’T KNOW.
Q.: WHEN YOU MADE THAT REALIZATION, DID YOU CALL ANYBODY?
A.: NO.
Q.: WHY NOT?
A.: I DON’T KNOW.
Q.: DID YOU KNOW WHY HIS PICTURE WAS ON T.V.?
A.: YES.
Q.: DID YOU KNOW THAT MAYBE THIS MIGHT HELP HIM IF YOU HAD SEEN HIM?
A.: NO.
Q.: DID YOU THINK IT MIGHT HURT HIM IF YOU HAD SEEN HIM?
A.: I DIDN’T THINK ABOUT IT.
Q.: WHY NOT?
A.: (NO RESPONSE.)
Q.: WHEN WAS IT THAT YOU FINALLY DECIDED I’M GOING TO TELL SOMEBODY THAT THAT’S REALLY WHO I SAW?
A.: WHEN MARION CALLED.
Q.: WHEN YOU SPOKE WITH HER, WAS IT TAPED?
A.: I DON’T KNOW. IT WAS ON THE PHONE.
Q.: SO YOU DON’T KNOW IF SHE TAPED YOUR CONVERSATION?
A.: NO, I DON’T.
Q.: WAS THAT A DAY OFF THAT SHE SPOKE WITH YOU?
A.: YES, IT WAS.
Q.: HAD YOU BEEN DRINKING THAT DAY?
A.: NO.
Q.: YOU TOLD HER SOMETHING DIFFERENT THAN YOU TOLD THE OFFICERS, CORRECT?
A.: YES.
MR. DUSEK: THANK YOU, MA’AM.
THE COURT: ANYTHING FURTHER?

REDIRECT EXAMINATION
BY MR. BOYCE:
Q.: MISS MACK, THE MOTOR HOME THAT YOU SAW THAT WAS DRIVEN BY MR. WESTERFIELD, WHAT COLOR WAS IT?
A.: WHITE.
Q.: WAS IT DUSTY?
A.: YES. VERY.
Q.: AND THE MOTOR HOME THAT THE POLICE ASKED YOU ABOUT, THEY ASKED YOU ABOUT A BLUE MOTOR HOME, DIDN’T THEY
A.: YES.
Q.: BUT THE MOTOR HOME YOU SAW MR. WESTERFIELD DRIVING WAS WHITE?
A.: YES.
Q.: AND THE NEWS MEDIA WHERE YOU SAW MR. WESTERFIELD’S PICTURE, WAS THAT AFTER THE POLICE HAD INTERVIEWED YOU?
A.: YES.
Q.: AND WHEN YOU SAW MR. WESTERFIELD’S PICTURE ON T.V., YOU TOLD YOUR SUPERVISOR?
A.: I TOLD MY FRIEND.
Q.: OKAY.
A.: THEN I TOLD MY SUPERVISOR LATER.
Q.: SO YOU TOLD YOUR FRIEND AND YOUR SUPERVISOR?
A.: YES.
Q.: AND DO YOU KNOW WHETHER OR NOT YOUR SUPERVISOR CONTACTED THE DEFENSE AT THAT POINT?
A.: NO.
MR. DUSEK: OBJECTION. SPECULATION. HEARSAY.
THE COURT: SUSTAINED.
BY MR. BOYCE:
Q.: HOW MANY SQUARE MILES IS THE CAYS?
A.: DRIVING ALL THROUGH IT, IT’S FOURTEEN MILES I THINK.
Q.: AND THERE’S — AND I BELIEVE YOU TOLD US THERE’S A YACHT CLUB —
A.: YES.
Q.: — CONNECTED TO THE CAYS.
A.: YES.
Q.: SOMETIMES PEOPLE PARK IN THAT YACHT CLUB PARKING LOT.
A.: YES.
Q.: IS IT DARK IN THERE?
A.: VERY DARK. ON THE DIRT PART.
Q.: YOU DON’T PATROL THAT AREA, DO YOU?
A.: NO.
Q.: THAT’S NOT PART OF YOUR JURISDICTION, IS IT?
A.: NO. WE ONLY GO THERE WHEN THE ALARM GOES OFF.
Q.: DO YOU KNOW WHEN THE SILVER STRAND BEACH CLOSES?
A.: WELL, I DON’T KNOW ABOUT AT THAT TIME, BUT NOW IT CLOSES 8:00.
Q.: IT CLOSES AT DIFFERENT TIMES DEPENDING ON WHAT TIME OF YEAR IT IS.
A.: YES.
