> TRIAL DAY 18 – PART 4 – afternoon 2
SAN DIEGO, CALIFORNIA, TUESDAY, JULY 9, 2002, (afternoon 2)
WITNESSES:
Tanya Dulaney (recalled to testify about fibers taken from the motor home – Continued)
Jennifer Shen (recalled to testify about Westerfield’s shoes, fibers, hairs)
7730
1 THE COURT: WELCOME BACK, LADIES AND GENTLEMEN.
2 ALL RIGHT. MR. FELDMAN.
3 MR. FELDMAN: THANK YOU.
4 Q.: MA’AM, I THINK YOU TOLD US THAT WITH REGARD TO THE
5 SOURCE OF SOME OF THE MATERIALS THAT YOU WERE EVALUATING, YOU
6 SPECIFICALLY REFERRED TO ITEMS THAT WERE SEIZED IN 92. IT’S ON
7 THE CHART BEHIND YOU. WHITE SHEET FROM AROUND THE BODY.
8 DID YOU HAVE ANYTHING TO DO WITH THE REMOVAL OF ANY
9 OF THE FIBERS FROM THAT SHEET?
10 A.: NO, I DID NOT.
11 Q.: HAVE YOU EVER SEEN THAT SHEET?
12 A.: NO, I HAVEN’T.
13 Q.: DO YOU KNOW HOW IT WAS — WHERE IT WAS KEPT OR HOW
14 IT WAS PRESERVED?
15 A.: NO, I DO NOT.
16 Q.: SO ALL YOU EVER GOT WERE WHAT WAS REPRESENTED TO
17 YOU TO BE LIFTS FROM A SHEET?
18 A.: NO. ACTUALLY, I GOT THE ACTUAL FIBERS FROM THE
19 SHEET.
20 Q.: WHO GAVE THEM TO YOU?
21 A.: I RECEIVED THEM FROM PROPERTY, THE PROPERTY ROOM AT
22 THE SAN DIEGO POLICE DEPARTMENT.
23 Q.: SO SOMEONE ELSE CHECKED THEM INTO PROPERTY AND YOU
24 WENT TO PROPERTY TO GO CHECK ‘EM OUT?
25 A.: THAT’S CORRECT.
26 Q.: BUT YOU NEVER HAD ANYTHING TO DO WITH THE SHEET?
27 A.: THAT’S CORRECT.
28 Q.: 106 — I’M SORRY. I’M JUST — MY GLASSES ARE
7731
1 GETTING OLD.
2 A.: IT’S 108.
3 Q.: 108 TALKS ABOUT HAIR REMOVED FROM THE HEAD.
4 DID YOU DO A TAPE LIFT FROM THE HAIR?
5 A.: NO, I DID NOT.
6 Q.: IS THAT FIBER ANOTHER FIBER THAT WAS APPARENTLY
7 REMOVED BY SOMEONE ELSE?
8 A.: YES.
9 Q.: WHO?
10 A.: JENNIFER SHEN.
11 Q.: THEN IT TALKS ABOUT VEGETATION FROM THE BUTTOCKS,
12 ET CETERA, AND IT SAYS THERE IS A FIBER THERE AT 115, IS THAT
13 RIGHT?
14 A.: YES.
15 Q.: DID YOU HAVE ANYTHING TO DO WITH THE COLLECTION OF
16 THAT?
17 A.: NO, I DID NOT.
18 Q.: WERE YOU AWARE THAT THE BODY WAS IN BASICALLY A
19 DUMPSITE?
20 A.: I KNEW —
21 MR. CLARKE: OBJECTION, RELEVANCE, ALSO BEYOND THE SCOPE.
22 THE COURT: SUSTAINED.
23 MR. FELDMAN: SOURCE, YOUR HONOR.
24 THE COURT: OVERRULED.
25
26 BY MR. FELDMAN:
27 Q.: SO YOU DON’T KNOW WHERE THE BLUE-GRAY FIBERS
28 SOURCED FROM IN 115, IS THAT RIGHT?
.
7732
1 A.: THAT’S CORRECT.
2 Q.: YOU DON’T KNOW WHERE THE BLUE FIBERS SOURCED FROM
3 IN 108?
4 A.: THAT’S CORRECT.
5 Q.: OR 1 — OR 92?
6 A.: THAT’S CORRECT.
7 Q.: OR 79?
8 A.: THAT’S CORRECT.
9 Q.: AND WITHOUT AN INDIVIDUAL SOURCE, A REAL MATCH, YOU
10 CANNOT MAKE THE STATEMENT THAT THEY MATCH, DO YOU KNOW WHAT I
11 MEAN?
12 A.: NO.
13 Q.: OKAY.
14 YOU’VE TOLD US THAT THE FIBERS COULD COME FROM A
15 COMMON SOURCE, AND THAT THEY COULD ALSO NOT HAVE COME FROM A
16 COMMON SOURCE. WOULDN’T YOU NEED THE SOURCE ITSELF TO DETERMINE
17 WHETHER OR NOT THE FIBERS ORIGINALLY SOURCED FROM IT, IS THAT
18 CLEAR?
19 A.: THAT’S CLEAR, AND THE ANSWER IS NOT NECESSARILY
20 BECAUSE, EVEN IF I HAD THE SOURCE, MY ANSWER WOULD BE THE SAME.
21 Q.: SO, IN OTHER WORDS, IF YOU WERE ABLE TO REMOVE A
22 FIBER FROM MY SUIT JACKET, AND YOU HAD MY SUIT JACKET, YOU COULD
23 LOOK AT THE FIBER AND NOT BE ABLE TO TELL US WHETHER OR NOT THE
24 FIBER THAT WE ALL SAW REMOVED FROM MY JACKET COMES FROM THE
25 JACKET?
26 A.: I COULD SAY THAT IT COULD HAVE COME FROM THAT
27 JACKET OR ANY OTHER JACKET THAT’S JUST LIKE THAT ONE.
28 Q.: AND WITH REGARD TO BLUE NYLON FIBERS, THAT’S A
.
7733
1 PRETTY COMMON FIBER, ISN’T IT?
2 A.: I DON’T KNOW HOW COMMON THIS PARTICULAR TYPE OF
3 BLUE NYLON IS.
4 Q.: DID YOU MAKE ANY EFFORTS TO DO THE RESEARCH TO
5 DETERMINE SO YOU COULD TELL THE JURY HOW COMMON THE FIBER WAS?
6 A.: WELL, I KNOW THAT THE MAJORITY OF NYLON THAT IS
7 PRODUCED IN THE UNITED STATES IS CARPET, AND THAT ABOUT TEN TO
8 18 PERCENT IS APPAREL. AND IF THIS IS AN APPAREL FIBER — IT’S
9 DEFINITELY NOT A CARPET FIBER. IF IT’S AN APPAREL FIBER, THEN
10 IT COULD BE RELATIVELY COMMON, YES.
11 Q.: DID YOU FIND ANY LIGHT GREEN FIBERS IN YOUR
12 INVESTIGATION?
13 MR. CLARKE: OBJECTION, BEYOND THE SCOPE.
14 THE COURT: OVERRULED. YOU MIGHT AS WELL COVER IT WHILE
15 THE WITNESS IS HERE.
16 YOU MAY ANSWER, MA’AM.
17 THE WITNESS: IN THIS PARTICULAR EXAMINATION I WAS ONLY
18 LOOKING FOR BLUE NYLON AND THAT RANGE OF COLOR.
19
20 BY MR. FELDMAN:
21 Q.: WHAT YOU’RE TELLING ME THEN I GUESS IS THAT THIS
22 PART OF YOUR, I’LL SAY INVESTIGATION, WAS LIMITED ONLY TO TRYING
23 TO SOURCE THOSE TWO SPECIFIC FIBERS, IS THAT RIGHT?
24 A.: YES.
25 Q.: WITH REGARD TO FIBERS, AND WITH REGARD TO BLUE
26 NYLON FIBERS, DO YOU KNOW WHAT THE SHREDABILITY IS?
27 A.: I’M NOT SURE WHAT YOU MEAN BY SHREDABILITY.
28 Q.: I’M SORRY. SHEDABILITY AS OPPOSED TO
.
7734
1 SHREDDABILITY. I’M SORRY, I’M NOT TALKING ABOUT SHREDDERS I’M
2 TALKING ABOUT SHEDDERS AND I’M NOT SAYING ANY OTHER WORDS AROUND
3 THAT.
4 A.: WELL, IF YOU MEAN DO I THINK THAT NYLON FIBERS
5 SHED, IS THAT WHAT YOU’RE ASKING?
6 Q.: I’M ASKING ARE YOU FAMILIAR WITH ANY STUDIES WHICH
7 REFLECT THE SHEDABILITY, MEANING HOW FREQUENT THE FIBERS SHED,
8 IN THE LITERATURE ON BLUE NYLON FIBERS?
9 A.: NOT BLUE NYLON SPECIFICALLY BUT —
10 Q.: WITH REGARD TO ANY LITERATURE.
11 I WAS ASKING YOU QUESTIONS ABOUT THE PARTICULAR
12 TESTS YOU WERE DOING. I THINK YOU TALKED ABOUT — OR I MAY HAVE
13 TALKED ABOUT MICROSPECTOMETRY. IS THERE A TEXT THAT YOU WOULD
14 RELY ON OR HAVE RELIED UPON IN YOUR TRAINING AND EXPERIENCE?
15 A.: REGARDING MICROSPECTROPHOTOMETRY?
16 Q.: NO, NOT MICROSPECTROPHOTOMETRY, MICRO — ALMOST HAD
17 IT — MICROSPECTOMETRY?
18 A.: I THINK YOU MUST MEAN MICROSPECTROPHOTOMETRY.
19 THAT’S THE ONE ABOUT THE COLOR, RIGHT?
20 Q.: I’M NOT TALKING ABOUT THE ONE THAT FAYE SPRINGER
21 HAS. I’M TALKING ABOUT THE ONE THAT YOU HAVE.
22 A.: THEN YOU’RE TALKING ABOUT INFRARED SPECTROSCOPY.
23 Q.: OKAY. WITH REGARD TO INFRARED SPECTROSCOPY, ANY
24 TEXTS?
25 A.: ANY TEXTS. WELL, I HAVE A — JUST ABOUT — WELL, I
26 HAVE TAKEN THE CLASSES IN INFRARED SPECTROSCOPY AND IT CAME WITH
27 A VERY LARGE BINDER, SO I HAVE THAT ENTIRE BINDER AND THAT CLASS
28 AT CALIFORNIA CRIMINALISTICS INSTITUTE. AND THEN WE ALSO HAVE
.
7735
1 "FORENSIC EXAMINATION OF FIBERS" WHICH TALKS ABOUT INFRARED
2 SPECTROSCOPY.
3 Q.: WE DISCUSSED WAS THAT — DO YOU RECALL THE AUTHORS
4 OF "FORENSIC EXAM OF FIBERS"?
5 A.: I DON’T OFF THE TOP OF MY HEAD.
6 Q.: HAVE YOU RECEIVED TRAINING FROM SKIP PALINECK?
7 A.: YES, I HAVE.
8 MR. CLARKE: EXCUSE ME. OBJECTION, RELEVANCE.
9 THE COURT: I THINK WE’VE COVERED THIS GROUND. SUSTAINED
10 ON THAT BASIS.
11
12 BY MR. FELDMAN:
13 Q.: WITH REGARD TO YOUR CONCLUSIONS, IS IT THE CASE
14 THAT YOU DID NOT FIND ANY OF THE SAME COLOR FIBERS AS FOUND IN
15 THE SHEET IN THE MOTOR HOME, OR DID YOU?
16 MR. CLARKE: OBJECTION, VAGUE.
17 THE COURT: SUSTAINED.
18
19 BY MR. FELDMAN:
20 Q.: WITH REGARD TO THE SPECTOMETRY TEST YOU JUST TOLD
21 ME I HAD WRONG, DID YOU PERFORM THAT TEST ON ALL 46 OF THE
22 FIBERS?
23 A.: NO, I DID NOT.
24 Q.: HOW MANY OF THE FIBERS DID YOU PERFORM IT ON?
25 A.: I CAN DOUBLE-CHECK IN MY NOTES, BUT I THINK I
26 SELECTED FOUR FROM THE HEADBOARD, FOUR OR FIVE FROM THE BENCH
27 SEATS, ONE FROM THE PASSENGER SEAT, AND I BELIEVE TWO FROM THE
28 COUCH.
7736
1 Q.: FOUR FROM THE HEAD BOARD.
2 SO WHERE WE SEE UP ON 163 WHERE IT SAYS "HEADBOARD
3 OF BED, NUMBER OF FIBERS 11, SHORT BLUE-GRAY NYLON," YOU ONLY
4 TESTED FOUR FIBERS, IS THAT RIGHT?
5 A.: THAT’S CORRECT.
6 MR. CLARKE: EXCUSE ME. OBJECTION, VAGUE, BY THE WORD
7 TEST.
8 THE COURT: REPHRASE IT AS TO WHICH TEST.
9
10 BY MR. FELDMAN:
11 Q.: WHICH TEST — DID YOU ONLY TEST — I’M SORRY.
12 WHICH TEST OR TESTS DID YOU PERFORM ON THE FOUR FIBERS THAT YOU
13 ACTUALLY TESTED THAT CAME FROM THE HEADBOARD?
14 A.: I DID THE INITIAL TEST OF THE INFRARED SPECTROSCOPY
15 ON FOUR OF THE FIBERS FROM THE HEADBOARD.
16 Q.: WHAT ABOUT THE OTHER SEVEN?
17 A.: I DIDN’T TEST THOSE.
18 Q.: OKAY.
19 SO THIS CHART DOESN’T INFER THAT THESE ARE TESTED.
20 IT JUST IS A NUMBER, RIGHT?
21 MR. CLARKE: OBJECTION, VAGUE AS TO TEST.
22 THE COURT: SUSTAINED.
23
24 BY MR. FELDMAN:
25 Q.: THIS CHART DOESN’T REFLECT ACCURATELY THE NUMBER OF
26 FIBERS THAT YOU SUBJECTED TO INFRARED TESTING, CORRECT?
27 MR. CLARKE: OBJECTION, ARGUMENTATIVE.
28 THE COURT: AS PHRASED. YOU CAN REPHRASE IT AND I’LL
.
7737
1 ALLOW IT, MR. FELDMAN.
2
3 BY MR. FELDMAN:
4 Q.: DOES THE CHART ACCURATELY REFLECT THE TRUE NUMBER
5 OF FIBERS THAT YOU SUBJECTED TO INFRARED TESTING?
6 A.: NO.
7 MR. CLARKE: SAME OBJECTION.
8 THE COURT: OVERRULED. THE ANSWER IS NO.
9 THE WITNESS: NO.
10
11 BY MR. FELDMAN:
12 Q.: SIMILARLY WITH REGARD TO THE BENCH SEAT, YOU
13 WROTE — I’M SORRY, DID YOU PREPARE THIS CHART?
14 A.: NO.
15 Q.: DO YOU KNOW WHO DID?
16 A.: I BELIEVE IT WAS SOMEONE IN THE DA’S TECHNICAL
17 UNIT.
18 Q.: DID YOU SEE IT BEFORE YOU CAME TO COURT?
19 A.: YES.
20 Q.: DID YOU POINT OUT THAT YOU DID NOT TEST BY INFRARED
21 OR ANY OTHER MANNER 26 OF THE FIBERS THAT APPEAR AT THE KITCHEN
22 BENCH SEAT AREA?
23 MR. CLARKE: OBJECTION, RELEVANCE, ALSO ARGUMENTATIVE AS
24 PHRASED.
25 THE COURT: SUSTAINED AS PHRASED.
26 MR. FELDMAN: I’M SORRY, JUDGE. ARGUMENTATIVE?
27 THE COURT: YES.
28 MR. FELDMAN: ALL RIGHT.
.
7738
1 Q.: DID YOU CALL TO ANYBODY’S ATTENTION THE EXISTENCE
2 OF THE NUMBER OF FIBERS THAT YOU ACTUALLY TESTED THAT CAME FROM
3 THE BENCH SEATS BY INFRARED MEANS?
4 MR. CLARKE: SAME OBJECTION.
5 THE COURT: NO.
6 YOU CAN ANSWER THAT, MA’AM.
7 THE WITNESS: YES. I HAVE A — IT’S SPELLED OUT IN MY
8 TRACE EVIDENCE REPORT REGARDING THESE ANALYSES, AND ALSO THE
9 REASON THAT ONLY A NUMBER OF THESE WERE TESTED IS BECAUSE WE
10 WERE UNDER VERY TIGHT TIME CONSTRAINTS AND HAD ONLY ONE DAY TO
11 TEST. IT WOULD BE IMPOSSIBLE TO TEST ALL 46 FIBERS IN THE TIME
12 THAT WE WERE ALLOTTED.
13
14 BY MR. FELDMAN:
15 Q.: WEREN’T YOU HERE LAST — MORE THAN A WEEK AGO?
16 A.: YES.
17 Q.: HOW LONG DOES IT TAKE TO DO A FIBER TEST?
18 A.: IT CAN TAKE SEVERAL HOURS.
19 Q.: WELL, HOW MUCH TIME DID IT ACTUALLY TAKE?
20 A.: IT TOOK 15 HOURS TO PREPARE THIS REPORT.
21 Q.: OKAY. AND THIS REPORT REFERS TO A REPORT THAT’S
22 DATED 7/2, IS THAT RIGHT?
23 A.: YES.
24 Q.: AND THE PREVIOUS REPORT YOU WROTE WAS THAT — WHEN
25 WAS THAT DATED, JUNE? WAS IT DATED IN JUNE?
26 A.: I BELIEVE I DO HAVE A REPORT FROM JUNE, JUNE 4TH OR
27 2ND.
28 Q.: SO IN THAT 30 OR SOME DATE PERIOD YOU DIDN’T SPEND
.
7739
1 ANY TIME ON THIS CASE TESTING THESE FIBERS; IS THAT CORRECT?
2 A.: THAT’S CORRECT.
3 Q.: BUT YOU DID SPEND THE LAST 24 OR 48 HOURS — OR I’M
4 SORRY, SPEND TIME WITHIN THE PAST WEEK OR SO, THE 15 HOURS YOU
5 JUST ARTICULATED, IS THAT RIGHT?
6 A.: YES.
7 Q.: SO YOU REALLY DID HAVE THE TIME, YOU JUST CHOSE NOT
8 TO USE IT?
9 MR. CLARKE: OBJECTION, ARGUMENTATIVE.
10 THE COURT: SUSTAINED.
11
12 BY MR. FELDMAN:
13 Q.: ON THE COUCH WHERE IT SAYS "EVIDENCE COLLECTED FROM
14 DEFENDANT’S MOTOR HOME" HOW MANY FIBERS DID YOU ACTUALLY TEST BY
15 MEANS OF INFRARED TESTING?
16 A.: I BELIEVE I TESTED TWO OF THOSE.
17 Q.: OKAY. I’M SORRY. YOU DID OR YOU DID NOT TEST THE
18 FIBERS IN 92?
19 A.: I DID TEST A SAMPLE OF THEM.
20 Q.: HOW MANY FIBERS DID YOU ACTUALLY TEST BY INFRARED
21 IN 92?
22 A.: TWO.
23 Q.: SO WHAT’S THE TOTAL NUMBER OF FIBERS YOU ACTUALLY
24 TESTED?
25 MR. CLARKE: OBJECTION, VAGUE.
26
27 BY MR. FELDMAN:
28 Q.: BY WAY OF INFRARED SPECTOMETRY FOR PURPOSES OF THIS
.
7740
1 HEARING?
2 MR. CLARKE: OBJECTION, VAGUE AS TO HEARING.
3 THE COURT: THIS TRIAL.
4 YOU CAN ANSWER THE QUESTION.
5 MR. CLARKE: ACTUALLY, NO. VAGUE AS TO THE CURRENT —
6 THE COURT: ALL RIGHT. JUST ASK THE QUESTION AGAIN.
7 MR. FELDMAN: SURE.
8 Q.: HOW MANY FIBERS DID YOU ACTUALLY TEST OF THE NUMBER
9 OF FIBERS THAT ARE REFLECTED IN 163?
10 MR. CLARKE: AGAIN, VAGUE AS TO TEST.
11 THE COURT: YOU’VE GOT TO MENTION THE SPECIFIC TEST, MR.
12 FELDMAN.
13 MR. FELDMAN: OKAY.
14 Q.: HOW MANY FIBERS DID YOU ACTUALLY TEST BY INFRARED
15 SPECTOMETRY OR INFRARED, EVEN IF THAT’S THE WRONG SPECT, FOR
16 PURPOSES OF PREPARING 163?
17 A.: FOURTEEN.
18 Q.: SO IS IT YOUR CUSTOM AND PRACTICE FOR PURPOSES OF
19 RENDERING AN OPINION IS TO ONLY TEST A SMALL PORTION OR A
20 PORTION OF THE FIBERS AND THEN TEST BY ANY MANNER OR MEANS YOU
21 CHOOSE?
22 MR. CLARKE: SAME OBJECTION.
23 THE COURT: OVERRULED.
24 YOU CAN EXPLAIN HOW YOU DO IT.
25
26 BY MR. FELDMAN:
27 Q.: AND THEN RENDER AN OPINION?
28 A.: TYPICALLY, IF I HAVE A LARGE NUMBER OF FIBERS ON AN
.