Q.: IN YOUR EXPERIENCE DO YOU HAVE MOTOR HOMES COMING OVER FROM THE STRAND TO PARK IN THE CAYS WHEN IT CLOSES, WHEN THE STRAND CLOSES?
A.: YES.
Q.: YOU TOLD US YOU WERE — WERE YOU PRETTY BUSY THAT NIGHT?
A.: YES.
Q.: THIS IS ON THE NIGHT OF FEBRUARY 3RD, IS THAT RIGHT?
A.: YES.
Q.: WERE YOU MORE BUSY THAN OTHER NIGHTS THAT YOU WORK AT THE CAYS?
A.: YES.
(DISCUSSION OFF THE RECORD BETWEEN MR. BOYCE
AND MR. FELDMAN.)
MR. BOYCE: THANK YOU, MISS MACK.
THE COURT: ANYTHING FURTHER?

RECROSS-EXAMINATION
BY MR. DUSEK:
Q.: YOU TALKED ABOUT IT CLOSING AT 8:00 O’CLOCK NOW, IS THAT CORRECT?
A.: SOMETIMES IT DOES. IT DEPENDS ON THE TIME OF THE YEAR.
Q.: AND DO YOU KNOW WHEN THAT TIME CHANGE CHANGES
A.: NO.
Q.: SO I THINK YOU TOLD COUNSEL THAT PEOPLE GO OVER THE CAYS IF THEY CAN’T GET IN AND THEN COME OVER TO YOUR PLACE. IS THAT CORRECT?
A.: YES.
Q.: SO THEY WOULD GO OVER TO THE CAYS AND TRY TO GET INTO THE GATE THAT’S ON PHOTOGRAPH B IN 71?
MR. BOYCE: SPECULATION, YOUR HONOR.
THE COURT: OVERRULED.
BY MR. DUSEK:
Q.: IS THAT CORRECT?
A.: YES.
Q.: SO THAT’S HOW THEY TRY TO GET IN, YES?
A.: TO THE PARK, STATE BEACH?
Q.: YES.
A.: YES. I GUESS.
Q.: AND IF THEY COULDN’T GET IN, THEY WOULD COME BACK, GO UNDERNEATH THE FREEWAY, DIRECTLY AT THE KIOSK?
A.: YES.
Q.: THOSE WERE PEOPLE THAT WERE TRYING TO GET INTO THE CAYS AND COULDN’T GET IN BECAUSE IT WAS CLOSED?
A.: YES.
Q.: THE PEOPLE THAT ARE COMING DOWN THE WAY, THE HIGHWAY, AND TURNING DIRECTLY IN ARE NOT COMING TRYING TO GET IN THE STRAND, ARE THEY?
MR. FELDMAN: SPECULATION.
MR. BOYCE: SPECULATION.
THE COURT: OVERRULED.
THE WITNESS: UNLESS THEY DID A U-TURN. THERE’S A PLACE TO MAKE A U-TURN DOWN THE STREET.
MR. FELDMAN: I’M SORRY, YOUR HONOR, I DID NOT HEAR THE ANSWER. I’M SORRY.
THE COURT: BOB, READ THE ANSWER BACK.
(THE FOLLOWING WAS READ BY THE REPORTER:
"THE WITNESS: UNLESS THEY DID A U-TURN. THERE’S A PLACE
TO MAKE A U-TURN DOWN THE STREET.")
MR. FELDMAN: THANK YOU.
BY MR. DUSEK:
Q.: YOU SEE THAT PLACE WHERE YOU MAKE A U-TURN IS VISIBLE ON EITHER PHOTOGRAPH A OR B OF 71?
A.: NO.
Q.: AND TO HAVE TO MAKE A U-TURN, WOULDN’T THEY SIMPLY HAVE TO MISS THIS LITTLE TURN GOING INTO THE CAYS?
A.: YES.
Q.: THAT’S WELL MARKED, ISN’T IT?
A.: YES.
Q.: AND IF THE PEOPLE ARE GOING THERE AT 8:00 O’CLOCK AT NIGHT, THAT’S DARK, ISN’T IT?
A.: YES.
Q.: AND IF THEY’RE GOING THERE AT 7:00 O’CLOCK AT NIGHT, THAT’S DARK, ISN’T IT?
A.: YES.
MR. DUSEK: THANK YOU, MA’AM.
THE COURT: ALL RIGHT.
ANYTHING FURTHER, MR. BOYCE?
MR. BOYCE: COULD I HAVE JUST A MOMENT, YOUR HONOR?
(DISCUSSION OFF THE RECORD BETWEEN MR. BOYCE
AND MR. FELDMAN.)

FURTHER REDIRECT EXAMINATION
BY MR. BOYCE:
Q.: MISS MACK, IF THEY MAKE — IF THE PEOPLE MAKE A U-TURN AND THEN COME INTO THE CAYS, DOES IT APPEAR AS THOUGH THEY’RE COMING FROM IMPERIAL BEACH?
A.: YES.
MR. BOYCE: THANK YOU.
I HAVE NOTHING FURTHER.
THE COURT: ALL RIGHT.
MA’AM, THANK YOU VERY MUCH FOR COMING IN. YOU ARE FREE TO LEAVE THESE PROCEEDINGS. YOU ARE INSTRUCTED NOT TO DISCUSS YOUR TESTIMONY WITH ANYONE UNTIL THIS MATTER IS CONCLUDED.
THE WITNESS: THANK YOU.
THE COURT: ALL RIGHT. THANK YOU.
(THE WITNESS WAS EXCUSED.)
MR. BOYCE: DEFENSE CALLS DETECTIVE GERBAC.

FRANK GERBAC,
CALLED AS A WITNESS BY THE DEFENDANT, HAVING BEEN DULY SWORN, TESTIFIED AS FOLLOWS:
THE CLERK: SIR, PLEASE STATE YOUR NAME AND SPELL IT FOR THE RECORD.
THE WITNESS: MY NAME IS FRANK GERBAC. G-E-R-B-A-C.
/ / /
DIRECT EXAMINATION
BY MR. BOYCE:
Q.: GOOD MORNING, SIR.
A.: GOOD MORNING.
Q.: WHAT’S YOUR OCCUPATION?
A.: I’M A POLICE OFFICER EMPLOYED BY THE CITY OF SAN DIEGO.
Q.: DO YOU HAVE A PARTICULAR ASSIGNMENT?
A.: I WORK THE NORTHEASTERN DIVISION.
Q.: AND WERE YOU SO WORKING ON THE FIRST WEEK TO TEN DAYS IN FEBRUARY, 2002?
A.: YES, SIR, I WAS.
Q.: DID YOU BECOME INVOLVED IN THE INVESTIGATION INTO THE DISAPPEARANCE OF DANIELLE VAN DAM?
A.: YES, SIR, I DID.
Q.: AND AS A RESULT OF THAT WERE YOU ASKED TO INTERVIEW WITNESSES?
A.: YES, SIR.
Q.: DID YOU INTERVIEW A PERSON BY THE NAME OF DENISE KEMAL?
A.: YES, I DID.
Q.: WHEN WAS THE FIRST TIME THAT YOU INTERVIEWED MISS KEMAL?
A.: I INTERVIEWED HER ON FEBRUARY THE 2ND AT APPROXIMATELY 5:00 IN THE AFTERNOON.
Q.: WHERE DID THAT INTERVIEW TAKE PLACE?
A.: IN AN INTERVIEW ROOM AT THE NORTHEASTERN SUBSTATION.
Q.: AND AT THAT TIME DID YOU COMMUNICATE TO MISS KEMAL THAT YOU WERE ATTEMPTING TO LOCATE DANIELLE VAN DAM?
A.: YES, I DID.
Q.: AND DID YOU ASK MISS KEMAL WHERE SHE HAD BEEN THE NIGHT BEFORE?
A.: YES, I DID.
Q.: DID YOU LEARN THAT SHE HAD BEEN AT DAD’S CAFE?
A.: YES, SIR.
Q.: DID YOU ASK HER IF SHE HAD NOTICED ANYTHING SUSPICIOUS AT DAD’S CAFE?
MR. DUSEK: OBJECTION. HEARSAY. NOT INCONSISTENT.
THE COURT: AT THIS POINT IN TIME I’M NOT SURE WHAT THE ANSWER IS, SO I’LL SEE YOU AT SIDEBAR AND KNOW WHERE YOU’RE HEADED, MR. BOYCE.
(SIDEBAR DISCUSSION, OUT OF THE HEARING OF THE JURY,
AS FOLLOWS:
THE COURT: I’M ASSUMING WE’RE ONLY GOING TO BE COVERING AREAS OF INCONSISTENCY.
MR. BOYCE: THERE’S TWO AREAS. ONE IS THAT MISS KEMAL NEVER MENTIONED DAVID WESTERFIELD DURING EITHER INTERVIEW ON FEBRUARY 2ND. AND THE OTHER AREA IS WHEN THE LADIES RETURNED TO THE VAN DAM HOME, MISS KEMAL STATED THAT DAMON NEVER CAME DOWNSTAIRS.