7741
1 ITEM AND I LOOK AT THEM MICROSCOPICALLY, THEN I WILL SELECT ONLY
2 A FEW TO ANALYZE WITH INFRARED SPECTROSCOPY.
3 Q.: I’M SORRY. AND YOU WILL THEN?
4 A.: SELECT ONLY A FEW TO ANALYZE BY INFRARED
5 SPECTROSCOPY.
6 Q.: BUT ISN’T THE POINT OF THE EXERCISE TO BE AS
7 ACCURATE AS YOU POSSIBLY CAN WITH REGARD TO THE IDENTIFICATION
8 OF EACH AND EVERY FIBER?
9 A.: YES.
10 Q.: AND YOU CAN’T BE PRECISE UNLESS YOU TEST EACH AND
11 EVERY FIBER, ISN’T THAT TRUE?
12 MR. CLARKE: OBJECTION, ARGUMENTATIVE.
13 THE COURT: SUSTAINED.
14
15 BY MR. FELDMAN:
16 Q.: ISN’T IT CORRECT THAT YOU CANNOT BE PRECISE UNLESS
17 YOU SUBJECT EACH AND EVERY FIBER TO THE SAME TESTS, BE THEY
18 MICROSPECTROPHOTOMETRY OR INFRARED OR MELTING POINT OR WHATEVER?
19 A.: YES.
20 Q.: BECAUSE EACH OF THOSE TESTS, IF THERE WAS A
21 DIFFERENT RESULT FOR A DIFFERENT FIBER, WOULD CONSTITUTE AN
22 EXCLUSION, IS THAT A FAIR STATEMENT?
23 A.: COULD.
24 Q.: AND YOU DON’T KNOW WHETHER YOU HAVE EXCLUSION UNTIL
25 YOU PERFORM THE TEST, ISN’T THAT RIGHT?
26 MR. CLARKE: OBJECTION, ARGUMENTATIVE.
27 THE COURT: SUSTAINED.
28 ///
.
7742
1 BY MR. FELDMAN:
2 Q.: IS IT FAIR TO SAY THAT YOU DON’T KNOW WHETHER OR
3 NOT YOU HAVE AN EXCLUSION UNLESS YOU SUBJECT ALL OF THE FIBERS
4 TO ALL OF THE SAME TESTS, BE THEY MICROSPECTROPHOTOMETRY,
5 INFRARED, MICROSCOPIC, MELTING POINT OR ANY OTHER?
6 A.: IT CERTAINLY IS BETTER BUT YOU HAVE TO — SOMETIMES
7 YOU HAVE TO SELECT WHAT YOU’RE GOING TO BE ABLE TO DO JUST BASED
8 ON THE TIME THAT YOU HAVE ALLOTTED TO DO IT.
9 Q.: SO YOU’RE SAYING THE TIME CAN ADVERSELY AFFECT YOUR
10 SCIENTIFIC CONCLUSIONS?
11 MR. CLARKE: OBJECTION, ARGUMENTATIVE.
12 THE COURT: SUSTAINED.
13
14 BY MR. FELDMAN:
15 Q.: IS IT THE CASE THAT IN YOUR VIEW TIME CAN IMPOSE
16 CONSTRAINTS WHICH MAKE IT IMPOSSIBLE FOR YOU TO RENDER ACCURATE
17 SCIENTIFIC OPINIONS?
18 MR. CLARKE: SAME OBJECTION.
19 THE COURT: SAME RULING, SUSTAINED.
20
21 BY MR. FELDMAN:
22 Q.: WITH REGARD TO THE INFRARED DEVICE — I’M SORRY.
23 IT’S CORRECT, ISN’T IT, THAT THAT INSTRUMENT IS
24 ABLE TO GIVE YOU THE CHEMICAL MAKEUP OF A PARTICULAR FIBER?
25 A.: YES.
26 Q.: AND IT HAS TO DO WITH THE CHEMICALS THAT ARE USED
27 TO MAKE THE FIBER, CORRECT?
28 A.: YES.
.
7743
1 MR. CLARKE: OBJECTION, ASKED AND ANSWERED.
2 THE COURT: I THINK WE’VE COVERED THE GROUND BUT I’LL SEE
3 WHERE WE’RE GOING. THE ANSWER WAS YES. NEXT QUESTION.
4
5 BY MR. FELDMAN:
6 Q.: THERE IS NO FINGERPRINT THAT ONE CAN GATHER FROM
7 THE TYPES OF TESTING INFRARED OR OTHERWISE IN FIBERS; IS THAT
8 CORRECT?
9 A.: I’M NOT SURE THAT I UNDERSTAND YOUR QUESTION.
10 Q.: YOU UNDERSTAND AT LEAST CONCEPTUALLY THE IDEA OF A
11 FINGERPRINT AND A MATCH, IS THAT RIGHT?
12 A.: YES.
13 Q.: IS THERE ANY TEST IN THE AREA OF FIBERS THAT WOULD
14 ALLOW YOU TO GET A PRINTOUT THAT WOULD BE CONSIDERED TO BE A
15 FINGERPRINT FOR A PARTICULAR CHEMICAL?
16 A.: WELL, TYPICALLY THE INFRARED SPECTROMETER IS
17 CONSIDERED A CHEMICAL FINGERPRINT, SO THAT SPECTRE THAT’S
18 PRODUCED BY THE INSTRUMENT DEFINITIVELY IDENTIFIES THAT
19 CHEMICAL.
20 Q.: I’M SORRY. THAT CHEMICAL OR THAT COLOR?
21 A.: THAT CHEMICAL.
22 Q.: ALL RIGHT.
23 AND HOW MANY CHEMICALS WOULD MAKE UP, FOR INSTANCE,
24 A NYLON FIBER?
25 MR. CLARKE: OBJECTION, ASKED AND ANSWERED.
26 THE COURT: OVERRULED.
27 YOU CAN ANSWER.
28 THE WITNESS: TYPICALLY THEY START WITH TWO.
.
7744
1 BY MR. FELDMAN:
2 Q.: AND IN THIS CASE DID YOU IDENTIFY IN THE BLUE NYLON
3 FIBERS THAT YOU EVALUATED THESE SPECIFIC CHEMICALS?
4 A.: YES.
5 Q.: AND EVEN WITH THOSE IDENTIFICATIONS YOU CAN ONLY
6 SAY THE FIBERS COULD COME FROM A COMMON SOURCE BUT THEY COULD
7 ALSO NOT COME FROM A COMMON SOURCE?
8 MR. CLARKE: OBJECTION, ASKED AND ANSWERED.
9 THE COURT: SUSTAINED.
10 MR. FELDMAN: NO FURTHER QUESTIONS.
11 THE COURT: ANYTHING FURTHER, MR. CLARKE?
12 MR. CLARKE: BRIEFLY, YOUR HONOR, IF I MIGHT.
13
14 REDIRECT EXAMINATION +
15 BY MR. CLARKE:
16 Q.: AS FAR AS COLOR, MS. DELANEY, IS THE COLOR OF THESE
17 FIBERS SHOWN IN THE PHOTOGRAPHS? AND I’M REFERRING TO THE
18 COLORS SHOWN IN EXHIBIT 164.
19 A.: YES, THEY ARE.
20 Q.: SOME PEOPLE MIGHT CALL THAT BLUE?
21 A.: YES.
22 Q.: SOME PEOPLE MIGHT CALL IT BLUE-GRAY.
23 A.: YES.
24 Q.: IS THE LABEL IMPORTANT OR IS THE COMPARISON
25 IMPORTANT?
26 A.: IT’S THE COMPARISON BY EACH EXAMINER THAT’S
27 IMPORTANT.
28 Q.: NOW, THE CHART, I THINK THAT’S ONE EXHIBIT EARLIER,
.
7745
1 163, THE VARIOUS TESTS YOU PERFORMED ON ALL OF THE FIBERS
2 INCLUDED A VISUAL COMPARISON?
3 A.: YES.
4 Q.: MICROSCOPIC COMPARISON?
5 A.: YES.
6 Q.: AND THAT’S AS TO ALL 46 OF THE EVIDENCE FIBERS FROM
7 ITEM 79; IS THAT CORRECT?
8 A.: THAT’S CORRECT.
9 Q.: ANYTHING ABOUT THOSE RESULTS AT ALL THAT EXCLUDED
10 THOSE FIBERS, ANY OF THEM, AS HAVING COME FROM THE SAME SOURCE
11 AS ITEMS 92, 108 AND 115?
12 A.: NO.
13 Q.: AS FAR AS EXCLUSION FROM MICROSCOPIC COMPARISON,
14 FIRST OF ALL, CAN THAT HAPPEN?
15 A.: YES.
16 Q.: SO IT DOESN’T TAKE A MICROSPECTROPHOTOMETER TO
17 EXCLUDE A FIBER AS HAVING THE SAME SOURCE, DOES IT?
18 A.: NO.
19 Q.: IN FACT, IN THIS CASE DID YOU MAKE EXCLUSIONS BASED
20 ON SIMPLY YOUR VISUAL COMPARISONS? NOT TALKING ABOUT THE
21 EVIDENCE HERE ELICITED ON 163 BUT ANY OF THE WORK YOU’VE DONE IN
22 THIS CASE.
23 MR. FELDMAN: OBJECTION, VAGUE.
24 THE COURT: OVERRULED.
25 THE WITNESS: IN GENERAL, YES.
26
27 BY MR. CLARKE:
28 Q.: BY VISUAL METHODS?
.