THE COURT: OKAY.
MR. DUSEK: THE FACT THAT SHE FAILED TO MENTION ANYTHING IS NOT INCONSISTENT. HER ANSWERS ARE BASED UPON WHAT SHE WAS ASKED.
THE COURT: YOU CAN COVER THAT IN CROSS-EXAMINATION IF YOU WANT.
SO THOSE ARE THE TWO AREAS THAT YOU ARE GOING TO BE COVERING?
MR. BOYCE: YEAH. AND ALSO — WELL, THIS IS RELATED TO THE AREA. SHE DIDN’T MENTION DAVID WESTERFIELD, BUT MISS KEMAL DIDN’T TELL DETECTIVE GERBAC THAT SHE SAW DAVID WESTERFIELD THAT MORNING. AND HE SAID I LEFT AT 9:00 O’CLOCK.
MR. DUSEK: FIRST OF ALL, SHE DID MENTION DAVID WESTERFIELD AT THE BAR DURING AN INTERVIEW WITH GERBAC. SO THAT’S NOT INCONSISTENT.
MR. BOYCE: I DON’T —
THE COURT: THE TWO OF YOU ARE WORKING FROM THE SAME STUFF. EITHER SHE DID OR SHE DIDN’T. IF SHE DID, IT IS CONSISTENT. IF SHE DIDN’T, IT’S NOT.
MR. DUSEK: PAGE 21. AT LEAST ON THAT PAGE SHE MENTIONS DAVE.
MR. BOYCE: I DON’T HAVE THIS.
MR. DUSEK: YOU DON’T HAVE THIS SUMMARY; THAT’S WHAT I DID. I GAVE YOU A TRANSCRIPT.
MR. BOYCE: I DON’T HAVE THE TRANSCRIPT.
MR. DUSEK: I JUST GAVE IT TO YOU.
MR. BOYCE: WHAT PAGE IS IT ON?
MR. DUSEK: TWENTY-ONE.
[PAUSE.]
MR. DUSEK: PAGE 14. DAVE.
DAVE AND GARY ON PAGE 14.
MR. BOYCE: ALL RIGHT. BUT IN ANY EVENT SHE DOESN’T MENTION ANYTHING ABOUT HIM BEING CREEPY.
MR. DUSEK: WELL, THE LACK OF STATEMENTS DOES NOT MAKE IT INCONSISTENT.
THE COURT: RIGHT.
AT THIS POINT IN TIME IT’S OBVIOUS THAT SHE’S MADE REFERENCE TO HIM. THE ONLY THING I HAVEN’T HEARD, I MEAN THE ONLY THING THAT SOUNDS INCONSISTENT IS A STATEMENT THAT WESTERFIELD — I MEAN THAT MR. VAN DAM NEVER CAME DOWNSTAIRS. UNLESS THERE’S —
MR. DUSEK: PAGE 33 IT SHOWS UP. AT PAGE 34.
THE COURT: ALL RIGHT. WELL, IF THERE’S NO INCONSISTENT STATEMENTS, THEN, YOU KNOW, I DON’T UNDERSTAND WHAT’S GOING ON.
MR. BOYCE: WELL, I DON’T —
MR. FELDMAN: WE DON’T EITHER.
MR. DUSEK: STANDING THERE WHEN I WENT TO THE GARAGE. BEFORE THEY WENT TO EAT PIZZA.
MR. FELDMAN: COULD WE HAVE A DISCOVERY CITE, YOUR HONOR, BECAUSE THIS IS NEWS TO US.
MR. DUSEK: THIS WAS THE TAPE THEY PROVIDED — WE PROVIDED TO THEM. WE HAVE MADE A TRANSCRIPT OF IT WHICH I PROVIDED TO THEM AS POTENTIAL IMPEACHMENT OF THEIR WITNESS THEY ARE CALLING. I PROVIDED IT TO THEM TODAY AS WE WALKED IN. JUST LIKE THEY WERE GIVING ME THEIR TRANSCRIPTS, THEIR WITNESSES AS THEY WERE CALLING THEM.
MR. FELDMAN: THEN WE MOVE FOR A CONTINUANCE FOR A REASONABLE OPPORTUNITY TO REVIEW THE —
THE COURT: NO. JUST TAKE THIS WITNESS OFF THE STAND AND YOU DO IT OVERNIGHT AND YOU CALL HIM IN THE MORNING IF THAT’S WHAT YOU WANT TO DO. BUT IT’S OBVIOUS THAT THE REPRESENTATIONS YOU’VE MADE —
MR. BOYCE: I UNDERSTAND.