7746
1 A.: YES.
2 Q.: DID YOU ALSO MAKE EXCLUSIONS IN THIS CASE IN ANY OF
3 THE WORK YOU’VE DONE BASED ON MICROSCOPIC COMPARISONS?
4 A.: NO.
5 Q.: OKAY. WHAT DO YOU MEAN? WHAT’S THE DIFFERENCE
6 BETWEEN THE VISUAL AND THE MICROSCOPIC, SO WE’RE CLEAR?
7 A.: WELL, IF I — IF I HAD ALREADY LOOKED AT THE FIBERS
8 AND VISUALLY ONE OF THEM WAS RED AND ONE OF THEM WAS GREEN, I
9 WOULD NEVER GO SO FAR AS TO DO A MICROSCOPIC COMPARISON BETWEEN
10 THEM BECAUSE THEY ARE OBVIOUSLY DIFFERENT.
11 Q.: ALL RIGHT.
12 Q.: ALL OF THE DATA, AND YOU KEEP DATA WHEN YOU PERFORM
13 THESE VARIOUS TYPES OF EXAMINATIONS, CORRECT?
14 A.: RIGHT.
15 Q.: INCLUDES YOUR NOTES?
16 A.: YES.
17 Q.: INCLUDES YOUR PHOTOGRAPHS?
18 A.: YES.
19 Q.: ARE THERE ACTUAL RESULTS FROM THE INFRARED DEVICE
20 THAT TALKS ABOUT CHEMICALS?
21 A.: YES.
22 Q.: ARE THEY SOMETHING THAT PEOPLE CAN LOOK AT WHO ARE
23 TRAINED AND EXPERIENCED IN INTERPRETING THEM?
24 A.: YES.
25 Q.: ARE THOSE ALL AVAILABLE FOR REVIEW BY ANYONE
26 QUALIFIED TO REVIEW THEM?
27 A.: YES.
28 Q.: THIS MELTING POINT TEST, DOES IT ACTUALLY DESTROY
.
7747
1 THE FIBER IN ANY WAY?
2 A.: YES.
3 Q.: WHY DON’T YOU USE THAT TEST THEN?
4 A.: WELL, TYPICALLY WE TRY TO KEEP THE MAJORITY OF THE
5 EVIDENCE IN ITS STATE THAT WE FOUND IT IN SO THAT IT CAN BE
6 RETESTED IF NECESSARY.
7 Q.: IS THAT SO IF THERE’S ANY DISPUTE ABOUT THE
8 ACCURACY OF YOUR RESULTS ANOTHER EXPERT CAN LOOK AT THEM?
9 A.: YES.
10 Q.: IS THAT PART OF THE SCIENTIFIC METHOD?
11 A.: YES.
12 Q.: BY THE WAY, DURING — AND I THINK YOU HAD DESCRIBED
13 THE FACT THAT YOU DID NOT WORK ON THIS CASE FULL-TIME SINCE YOU
14 WERE FIRST ASSIGNED TO IT; IS THAT CORRECT?
15 A.: THAT’S CORRECT.
16 Q.: WERE THERE OTHER CRIMES IN SAN DIEGO YOU HAD TO
17 PERFORM INVESTIGATIONS AND EXAMINATIONS IN?
18 A.: YES.
19 MR. CLARKE: THANK YOU. NO FURTHER QUESTIONS.
20 THE COURT: ALL RIGHT.
21 ANYTHING FURTHER, MR. FELDMAN?
22
23 RECROSS-EXAMINATION +
24 BY MR. FELDMAN:
25 Q.: DID YOU HAVE A CHANCE TO FINISH THAT OTHER
26 INVESTIGATION OR INVESTIGATIONS MR. CLARKE JUST ASKED YOU ABOUT?
27 A.: I AM WORKING ON THOSE OTHER CASES.
28 Q.: WE’RE GLAD YOU’RE DOING THAT, MA’AM.
.
7748
1 WITH REGARD TO MICROSPECTROPHOTOMETRY AGAIN, THAT’S
2 A TEST THAT COULD HAVE BEEN USED TO EITHER INCLUDE OR EXCLUDE
3 THE BLUE FIBERS, RIGHT?
4 A.: YES.
5 Q.: AND IT WASN’T USED IN THIS CASE?
6 A.: THAT’S CORRECT.
7 Q.: EVEN THOUGH YOU HAD USED IT WITH REGARD TO OTHER
8 FIBERS IN THE CASE WHEN YOU WENT TO SACRAMENTO?
9 A.: THAT’S CORRECT.
10 Q.: WITH REGARD TO FLUORESCENCE, YOU DIDN’T USE
11 FLUORESCENCE IN THIS CASE ON THOSE FIBERS, DID YOU?
12 MR. CLARKE: OBJECTION, ASKED AND ANSWERED.
13 THE COURT: WE’VE COVERED THIS.
14
15 BY MR. FELDMAN:
16 Q.: YOU SAID YOU DIDN’T USE THE MELTING POINT TEST
17 BECAUSE IT WAS DESTRUCTIVE?
18 MR. CLARKE: SAME OBJECTION.
19 THE COURT: COVERED THIS.
20 MR. FELDMAN: YOUR HONOR —
21 THE COURT: WE’VE COVERED IT, COUNSEL, AD NAUSEAM. NEXT
22 QUESTION.
23
24 BY MR. FELDMAN:
25 Q.: THERE WERE 46 FIBERS, RIGHT?
26 A.: YES.
27 Q.: YOU EVALUATED ONLY A SMALL PERCENTAGE OF THOSE
28 FIBERS, RIGHT?
.
7749
1 MR. CLARKE: OBJECTION, ASKED AND ANSWERED.
2 THE COURT: WE’VE COVERED THAT BUT I AM GOING TO ALLOW
3 ONE MORE AREA AND SEE WHERE IT GOES.
4 YOU MAY ANSWER THAT, MS. DELANEY.
5 THE WITNESS: I’M SORRY. COULD YOU REPEAT THAT?
6
7 BY MR. FELDMAN:
8 Q.: YOU SAID THAT THERE WERE 46 FIBERS, 46 NAVY BLUE OR
9 BLUE FIBERS, RIGHT?
10 A.: YES.
11 Q.: YOU TOLD US YOU ONLY TESTED A SMALL PERCENTAGE OF
12 THOSE, RIGHT?
13 MR. CLARKE: EXCUSE ME. OBJECTION, VAGUE.
14 THE COURT: THE WORD "TESTING" IS GETTING YOU IN TROUBLE,
15 MR. FELDMAN.
16 MR. FELDMAN: I’M SORRY. YOU’RE RIGHT.
17 THE COURT: AND IT LOOKS LIKE WE ARE GOING TO COVER THE
18 SAME GROUND BUT I’LL ALLOW TO ASK THE QUESTION.
19 MR. FELDMAN: I’M TRYING NOT.
20 Q.: OF THE 46 FIBERS THAT YOU SUBJECTED TO INFRARED OR
21 OTHER TYPE OF TESTING ONLY A CERTAIN PERCENTAGE WERE TESTED,
22 CORRECT?
23 MR. CLARKE: EXCUSE ME. THAT’S VAGUE AS PHRASED.
24 THE COURT: DO YOU UNDERSTAND IT?
25 THE WITNESS: YOU MEAN I ONLY TESTED A FEW OF THE FIBERS
26 WITH INFRARED SPECTOMETRY; IS THAT CORRECT?
27
28 ///
.
7750
1 BY MR. FELDMAN:
2 Q.: THANK YOU. YES.
3 A.: YES. THAT IS CORRECT.
4 Q.: WITH REGARD TO THE REMAINING FIBERS, THERE’S HOW
5 MANY?
6 A.: LET’S SEE, 32.
7 Q.: YOU ON THE CHART INDICATED YOU THOUGHT THAT THEY
8 SHARED A COMMON SOURCE, RIGHT?
9 A.: YES.
10 Q.: SO YOU COULD HAVE TAKEN ONE AND SUBJECTED IT TO A
11 MELTING POINT TEST WITHOUT ANYTHING REALLY BEING DESTROYED,
12 RIGHT?
13 A.: WELL, IT WOULD HAVE DESTROYED THAT FIBER.
14 Q.: BUT YOU DIDN’T EVEN CONSIDER IT IN YOUR EVALUATION,
15 DID YOU?
16 MR. CLARKE: EXCUSE ME, OBJECTION. I THINK THAT CALLS
17 FOR SPECULATION.
18 THE COURT: OVERRULED.
19 YOU CAN ANSWER IT.
20 THE WITNESS: NO, WE DO NOT DO MELTING POINTS IN OUR
21 LABORATORY.
22
23 BY MR. FELDMAN:
24 Q.: EVEN THOUGH MELTING POINT COULD RESULT IN AN
25 EXCLUSION?
26 MR. CLARKE: OBJECTION, ASKED AND ANSWERED, ALSO CALLS
27 FOR SPECULATION.
28 THE COURT: SUSTAINED.
.
7751
1 MR. FELDMAN: NO FURTHER QUESTIONS.
2 THE COURT: OKAY. MA’AM, THANK YOU VERY MUCH FOR COMING
3 IN. YOU’RE FREE TO LEAVE THESE PROCEEDINGS. REMEMBER, YOU’RE
4 STILL UNDER AN ADMONITION NOT TO DISCUSS YOUR TESTIMONY UNTIL
5 THE MATTER’S CONCLUDED, OTHER THAN AS IT RELATES TO YOUR
6 OFFICIAL DUTIES.
7 YOU CAN GIVE THOSE BOTH TO MR. DUSEK OR TO MR.
8 CLARKE ON YOUR WAY BY.
9 MR. FELDMAN: SUBJECT TO RECALL, PLEASE.
10 THE WITNESS: DID HE SAY SUBJECT TO RECALL?
11 THE COURT: THAT’S WHAT HE SAID.
12 THE COURT: YOU WERE HOPING, WEREN’T YOU?
13 ALL RIGHT. MR. CLARKE.
14 MR. CLARKE: JENNIFER SHEN, YOUR HONOR.
15 THE COURT: ALL RIGHT.
16
17 -JENNIFER SHEN, +
18 PLAINTIFF’S WITNESS, PREVIOUSLY HAVING BEEN SWORN, TESTIFIED
19 FURTHER AS FOLLOWS:
20
21 THE COURT: YOU’RE STILL UNDER OATH.
22 ALL RIGHT, MR. CLARKE.
23 MR. CLARKE: THANK YOU, YOUR HONOR.
24
25 DIRECT EXAMINATION +
26 BY MR. CLARKE:
27 Q.: MS. SHEN, HOW ARE YOU TODAY?
28 A.: GOOD, THANK YOU.
.
7752
1 Q.: I’D LIKE TO TAKE YOU BACK, AND I BELIEVE THAT YOU
2 HAD STATED WHEN YOU WERE HERE LAST THAT YOU HAD BEEN IN THE
3 DEFENDANT’S RESIDENCE AT SOME POINT?
4 A.: YES.
5 Q.: WHEN WAS THAT?
6 A.: I BELIEVE THAT WAS THE EVENING OF FEBRUARY 13TH,
7 2002.
8 Q.: WHY WERE YOU THERE THAT DAY?
9 A.: I WAS THERE SPECIFICALLY TO PROCESS THE DEFENDANT’S
10 SHOES FOR TRACE EVIDENCE.
11 Q.: DID YOU THEN PROCESS SOME SHOES?
12 A.: I DID. WE TAPE LIFTED ALL THE SOLES OF ALL OF THE
13 DIFFERENT SHOES.
14 Q.: HOW MANY PAIRS OF SHOES WERE THERE?
15 A.: TWENTY-FIVE.
16 Q.: WHY DID YOU TAPE LIFT THEM?
17 A.: WE WERE LOOKING SPECIFICALLY FOR FOREIGN HAIRS AND
18 FIBERS THAT MIGHT BE SIMILAR TO THE VICTIM HERSELF AND HER
19 ENVIRONMENT OR HER BEDROOM CARPETING.
20 Q.: DID YOU INVENTORY THE VARIOUS SHOES?
21 A.: I DID.
22 Q.: WERE THEY FOUND IN DIFFERENT LOCATIONS IN THE
23 HOUSE?
24 A.: YES.
25 Q.: WERE ANY OF THOSE SHOES BOOTS?
26 A.: YES.
27 Q.: ALL RIGHT.
28 CAN YOU DESCRIBE THAT PAIR, PLEASE?
.
7753
1 A.: THERE WAS ONE PAIR OF BROWN BOOTS.
2 Q.: WHERE WAS IT LOCATED?
3 A.: THEY WERE LOCATED IN THE MASTER BEDROOM CLOSET.
4 Q.: WAS THAT THE ONLY PAIR OF BOOTS YOU FOUND IN THE
5 HOUSE?
6 A.: YES.
7 Q.: DID YOU FIND A PAIR OF BLACK BOOTS IN THE HOUSE?
8 A.: NO.
9 Q.: A PAIR OF BLACK COWBOY BOOTS?
10 A.: NO.
11 Q.: ALL RIGHT.
12 I’D LIKE TO TURN YOUR ATTENTION, IF I COULD, TO ANY
13 FURTHER EXAMINATIONS OF FIBERS BEYOND WHAT YOU TESTIFIED TO WHEN
14 YOU WERE HERE LAST, ALL RIGHT?
15 A.: OKAY.
16 Q.: WERE YOU ASKED — OR, IN FACT, DID YOU EXAMINE TAPE
17 LIFTS FROM A TOYOTA S. U. V.?
18 A.: YES, I DID.
19 Q.: WERE THOSE ITEMS OR THOSE TAPE LIFTS LABELED AS AN
20 ITEM NO. 21?
21 A.: THERE WERE SOME TAPE LIFTS THAT WERE TAKEN FROM AN
22 ARTICLE THAT WAS IN THE S. U. V. AND THOSE TAPE LIFTS WERE
23 LABELED ITEM 21.
24 Q.: ALL RIGHT.
25 WAS THERE A PARTICULAR ITEM IDENTIFIED TO YOU AS AN
26 ITEM 21B, A TOWEL?
27 A.: YES.
28 Q.: WAS IT IDENTIFIED AS HAVING COME FROM INSIDE A
.
7754
1 LAUNDRY BAG?
2 A.: YES.
3 Q.: INSIDE THE TOYOTA S. U. V.?
4 A.: YES.
5 Q.: DID YOU EXAMINE TAPE LIFTS FROM THAT SPECIFIC
6 TOWEL?
7 A.: YES, I DID.
8 Q.: WAS THAT IDENTIFIED AS HAVING COME FROM THE CARGO
9 AREA OF THE S. U. V.?
10 A.: I BELIEVE SO.
11 Q.: IN EXAMINING THE TAPE LIFTS FROM THAT TOWEL, ITEM
12 21B, DID YOU DISCOVER ANY FIBERS OF NOTE TO YOU?
13 MR. FELDMAN: OBJECTION, FOUNDATION AND CHAIN.
14 THE COURT: OVERRULED.
15 MR. FELDMAN: AS TO THIS ONE.
16 THE COURT: OVERRULED.
17 MR. CLARKE: DO YOU REMEMBER THE QUESTION?
18 THE COURT: WOULD YOU PLEASE RESTATE IT?
19
20 BY MR. CLARKE:
21 Q.: SURE. IN YOUR EXAMINATION OF TAPE LIFTS FROM ITEM
22 21B, THE TOWEL, DID YOU OBSERVE ANY FIBERS THAT WERE SIGNIFICANT
23 TO YOU?
24 A.: YES.
25 Q.: WHAT?
26 A.: I NOTED ON MY EXAMINATION OF THE TAPE LIFTS TAKEN
27 FROM THE TOWEL THAT THERE WERE SEVERAL LONG ORANGE BRIGHTLY
28 COLORED FIBERS.
7755
1 Q.: WHY WERE THOSE SIGNIFICANT TO YOU AT THAT POINT?
2 A.: WELL, MY INITIAL EXAMINATION OF THE TOWEL, I JUST
3 NOTED THEM BECAUSE THEY WERE UNUSUAL IN COLOR AND THERE WERE
4 SEVERAL OF THEM.
5 AS MY EXAMINATIONS PROGRESSED, AND AS I WENT
6 THROUGH OTHER ITEMS OF EVIDENCE, I FOUND THEM TO BE SIGNIFICANT
7 BECAUSE THEY WERE SIMILAR TO THE ORANGE FIBERS THAT I WAS
8 FINDING IN OTHER PLACES.
9 Q.: LET’S SEE IF WE CAN GET THE CHRONOLOGY A LITTLE
10 CLEARER.
11 WHEN YOU FIRST EXAMINED THESE TAPE LIFTS FROM ITEM
12 21B, WHEN WAS THAT IN TERMS OF THE VARIOUS EXAMINATIONS YOU
13 PERFORMED IN THIS CASE? IS THAT QUESTION CLEAR?
14 A.: YES.
15 Q.: ALL RIGHT.
16 A.: WHEN I EXAMINED THE ITEMS REMOVED FROM THE S. U.
17 V., MY INITIAL EXAMINATION I BELIEVE WAS IN FEBRUARY, THE END OF
18 FEBRUARY. WHEN I WENT BACK AND LOOKED AT THOSE TAPE LIFTS A
19 SECOND TIME, THAT EXAMINATION WAS IN JULY.
20 Q.: SO JUST SO WE’RE CLEAR, WHEN YOU FIRST LOOKED AT
21 THE TAPE LIFTS, WAS THAT BEFORE YOU HAD EXAMINED ANYTHING OR
22 EVEN, IN FACT, WAS THE BODY OF DANIELLE VAN DAM RECOVERED BY THE
23 TIME YOU FIRST EXAMINED THESE TAPE LIFTS?
24 A.: I BELIEVE THAT IT WAS NOT RECOVERED AT THAT TIME,
25 AND I LOOKED AT THOSE TAPE LIFTS PRIOR TO LOOKING AT ANYTHING
26 FROM HER BODY.
27 Q.: THEN CAME A TIME, AND YOU’VE PREVIOUSLY TESTIFIED,
28 ABOUT EXAMINING ORANGE FIBERS, INCLUDING ONE FROM THE NECKLACE
.
7756
1 OF DANIELLE VAN DAM’S BODY, CORRECT?
2 A.: CORRECT.
3 Q.: NOW THE TAPE LIFTS IN 21B, FROM THE TOWEL, DID YOU
4 THEN RE-EXAMINE THOSE, I THINK YOU SAID IN JULY?
5 A.: YES, I DID.
6 Q.: SO RECENTLY?
7 A.: YES.
8 Q.: WHEN YOU LOOKED AT THEM AGAIN THIS MONTH, WHY WERE
9 THEY SIGNIFICANT TO YOU?
10 A.: WHEN I EXAMINED THOSE TAPE LIFTS THE SECOND TIME,
11 SINCE I HAVE LOOKED AT SEVERAL OTHER ITEMS THAT HAVE THESE
12 ORANGE FIBERS ON THEM, I RECOGNIZE THEM, THEY LOOK FAMILIAR TO
13 ME, AND SO THEY WERE SIGNIFICANT IN THAT I HAD SEEN THEM BEFORE
14 IN OTHER PLACES.
15 Q.: WHERE HAD YOU SEEN THEM BEFORE?
16 A.: THEY LOOKED SIMILAR TO ME TO THE FIBERS THAT I HAD
17 FOUND, THE FIBER ON THE NECKLACE, ITEM 120 FROM THE VICTIM’S
18 NECK, THEY LOOKED SIMILAR TO THE ORANGE FIBERS THAT I HAD SEEN
19 IN THE DEFENDANT’S LAUNDRY, BOTH IN THE WASHING MACHINE, ON TOP
20 OF THE DRYER, IN THE DRYER, AND ALSO LOOKED SIMILAR TO THE
21 ORANGE FIBERS THAT I HAD FOUND ON THE PILLOWCASE FROM THE
22 BEDDING TAKEN FROM THE DEFENDANT’S BEDROOM.
23 Q.: AND I’D LIKE TO SHIFT YOUR ATTENTION TO ANY OTHER
24 ITEMS THAT YOU EXAMINED THIS MONTH HERE IN JULY AND ASK IF YOU
25 FOUND ANY ORANGE FIBERS IN ANY OTHER AREAS RELATING TO THE S. U.
26 V., THE TOYOTA.
27 A.: YES. I ALSO RE-EXAMINED THE TAPE LIFTS TAKEN FROM
28 THE INSIDE SURFACES OF THE TOYOTA, AND THERE WERE 17 OF THEM.
.