THE COURT: — ARE NOT INCONSISTENT STATEMENTS. SO IF YOU WANT TO CALL THIS DETECTIVE, WE WILL JUST LET THIS DETECTIVE GO AND YOU CAN CALL HIM TOMORROW IF YOU WANT.
MR. BOYCE: YOUR HONOR, WE DO NOT HAVE SEVERAL PAGES OF
THE —
MR. DUSEK: IF THEY ARE MISSING A PAGE — THAT’S NOT THE ONE.
THE COURT: ALL RIGHT.
WELL, YOU’VE HAD ACCESS TO THE TAPE AND APPARENTLY YOU HAVE A COPY OF THE TRANSCRIPT THAT’S BEEN PREPARED BY THE PEOPLE. AND YOU’RE NOT PRECLUDED FROM PREPARING YOUR OWN.
MR. FELDMAN: YES, YOUR HONOR.
THE COURT: SO YOU ARE NOT READY FOR THIS WITNESS, SO WE WILL LET HIM GO AND YOU CALL HIM BACK.
MR. BOYCE: YOUR HONOR, WE HAVE GOT A TRANSCRIPT OF THIS TAPE, BUT IT DOESN’T HAVE THESE REFERENCES IN THE TRANSCRIPT. WHAT I HAVE DOESN’T HAVE PAGES — HE JUST HANDED ME DOESN’T HAVE PAGES 3 THROUGH 5.
THE COURT: WE ARE NOT GOING TO DEBATE IT RIGHT NOW. SO YOU ELECT EITHER TO RECALL HIM OR YOU PROCEED IF YOU’VE GOT SOMETHING.
MR. FELDMAN: DID YOUR HONOR AGREE THAT AT LEAST FOR PURPOSES OF THE INCONSISTENCY THAT HE DID NOT SAY DAMON CAME DOWNSTAIRS?
THE COURT: BUT THERE’S —
MR. FELDMAN: I’M SORRY. I’M ASKING —
THE COURT: THERE’S AN INDICATION FROM WHAT MR. DUSEK IS TELLING ME THAT SHE IN FACT DISCUSSED THAT. SO IT’S NOT AN INCONSISTENCY.
MR. DUSEK: 33 AND 34.
MR. BOYCE: WAIT A SECOND.
MR. FELDMAN: WHAT’S THE DATE?
MR. BOYCE: I THINK THIS IS HERGENROETHER.
THE COURT: YOU CAN LAY A FOUNDATION FOR IT.
MR. BOYCE: I’VE GOT HIS REPORTS. AND IN HIS REPORTS IT’S INCONSISTENT. AND HE’S TOLD ME.
THE COURT: ALL RIGHT. IF THE REPORTS ARE BASED ON TAPES, THEN YOU’VE GOT THE ACTUAL TAPE. AND IF THAT’S THE TAPE, THEN IT’S NOT AN INCONSISTENT STATEMENT.
MR. BOYCE: I UNDERSTAND, YOUR HONOR. BUT WE HAVE TRANSCRIBED THE MICROCASSETTES. WE HAVE TRANSCRIBED BOTH OF THEM. THERE IS NO MENTION. THE TAPES ARE CONSISTENT WITH HIS REPORTS, AND HIS REPORTS HE SAID VERY CLEARLY DAMON DID NOT COME DOWNSTAIRS. AND HE ALSO SAID — HE ALSO TOLD ME THERE’S NO MENTION OF DAVID WESTERFIELD IN THE REPORTS.
MR. FELDMAN: SO IT’S OUR POSITION THIS MAY NOT BE AN ACCURATE TRANSCRIPT. IF THE COURT WOULD PERMIT, WE WOULD LIKE TO ASK THE WITNESS THE QUESTIONS AND LET HIM DECIDE WHETHER THIS IS AN ACCURATE TRANSCRIPT. WE HAVE OTHER TRANSCRIPTS THAT INDICATE WHAT THAT IS, THAT IS TO SAY, WHAT COUNSEL SAYS IS NOT WHAT IT PURPORTS TO BE.
MR. DUSEK: THAT SHOULD BE AN IN LIMINE MOTION, NOT IN FRONT OF THE JURY.
THE COURT: THAT’S EXACTLY CORRECT. WE ARE NOT GOING TO CONDUCT A DISCOVERY EXPERIMENT IN FRONT OF THE JURY.