7757
1 THEY WERE USED TO COLLECT TRACE EVIDENCE FROM THE INTERIOR
2 SURFACES. FOR INSTANCE, THE SEATS AND THE ARMREST, ET CETERA.
3 SO I REVIEWED THOSE TAPE LIFTS AND LOOKED FOR THOSE ORANGE
4 FIBERS ON THOSE TAPE LIFTS AS WELL.
5 Q.: WERE THESE TAPE LIFTS FROM THE INTERIOR OF THE S.
6 U. V. IDENTIFIED AS AN ITEM NO. 35?
7 A.: YES.
8 Q.: DID YOU, IN FACT, FIND IN YOUR RE-EXAMINATION OF
9 THE ITEM NO. 35, TAPE LIFTS FROM THE INTERIOR OF THE S. U. V.
10 ANY OTHER ORANGE FIBERS?
11 A.: YES, I DID.
12 Q.: FROM WHAT LOCATION?
13 A.: I FOUND AN ORANGE FIBER IN THE FRONT PASSENGER
14 SEAT. I FOUND SEVERAL FIBERS ON THE REAR SEAT, AND I FOUND
15 ORANGE FIBERS ON THE REAR PASSENGER ARMREST.
16 Q.: AS A RESULT OF OBSERVING THESE FIBERS, DID YOU THEN
17 CONDUCT A MORE FORMAL COMPARISON OF THOSE FIBERS FROM THE S. U.
18 V., BOTH ITEMS 21 AND 35, TO ANY SAMPLES THAT YOU HAD DESCRIBED
19 PREVIOUSLY IN YOUR TESTIMONY?
20 A.: YES, I DID.
21 Q.: TELL US ABOUT THAT.
22 A.: AFTER I EXAMINED THE TAPE LIFTS FROM THE TOWEL, AND
23 COLLECTED THE FIBERS THAT I WANTED TO — THE ORANGE FIBERS THAT
24 I WANTED TO EXAMINE FROM THE TOWEL, I DID A COMPARISON WITH THE
25 FIBER FROM THE VICTIM’S NECKLACE, AND I DID A COMPARISON WITH
26 THE FIBERS TAKEN FROM THE PILLOWCASE IN THE BEDROOM.
27 Q.: DID THAT INCLUDE A VISUAL EXAMINATION?
28 A.: YES.
.
7758
1 Q.: DID IT INCLUDE A MICROSCOPIC EXAMINATION?
2 A.: YES.
3 Q.: DID IT INCLUDE AN INFRARED CHEMICAL EXAMINATION?
4 A.: YES.
5 Q.: WITH WHAT RESULTS?
6 A.: I FOUND THAT THE FIBERS REMOVED FROM THE BLUE TOWEL
7 TAKEN OUT OF THE S. U. V. WERE SIMILAR IN ALL THE WAYS THAT I
8 TESTED TO THE FIBERS TAKEN FROM THE PILLOWCASE ON THE
9 DEFENDANT’S BEDDING AND TO THE FIBER TAKEN FROM THE NECKLACE
10 FROM AROUND THE VICTIM’S NECK.
11 Q.: LET’S SEPARATE THEM OUT IF I CAN — IF WE CAN.
12 ITEM NO. 21B, THE BLUE TOWEL ORANGE FIBERS, COULD YOU TELL US
13 HOW MANY THERE WERE, FIRST OF ALL?
14 A.: I BELIEVE I FOUND TEN.
15 Q.: AND DID YOU COMPARE THOSE TEN BY THESE I BELIEVE
16 THREE BASIC METHODS THAT WE’VE DESCRIBED TO THE ORANGE FIBER IN
17 THE NECKLACE AS WELL AS THE ORANGE FIBERS IN THE DEFENDANT’S BED
18 AND FROM HIS HOME?
19 A.: I EXAMINED ALL TEN OF THE FIBERS AND THEN I TOOK A
20 REPRESENTATIVE SAMPLE OF THOSE AND DID A ANALYSIS AND
21 COMPARISON.
22 Q.: REPRESENTATIVE SAMPLE, WHAT DO YOU MEAN?
23 A.: I EXAMINED EACH AND EVERY ONE OF THEM
24 MICROSCOPICALLY, AND THEN I EXAMINED FOUR OF THE TEN CHEMICALLY,
25 USING THE INFRARED ANALYSIS, AND THEN I DID A COMPARISON WITH
26 TWO OR THREE OF THEM I BELIEVE MICROSCOPICALLY TOGETHER ON A
27 COMPARISON MICROSCOPE.
28 Q.: WITH REGARD TO THOSE VARIOUS TESTS THAT YOU
.
7759
1 PERFORMED THEN, WERE YOUR RESULTS SUCH THAT THE FIBERS THAT YOU
2 OBTAINED FROM 21B, THE TOWEL, WERE OR WERE NOT CONSISTENT WITH
3 THE FIBERS TAKEN FROM THE NECKLACE AND THE BEDDING?
4 A.: THEY WERE CONSISTENT.
5 Q.: NOW, LET’S TALK IF WE COULD ABOUT THE OTHER FIBERS
6 YOU OBTAINED FROM THE INTERIOR SURFACES OF THE TOYOTA, ITEM NO.
7 35.
8 WHAT TYPE OF RESULTS DID YOU OBTAIN FROM YOUR
9 EXAMINATION AND COMPARISON OF THEM?
10 A.: I DID THE SAME TYPE OF ANALYSIS ON THE FIBERS FROM
11 ITEM 35. I LOOKED AT EACH OF THEM VISUALLY AND MICROSCOPICALLY
12 AND THEN I PICKED A REPRESENTATIVE SAMPLE OF THEM TO RUN
13 CHEMICALLY ON INFRARED. AND HOW I DID THAT IS I TOOK FIBERS
14 FROM EACH OF THE DIFFERENT AREAS THAT I FOUND THEM SO THAT I
15 WOULD HAVE A REPRESENTATIVE SAMPLE FROM EACH DIFFERENT AREA IN
16 THE CAR THAT THE FIBERS WERE PRESENT. AND THEN I DID A
17 COMPARISON BETWEEN THOSE FIBERS MICROSCOPICALLY AND THE FIBERS
18 FROM 21B, WHICH IS THE TOWEL, TO SHOW THAT THEY WERE INDEED
19 SIMILAR TO EACH OTHER.
20 Q.: AND WERE THEY?
21 A.: YES, THEY WERE.
22 Q.: I BELIEVE WHEN YOU PREVIOUSLY TESTIFIED ABOUT
23 ORANGE FIBERS, INCLUDING THE NECKLACE FIBER, THE BEDDING FIBER
24 AND I THINK ALSO PERHAPS THE LAUNDRY ROOM AS WELL, YOU HAD
25 DESCRIBED THESE ORANGE FIBERS AS, AND I CAN’T REMEMBER THE TERM,
26 BUT SOMETHING LIKE DECOMPOSED, DETERIORATED, SOMETHING LIKE
27 THAT?
28 A.: YES.
.
7760
1 Q.: IS THAT CORRECT?
2 A.: YES.
3 Q.: WHAT WAS THAT DESCRIPTION, INSTEAD OF USING MY
4 WORDS?
5 A.: I PROBABLY USED ALL OF THEM, BUT WHAT I WAS TRYING
6 TO CONVEY IS THAT THE FIBERS ARE VERY DAMAGED.
7 Q.: IN TERMS OF THAT DAMAGED STATE, WHAT ABOUT THE
8 FIBERS THAT YOU HAVE MOST RECENTLY EXAMINED IN THE TOYOTA BOTH
9 FROM THE TOWEL AS WELL AS FROM THE INTERIOR SURFACES?
10 A.: THEY ALSO HAD SIMILAR CHARACTERISTICS.
11 Q.: CAN YOU DESCRIBE FOR US THE NUMBER OF FIBERS FROM
12 EACH OF THE LOCATIONS ON THE INTERIOR SURFACES, ITEM NO. 35?
13 CAN YOU TELL US HOW MANY OF THESE ORANGE FIBERS AND THEIR
14 LOCATIONS?
15 A.: YES.
16 Q.: ALL RIGHT.
17 A.: I COLLECTED 12 SAMPLES — EXCUSE ME, 12 FIBERS OFF
18 OF THE TAPE LIFTS FROM THE INTERIOR SURFACES OF THE S. U. V. I
19 FOUND ONE OF THOSE FIBERS IN THE FRONT PASSENGER SEAT. I FOUND
20 FOUR OF THOSE FIBERS ON THE REAR PASSENGER ARMREST, AND I FOUND
21 SEVEN FIBERS IN THE REAR SEAT OR THE BACK SEAT AREA.
22 Q.: AS A RESULT OF YOUR TESTING, ALL OF THE TESTING
23 THAT YOU’VE CONDUCTED, WERE ALL OF THOSE FIBERS CONSISTENT WITH
24 THE FIBER IN THE NECKLACE AND IN THE BEDDING OR WERE THERE ANY
25 OF THEM THAT WERE NOT?
26 A.: TWO OF THEM ARE NOT CONSISTENT.
27 Q.: HOW DID YOU DETERMINE THAT?
28 A.: WELL, ONE WAS VERY EASY BECAUSE IT WAS A COMPLETELY
.
7761
1 DIFFERENT TYPE OF FIBERS. IT LOOKED LIKE A WOOL FIBER. AND SO,
2 SINCE THAT WAS SO DIFFERENT I WAS ABLE TO EXCLUDE THAT
3 IMMEDIATELY. THE SECOND FIBER THAT I EXCLUDED WAS INDEED AN
4 ORANGE ACRYLIC FIBER BUT IT WAS A DIFFERENT TYPE OF ACRYLIC
5 FIBER. THE COLOR WAS SLIGHTLY DIFFERENT AND THE INFRARED
6 CHEMICAL ANALYSIS SHOWED THAT IT WAS A DIFFERENT TYPE OF ACRYLIC
7 FIBER. SO I WAS ABLE TO EXCLUDE THAT ONE AS WELL.
8 Q.: SO THE INFRARED TEST EXCLUDED THAT PARTICULAR
9 FIBER?
10 A.: YES.
11 Q.: AS WELL AS YOUR MICROSCOPIC COMPARISON?
12 A.: I ACTUALLY DIDN’T EVEN GET TO A MICROSCOPIC
13 COMPARISON ON THAT PARTICULAR FIBER BECAUSE I HAD ALREADY
14 EXCLUDED IT.
15 Q.: SO YOU DIDN’T EVEN NEED TO GO THAT FAR TO EXCLUDE
16 THAT FIBER?
17 A.: THAT’S CORRECT.
18 MR. CLARKE: YOUR HONOR, I HAVE A BOARD THAT’S BEEN
19 MARKED PREVIOUSLY MARKED EXHIBIT 165, LABELED AT THE TOP
20 "QUANTITY OF ORANGE FIBER EVIDENCE COLLECTED" AND THEN THE ROMAN
21 NUMERAL TWO.
22 THE COURT: ALL RIGHT.
23 (MARKED FOR ID: = TRIAL EX. 165-POSTERBOARD
24 LABELED "QUANTITY OF ORANGE FIBER EVIDENCE COLLECTED.")
25
26 BY MR. CLARKE:
27 Q.: MS. SHEN, IF I CAN SHOW YOU WHAT’S BEEN MARKED
28 EXHIBIT 165, THE BOARD THAT I’VE JUST DESCRIBED, HAVE YOU HAD A
.
7762
1 CHANCE TO LOOK AT THIS BOARD EARLIER TODAY?
2 A.: YES.
3 Q.: WHAT DOES IT SHOW?
4 A.: IT SHOWS THE EVIDENCE THAT — DIFFERENT TYPES OF
5 EVIDENCE OR NUMBERS OF THE EVIDENCE THAT I COLLECTED ORANGE
6 FIBERS FROM. IT DESCRIBES THE EVIDENCE AND IT SHOWS HOW MANY OF
7 THE FIBERS THAT I FOUND.
8 Q.: DOES THIS BOARD, EXHIBIT 165 I THINK IT IS, DOES IT
9 DEMONSTRATE WHAT YOU’VE JUST DESCRIBED IN YOUR TESTIMONY TODAY
10 AS FAR AS YOUR MOST RECENT TESTING IN THIS CASE?
11 A.: YES, IT DOES.
12 Q.: ALL RIGHT.
13 WE SEE AT THE BOTTOM "EVIDENCE COLLECTED FROM
14 DEFENDANT’S TOYOTA 4-RUNNER." DO YOU SEE THAT?
15 A.: YES.
16 Q.: ON THE LEFT THERE APPEAR TO BE TWO ITEM NUMBERS,
17 21B AND 35, IS THAT RIGHT?
18 A.: YES.
19 Q.: THERE’S ALSO A NOTATION OF LOCATION FOR EACH OF
20 THOSE ITEM NUMBERS. DO THEY APPEAR TO ACCURATELY DESCRIBE THE
21 VARIOUS LOCATIONS OF THE ORANGE FIBERS YOU’VE JUST DESCRIBED IN
22 YOUR TESTIMONY?
23 A.: YES.
24 Q.: AND THEN IS THE REMAINDER OF THE INFORMATION AS TO
25 FIBER TYPE FOUND AND NUMBER OF FIBERS, IS THAT CONSISTENT WITH
26 THE RESULTS OF YOUR EXAMINATION?
27 A.: YES.
28 Q.: AND THEN LASTLY AT THE TOP UNDER WHAT’S LABELED
.
7763
1 "EVIDENCE COLLECTED FROM THE VICTIM," DOES THAT APPEAR TO
2 DESCRIBE ACCURATELY THE ITEM NUMBER, LOCATION AND THE NUMBER OF
3 LONG ORANGE ACRYLIC FIBERS, OR FIBER THAT YOU RETRIEVED FROM THE
4 NECKLACE, AS YOU’VE PREVIOUSLY TESTIFIED, THAT IS, THE NECKLACE
5 OF DANIELLE VAN DAM?
6 A.: YES.
7 MR. CLARKE: YOUR HONOR, I HAVE ONE MORE BOARD THAT I’VE
8 HAD PREVIOUSLY MARKED AS EXHIBIT 166 WHAT CAN BE DESCRIBED AS A
9 BOARD CONSISTING OF TWO PHOTOGRAPHS, "A" AND "B" LABELED AT THE
10 TOP "ORANGE FIBER COMPARISON."
11 THE COURT: ALL RIGHT.
12 (MARKED FOR ID: = TRIAL EX. 166-TWO PHOTOS
13 LABELED "ORANGE FIBER COMPARISON."
14
15 BY MR. CLARKE:
16 Q.: MS. SHEN, IF I CAN SHOW YOU EXHIBIT 166, WHAT DOES
17 IT SHOW?
18 A.: IT SHOWS COMPARISON MICROSCOPE PHOTOGRAPHS. AND
19 NOW THAT I DISCUSSED THIS WITH YOU BEFORE, THE COMPARISON
20 MICROSCOPE IS THE TWO MICROSCOPES THAT ARE HOOKED TOGETHER WITH
21 ONE LIGHT BRIDGE SO THAT YOU CAN LOOK AT THE TWO ITEMS OF
22 EVIDENCE SIDE BY SIDE, AND THAT’S WHAT THIS IS.
23 Q.: I’M SORRY. GO AHEAD.
24 A.: PHOTOGRAPH "A" SHOWS A COMPARISON MICROSCOPE
25 PHOTOGRAPH OF ITEM — A FIBER TAKEN FROM ITEM 21B, WHICH IS THE
26 BLUE TOWEL FROM THE LAUNDRY BAG FROM THE TOYOTA, AND IT COMPARES
27 THAT TO ITEM 120, WHICH IS THAT ORANGE FIBER TAKEN FROM THE
28 NECKLACE OF THE VICTIM.
.
7764
1 Q.: JUST SO WE’RE CLEAR, ITEM NO. 21B, IS THAT DEPICTED
2 IN THE LEFT SIDE OF PHOTOGRAPH "A"?
3 A.: YES.
4 Q.: DOES THAT REPRESENT ONE OF THE FIBERS, ONE OF THE
5 ORANGE FIBERS THAT YOU FOUND ON THE TOWEL OR THE TAPE LIFTS FROM
6 THE BLUE TOWEL, ITEM 21B?
7 A.: YES.
8 Q.: ALL RIGHT.
9 GO AHEAD, AND IF YOU WOULD DESCRIBE FURTHER WHAT
10 PHOTOGRAPH "A" TELLS US.
11 A.: WELL, THIS IS THE FIBERS SIDE BY SIDE AT 400 TIMES
12 MAGNIFICATION. AND AS I DISCUSSED WITH YOU BEFORE, I’M TRYING
13 TO SHOW YOU THE MICROSCOPIC CHARACTERISTICS. WE CAN SEE THE
14 COLOR HERE, THE DIAMETER, SOME OF THE GROOVES AND DAMAGE ALONG
15 THE EDGE OF THE FIBER. AND IT’S JUST TO SHOW A SNAPSHOT OF
16 THOSE TWO FIBERS SO THAT YOU CAN SEE THAT THEY ARE
17 MICROSCOPICALLY SIMILAR.
18 Q.: TELL US ABOUT PHOTOGRAPH "B". WHAT DOES IT SHOW?
19 A.: PHOTOGRAPH "B", SAME TYPE OF PHOTOGRAPH. ON THE
20 LEFT-HAND SIDE IS A FIBER FROM ITEM 35, AND ITEM 35 ARE THE TAPE
21 LIFTS TAKEN FROM THE INSIDE SURFACES OF THE VEHICLE. THIS
22 PARTICULAR FIBER WAS FOUND ON THE REAR PASSENGER ARMREST, AND I
23 COMPARED IT TO ON THE RIGHT HAND SIDE, ITEM 21B, AND THAT’S A
24 FIBER TAKEN FROM THE BLUE TOWEL FROM THE LAUNDRY BAG FROM THE
25 TOYOTA. THIS ALSO IS AT 400 TIMES MAGNIFICATION.
26 AGAIN, TRYING TO HIGHLIGHT THAT THE SURFACE
27 CHARACTERISTICS ARE THE SAME, THE COLORING IS SIMILAR, THE
28 DIAMETER OR THE WIDTH IS SIMILAR, THAT IT IS INDEED IN THIS AREA
.
7765
1 THESE FIBERS MICROSCOPICALLY SIMILAR.
2 Q.: ARE THESE, THAT IS THE TWO PHOTOGRAPHS — ACTUALLY
3 WOULD IT BE FOUR PHOTOGRAPHS THAT ARE ACTUALLY CONTAINED ON 166,
4 ALTHOUGH BECAUSE OF THE SIDE BY SIDE THEY’RE LABELED "A" AND
5 "B"?
6 A.: THERE ACTUALLY ARE TWO PHOTOGRAPHS.
7 Q.: ALL RIGHT.
8 ARE THESE JUST EXAMPLES OF THE PHOTOGRAPHS THAT YOU
9 TOOK IN TERMS OF YOUR COMPARISON OF THESE FIBERS FROM THE
10 TOYOTA?
11 A.: YES.
12 Q.: AS FAR AS YOUR DATA AND YOUR CONCLUSIONS IN THIS
13 CASE, WERE THEY VERIFIED — AND I’M TALKING ABOUT THE MOST
14 RECENT WORK THAT YOU’VE DESCRIBED FROM THE TOYOTA — WERE THEY
15 VERIFIED BY A SECOND ANALYST?
16 A.: YES.
17 MR. FELDMAN: OBJECT TO THE TERM "VERIFICATION" AS A
18 CONCLUSION, YOUR HONOR.
19 THE COURT: OVERRULED.
20 YOU MAY ANSWER.
21
22 BY MR. CLARKE:
23 Q.: WHO WAS THAT?
24 A.: TANYA DELANEY.
25 Q.: NOW I’D LIKE TO ASK YOU A SERIES OF QUESTIONS
26 SIMILAR TO WHAT I ASKED YOU WHEN YOU WERE LAST IN COURT, BUT IN
27 PARTICULAR WITH RESPECT TO THE MOTOR HOME.
28 DO YOU RECALL ME ASKING YOU QUESTIONS ABOUT THE
.
7766
1 MOTOR HOME WHEN YOU WERE HERE PREVIOUSLY, COMPARING VARIOUS
2 FORMS OF TRACE EVIDENCE?
3 A.: I DON’T RECALL SPECIFICALLY ANY QUESTIONS ABOUT THE
4 MOTOR HOME.
5 Q.: OKAY. LET ME ASK THEM THEN.
6 IN TERMS OF THE MOTOR HOME, ARE YOU FAMILIAR WITH
7 WHETHER OR NOT THERE WAS BLOOD WHICH HAS BEEN IDENTIFIED AS
8 HAVING COME FROM DANIELLE VAN DAM IN THAT MOTOR HOME?
9 MR. FELDMAN: ASKED AND ANSWERED.
10 THE COURT: I THINK THIS IS FOUNDATIONAL.
11 DO YOU WANT TO BE HEARD AT SIDEBAR OR IS IT
12 FOUNDATIONAL TO ANOTHER AREA YOU’RE GETTING INTO?
13 MR. CLARKE: FOUNDATIONAL.
14 THE COURT: OKAY, IT’S FOUNDATIONAL. OVERRULED.
15 YOU MAY ANSWER.
16
17 BY MR. CLARKE:
18 Q.: ARE YOU FAMILIAR WITH THAT FACT?
19 A.: YES.
20 Q.: ARE YOU ALSO FAMILIAR WITH THE FACT THAT HAIR
21 CONSISTENT WITH DANIELLE VAN DAM WHICH D. N. A. TYPING HAS
22 ESTABLISHED COULD HAVE COME FROM HER WAS ALSO FOUND IN THE MOTOR
23 HOME?
24 MR. FELDMAN: YOUR HONOR, SAME OBJECTION — OR JUST
25 CONTINUING OBJECTION.
26 THE COURT: WE’LL SHOW IT AS A CONTINUING OBJECTION.
27 DULY NOTED.
28 YOU MAY ANSWER.
.