MR. FELDMAN: FINE, YOUR HONOR.
MR. BOYCE: COULD I ASK HIM ABOUT HIS REPORTS?
THE COURT: YOU CAN ASK HIM ABOUT THE REPORTS AND LAY THE FOUNDATION, BUT NO QUESTIONS UNLESS THEY’RE INCONSISTENT.
(END OF SIDEBAR DISCUSSION.)
BY MR. BOYCE:
Q.: GOOD MORNING, DETECTIVE.
A.: GOOD MORNING AGAIN, SIR.
Q.: YOU TOLD US YOU INTERVIEWED A PERSON BY THE NAME OF DENISE KEMAL. IS THAT CORRECT?
A.: YES, I DID.
Q.: AND THE FIRST TIME WAS ON FEBRUARY 2ND AT APPROXIMATELY 5:00 O’CLOCK, P.M.?
A.: YES, SIR.
Q.: AND AT THAT TIME DID MISS KEMAL MENTION ANYTHING TO YOU ABOUT A PERSON BY THE NAME OF DAVID WESTERFIELD?
MR. DUSEK: OBJECTION. HEARSAY. NOT INCONSISTENT.
THE COURT: AT THIS POINT IN TIME LET’S LAY THE FOUNDATION AS TO WHETHER IT WAS TAPE-RECORDED, COUNSEL.
BY MR. BOYCE:
Q.: DID YOU DO A REPORT IN THIS CASE?
A.: YES, I DID.
Q.: AND DID THAT REPORT REFLECT — WAS THE INTERVIEW TAPE-RECORDED?
A.: YES, IT WAS.
Q.: AND WAS THE REPORT A SUMMARY OF THE TAPE RECORDING?
A.: A TRANSCRIPT, YES.
Q.: OF THE TRANSCRIPT OF THE TAPE RECORDING?
A.: I BELIEVE THAT IT WAS, YES.
Q.: YOU INTERVIEWED MISS KEMAL ON TWO OCCASIONS, CORRECT, THAT DAY?
A.: THAT DAY, YES.
Q.: WHEN WAS THE SECOND OCCASION?
A.: ABOUT 10:00 O’CLOCK LATER ON THAT EVENING.
Q.: WERE BOTH OF THESE OCCASIONS TAPE-RECORDED?
A.: YES, SIR. BOTH OF THEM.
Q.: HAVE YOU BEEN PROVIDED WITH A TAPE — A COPY OF ANY TRANSCRIPT OF THE TAPE RECORDING OF YOUR INTERVIEW OF MISS KEMAL?
A.: NO, I HAVE NOT.
Q.: DID YOU — REFERRING FIRST TO THE 5:00 O’CLOCK INTERVIEW.
MR. DUSEK: YOUR HONOR, I THINK WE NEED AN IN LIMINE MOTION, YOUR HONOR.
THE COURT: LADIES AND GENTLEMEN, WE’RE GOING TO TAKE A BREAK SO WE CAN GET THIS MATTER RESOLVED WITHOUT BOBBING HEADS OVER HERE.
PLEASE REMEMBER THE ADMONITION OF THE COURT NOT TO DISCUSS ANY OF THE EVIDENCE OR TESTIMONY AMONG YOURSELVES OR WITH ANY OTHER PERSONS NOR FORM OR EXPRESS ANY OPINIONS ON THE MATTER UNTIL IT IS SUBMITTED TO YOU FOR DECISION.
LADIES AND GENTLEMEN, I DON’T HAVE ANY IDEA HOW LONG WE’RE GOING TO BE PUTZING AROUND HERE, SO LET’S MAKE IT A TWENTY-MINUTE BREAK. LET’S BE OUTSIDE THE DOOR AT 10:20, PLEASE. TWENTY AFTER.
(THE JURY RECESSED AT 10:01 O’CLOCK, A.M.)
(THE FOLLOWING OCCURRED OUT OF THE PRESENCE OF THE
JURY:
THE COURT: OKAY. THE RECORD SHOULD REFLECT THE JURORS AND ALTERNATES HAVE LEFT THE COURTROOM.
COUNSEL, THERE’S A TAPE RECORDING. THERE’S A TRANSCRIPT. THE TAPE SPEAKS FOR ITSELF. BOTH OF YOU HAVE TOLD ME DIFFERENT THINGS ABOUT WHAT THE TAPE SAYS. NOW, THERE’S EITHER AN INCONSISTENT STATEMENT OR THERE’S NOT.
MR. BOYCE: WELL, YOUR HONOR, FIRST OF ALL, I BELIEVE THAT I’M NOT ATTEMPTING TO IMPEACH THIS WITNESS AT THIS TIME. I’M GOING TO ASK HIM WHAT THE STATEMENT WAS THAT —
THE COURT: YOU’RE NOT IMPEACHING HIM. YOU’RE TRYING TO IMPEACH MISS KEMAL.
MR. BOYCE: THAT’S CORRECT. AND I CAN ASK HIM WHAT THE STATEMENT WAS MISS KEMAL MADE TO HIM. AND IF THEY WANT TO BRING UP A TAPE RECORDING THAT’S INCONSISTENT, THEN THEY CAN DO THAT. THEY CAN IMPEACH HIM WITH THAT. BUT —
THE COURT: THE OBJECTION IS THERE IS NO INCONSISTENT STATEMENT. AND THE OBJECTION IS BASED ON A TAPE RECORDING THAT SHOWS SHE SAID WHAT YOU CLAIM SHE DIDN’T SAY. NOW, IF THERE’S NO INCONSISTENT STATEMENT, THEN WE’RE JUST TAKING THIS DETECTIVE’S TIME FOR NO REASON.
MR. FELDMAN: YOUR HONOR, THIS IS MY BEST POSITION WITH REGARD TO WHAT’S HAPPENED. WHAT COUNSEL SHOWED US AT SIDEBAR IS IN OUR RECORDS AN AUDIOTAPED INTERVIEW OF AN INTERVIEW BY WE BELIEVE IT’S DETECTIVE HERGENROETHER MARCH THE 8TH OF ’02. WHAT WE HAVE AT COUNSEL TABLE IS ONE OF THE FIRST INTERVIEWS BY DETECTIVE GERBAC. WHAT COUNSEL SHOWED US WE HAVE COPIES OF. I RECOGNIZE IT. WE HAVE OUR OWN DRAFT, BUT IT’S MADE MORE THAN A MONTH AFTER WHAT THIS WITNESS SAID. AND I CHECKED AGAINST WHAT THE TRANSCRIPT MR. DUSEK JUST SHOWED US, AND YOU’RE WELCOME TO LOOK AT MY COMPUTER SCREEN AS WELL, BUT IT’S NO QUESTION BUT THAT IT’S OUR VIEW THAT WHAT THEY HAVE GOT IS AN INTERVIEW OF HERGENROETHER WITH KEMAL ON OR ABOUT MARCH 8TH.
NOW, I COULD BE MISTAKEN AS TO HERGENROETHER, BUT REGARDLESS, WE ARE TRYING TO SHOW A STATEMENT THAT WAS MADE 2/4 OR 2/6.
MR. BOYCE: 2/2.
MR. FELDMAN I’M SORRY. 2/4.
THE COURT: MR.DUSEK.
MR. DUSEK: IT SEEMS LIKE THE BEST WAY TO RESOLVE THIS IS TO ADJOURN WITH THIS OFFICER AND COMPARE TAPES AND TRANSCRIPTS. THAT’S THE ONLY WAY WE’RE GOING TO KNOW FOR SURE. AND WE CERTAINLY HAVE TIME TOMORROW OR EVEN THURSDAY IF WE HAVE TO. BUT WE GOT TWO TRANSCRIPTS THAT APPARENTLY AT LEAST REPRESENTATIONS FROM THE DEFENSE SHOW TWO DIFFERENT THINGS ON DIFFERENT TAPES. AND THE ONLY WAY IT CAN BE RESOLVED ACCURATELY IS TO COMPARE THE ACTUAL TAPES WITH THE TRANSCRIPTS.
THE COURT: ALL RIGHT.
NOW, HOW MANY INTERVIEWS WERE ON TAPE ON THIS WITNESS? JUST THE TWO FROM DETECTIVE GERBAC OR IS THERE A THIRD?
MR. BOYCE: THERE’S FOUR, YOUR HONOR.
THE COURT: FOUR.
MR. BOYCE: THERE’S TWO WITH THIS DETECTIVE ON FEBRUARY 4TH. AND THERE’S ONE WITH MR. FISHER ON FEBRUARY 11TH I BELIEVE. FEBRUARY — I’M SORRY. FEBRUARY 3RD. AT 1:00 O’CLOCK. WITH MR. FISHER. AND THEN THERE IS MISS — THERE IS A TAPE RECORDING BETWEEN MISS DENISE KEMAL AND A PSYCHIC WHICH DOESN’T HAVE ANY RELEVANCE. AND THEN LATER WITH A DETECTIVE ON FEBRUARY 27TH.
THE COURT: ALL RIGHT.
MR. BOYCE: IT’S A REPORT WRITTEN BY DETECTIVE HERGENROETHER. AND HE STATES THAT — YEAH, THIS IS —
MR. DUSEK: WE NEED TO COMPARE THEM, YOUR HONOR.
THE COURT: YES. THE OBVIOUS ANSWER IS THAT YOU’RE EITHER LOOKING AT THE SAME THING OR YOU’RE NOT LOOKING AT THE SAME THING. AND IF YOU’RE NOT LOOKING AT THE SAME THING, THE TIME TO ARGUE ABOUT IT IS OVERNIGHT WHILE THE TWO OF YOU CAN WORK IT OUT AND WE’RE NOT TAKING UP THE JURY’S TIME AND THE DETECTIVE’S TIME. BECAUSE HE’S ONLY GOING TO BE ABLE TO TESTIFY TO THE INTERVIEWS HE DID ANYWAY. SO YOU EITHER HAVE THE RIGHT ONES AND THE PEOPLE HAVE THE RIGHT ONE AS TO THIS PARTICULAR DETECTIVE OR YOU DON’T.
MR. BOYCE: I UNDERSTAND, YOUR HONOR. I DON’T WANT TO ARGUE WITH THE COURT OR TAKE UP ANY MORE TIME, BUT I FEEL THE APPROPRIATE WAY TO DO IT IS TO EXAMINE THIS WITNESS ON WHAT HIS PRESENT RECOLLECTION IS BASED ON REFRESHING HIS RECOLLECTION WITH THE POLICE REPORTS. AND IF THEY WANT TO CALL HIM BACK OR THEY WANT TO IMPEACH HIM WITH ANY TAPE-RECORDED INTERVIEWS, THEY ARE FREE TO DO THAT.
THE COURT: THE PROBLEM IS, MR. BOYCE, THE PROBLEM WITH THAT IS I HAVE AN OBJECTION PENDING AND THE OBJECTION THAT IS ON THE FLOOR RIGHT NOW IS THAT THERE IS NO INCONSISTENT STATEMENT BASED ON THE PEOPLE’S REVIEW OF THE VERY SAME INTERVIEWS WITH THIS DETECTIVE. IF THERE IS NO INCONSISTENT STATEMENT, THEN THE OBJECTION IS GOING TO BE SUSTAINED AND YOU’RE GOING TO HAVE NOTHING TO ASK THIS DETECTIVE.
SO THE BOTTOM LINE IS VERY SIMPLE. YOUR REQUEST IS DENIED. THE TWO OF YOU ARE TO MEET AND CONFER, AND THEN YOU JUST — DETECTIVE, WE’LL HAVE YOU EITHER FIRST THING TOMORROW MORNING — WELL, I DON’T WANT TO DO THE SCHEDULING, BUT WE WILL CALL THE DETECTIVE BACK WHEN YOU BOTH AGREE THAT YOU’RE LOOKING AT THE SAME TRANSCRIPT.
MR. BOYCE: THEN IF I DON’T USE THE TRANSCRIPT, IF I JUST ASK THE WITNESS WHAT THE STATEMENT WAS, AND IT’S INCONSISTENT,–
THE COURT: THE OBJECTION IS STILL THE SAME, THOUGH, MR. BOYCE. THE OBJECTION IS STILL THE SAME. AND THE OBJECTION IS BASED ON A TRANSCRIPT. AND SO IF I HAVE NO INCONSISTENT STATEMENT, I’M GOING TO SUSTAIN THE OBJECTION BECAUSE THE ONLY REASON HE’S HERE IS AN INCONSISTENT STATEMENT. AND IF THERE ISN’T ONE, YOU KNOW, THERE’S NO POINT IN GOING FORWARD.
SO, DETECTIVE, THEY’LL CALL YOU BACK.
THE WITNESS: OKAY. THANK YOU, YOUR HONOR.
THE COURT: ALL RIGHT. HAVE A GOOD DAY.
WE WILL BE IN RECESS UNTIL 10:20.
(END OF PROCEEDINGS OUT OF THE PRESENCE OF THE JURY.)
(RECESS, 10:08 O’CLOCK, A.M., TO 10:20 O’CLOCK, A.M.)

09072 - July 9th 2002 - Transcript of David Westerfield Trial Day 18 - morning 2
08074 - July 8th 2002 - Transcript of David Westerfield Trial Day 17 - afternoon 2