7767
1 MR. FELDMAN: THANK YOU.
2 THE WITNESS: YES.
3
4 BY MR. CLARKE:
5 Q.: YOU MAY HAVE ACTUALLY PARTICIPATED IN A REVIEW OF
6 THIS PARTICULAR ITEM, BUT ARE YOU FAMILIAR WITH THE FACT THAT
7 CARPET FIBERS CONSISTENT WITH, AND FIBERS WHICH COULD HAVE COME
8 FROM THE VICTIM’S HOME, WERE ALSO FOUND IN THAT MOTOR HOME?
9 A.: YES.
10 Q.: ARE YOU ALSO FAMILIAR WITH THE FACT THAT DOG HAIRS
11 WHICH WERE CONSISTENT WITH AND COULD HAVE COME FROM THE VICTIM’S
12 FAMILY DOG LEYLA WERE FOUND IN THE MOTOR HOME?
13 A.: YES.
14 Q.: ARE YOU ALSO FAMILIAR WITH THE FACT THAT
15 FINGERPRINTS FROM DANIELLE VAN DAM WERE FOUND IN THE MOTOR HOME?
16 A.: YES.
17 Q.: LASTLY IN THIS SERIES OF FOUNDATIONAL QUESTIONS,
18 ARE YOU FAMILIAR WITH THE FACT THAT 46 BLUE FIBERS WERE FOUND IN
19 THE MOTOR HOME WHICH WERE CONSISTENT WITH, AND COULD HAVE COME
20 FROM THE SAME SOURCE AS, FIBERS FOUND ON A SHEET THAT WAS TAKEN
21 FROM THE BODY — OR AT LEAST COVERED THE BODY OF DANIELLE VAN
22 DAM?
23 MR. FELDMAN: OBJECTION, MISSTATES THE EVIDENCE.
24 THE COURT: OVERRULED.
25 THE WITNESS: YES.
26
27 BY MR. CLARKE:
28 Q.: AS A TRACE ANALYST, IS THERE ANY SIGNIFICANCE TO
.
7768
1 THE FACT OF THE NUMBERS OF DIFFERENT TYPES OF SAMPLES THAT I’VE
2 JUST DESCRIBED?
3 MR. FELDMAN: ASKED AND ANSWERED.
4 THE COURT: OVERRULED.
5 YOU MAY ANSWER.
6 THE WITNESS: YES, THERE IS.
7
8 BY MR. CLARKE:
9 Q.: WHAT?
10 A.: WHEN YOU HAVE — WHEN YOU’RE DEALING WITH FIBER
11 COMPARISON OR TRACE EVIDENCE COMPARISON MORE THINGS ARE BETTER.
12 SO THE MORE DIFFERENT TYPES OF EVIDENCE OR THE MORE — I THINK I
13 TALKED TO YOU BEFORE ABOUT THIS. IF YOU HAVE SEVERAL DIFFERENT
14 TYPES OF FIBERS, WHEN YOU ADD THEM TOGETHER THEY BECOME MORE
15 SIGNIFICANT.
16 SO IN THIS CASE, THE FACT THAT YOU HAVE SO MANY
17 DIFFERENT TYPES OF PHYSICAL EVIDENCE THAT CAN RELATE THE VICTIM
18 TO THIS ENVIRONMENT, THAT MAKES THE SIGNIFICANCE OF ALL THOSE
19 PIECES OF EVIDENCE GREATER.
20 MR. CLARKE: ALL RIGHT. THANK YOU.
21 I HAVE NO FURTHER QUESTIONS, YOUR HONOR.
22 THE COURT: CROSS EXAMINATION.
23
24 CROSS-EXAMINATION +
25 BY MR. FELDMAN:
26 Q.: DID YOU TAKE INTO CONSIDERATION AMONG ALL THE
27 HYPOTHETICALS THAT MR. CLARKE GAVE YOU THAT DAVID WESTERFIELD
28 AND BRENDA VAN DAM, WITHIN A SHORT PERIOD OF TIME, WERE DANCING
.
7769
1 IN WHAT APPEARS TO HAVE BEEN DESCRIBED AS A "DIRTY DANCING"
2 MANNER, DID YOU TAKE THAT INTO CONSIDERATION?
3 MR. CLARKE: OBJECTION, NO FOUNDATION, ALSO IRRELEVANT.
4 THE COURT: LAY THE FOUNDATION, COUNSEL, AND I’LL ALLOW
5 THE INQUIRY.
6
7 BY MR. FELDMAN:
8 Q.: WHEN LAST WAS DISCUSSED THESE ISSUES YOU AGREED
9 THAT THERE WAS THIS CONCEPT CALLED THE LOCARD EXCHANGE
10 PRINCIPLE, RIGHT?
11 A.: YES.
12 Q.: WHERE FIBERS COULD GET TRANSFERRED, OR WHERE A
13 PERSON COULD BRING PHYSIOLOGY OR FIBERS FROM ONE ENVIRONMENT
14 INTO ANOTHER, RIGHT?
15 A.: YES.
16 Q.: IF A PERSON IS WEARING A PARTICULARLY SHEDABLE
17 WE’LL SAY SWEATER THAT’S HYPOTHETICALLY ORANGE, AND IS DIRTY
18 DANCING OR DANCING IN A HUGGIE-HUGGIE TYPE OF MANNER, AS HAS
19 BEEN DESCRIBED, WOULD YOU TAKE THAT INTO CONSIDERATION IN
20 EVALUATING THE SIGNIFICANCE OF THE AGGREGATE OF TRACE EVIDENCE
21 THAT’S BEEN COLLECTED?
22 MR. CLARKE: OBJECTION, NO FOUNDATION, MISSTATES THE
23 EVIDENCE.
24 THE COURT: SUSTAINED.
25 MR. FELDMAN: I’M SORRY. FOUNDATION, YOUR HONOR?
26 THE COURT: NO. MISSTATES THE EVIDENCE.
27
28 ///
.
7770
1 BY MR. FELDMAN:
2 Q.: I’D LIKE YOU TO ASSUME THAT, IN ADDITION TO THE
3 HYPOTHETICALS MR. CLARKE GAVE YOU, THAT ON FRIDAY NIGHT
4 IMMEDIATELY — WE’LL SAY FEBRUARY 1ST, WHICH WOULD BE THREE DAYS
5 OR FOUR DAYS BEFORE LAW ENFORCEMENT WENT AND SEIZED ITEMS OF
6 PROPERTY FROM MR. WESTERFIELD’S RESIDENCE, THAT MR. WESTERFIELD
7 HAD BEEN DANCING WITH SOMEONE FROM DANIELLE VAN DAM’S
8 ENVIRONMENT, THAT THE TWO OF THEM WERE DANCING IN A MANNER
9 THAT’S BEEN DESCRIBED AS DIRTY DANCING AND HUGGIE-HUGGIE. WOULD
10 THAT AFFECT YOUR OPINION AS TO THE IMPORT OF THE AGGREGATE OF
11 SIMILARITY OF TRACE EVIDENCE?
12 MR. CLARKE: OBJECTION, IRRELEVANT AS PHRASED.
13 THE COURT: OVERRULED.
14 YOU CAN ANSWER THAT.
15 THE WITNESS: YES. THAT CERTAINLY WOULD — THAT WOULD
16 IMPACT MY EVALUATION OF THE EVIDENCE.
17
18 BY MR. FELDMAN:
19 Q.: BECAUSE THAT WOULD EXPLAIN, WOULDN’T IT, OR
20 POTENTIALLY EXPLAIN, HOW ITEMS IN ONE ENVIRONMENT MIGHT TRANSFER
21 TO ANOTHER ENVIRONMENT, CORRECT?
22 A.: THAT WOULD CERTAINLY BE IMPORTANT, YES.
23 Q.: WITH REGARD TO THIS CASE, DID YOU DO ANY FIBER
24 ANALYSIS, FOR INSTANCE, OF ANY OF THE CLOTHING OF BRENDA VAN
25 DAM?
26 A.: NO.
27 Q.: SO YOU DID NOT EVALUATE HER ORANGE SWEATER?
28 MR. CLARKE: EXCUSE ME. OBJECTION, ASSUMES FACTS NOT IN
.
7771
1 EVIDENCE.
2 THE COURT: SUSTAINED.
3
4 BY MR. FELDMAN:
5 Q.: YESTERDAY IN THE COURTROOM — I WANT TO WITHDRAW
6 THAT.
7 I’D LIKE YOU TO ASSUME HYPOTHETICALLY THAT
8 YESTERDAY IN THE COURTROOM BRENDA VAN DAM WAS WEARING AN ORANGE
9 SWEATER. ON THAT HYPOTHETICAL, WOULDN’T THAT BE AN ITEM OF
10 EVIDENCE YOU WOULD WANT TO TEST TO DETERMINE WHETHER OR NOT
11 ORANGE COULD TRANSFER FROM ENVIRONMENT TO ENVIRONMENT?
12 MR. CLARKE: OBJECTION, ASSUMES FACTS NOT IN EVIDENCE.
13 THE COURT: SUSTAINED.
14
15 BY MR. FELDMAN:
16 Q.: WITH REGARD TO THE ITEMS OF EVIDENCE THAT — I’M
17 SORRY, I’VE GOT TO SWITCH EXHIBITS HERE.
18 DIRECTING YOUR ATTENTION TO WHAT’S BEEN PREVIOUSLY
19 MARKED 165, CAN YOU TELL ME, MA’AM, WE SEE AT 21B, IT SAYS "TEN
20 LONG ORANGE ACRYLIC FIBERS." DO YOU HAVE THOSE SLIDES WITH YOU?
21 A.: YES, I DO.
22 Q.: COULD WE SEE THEM, PLEASE?
23 A.: YES.
24 MR. FELDMAN: YOUR HONOR, I’D ASK TO HAVE MARKED AS
25 NEXT —
26 THE COURT: IT WILL BE 168.
27
28 (MARKED FOR ID: = TRIAL EX. 168-FIVE SLIDES )
.
7772
1 BY MR. FELDMAN:
2 Q.: IF YOU’RE GOING TO OPEN IT I’LL GET YOU SCISSORS,
3 BUT I’D LIKE TO PLACE ON THE OUTSIDE PLEASE JUST THIS TAG, OKAY?
4 YOU NEED A SCISSORS, RIGHT?
5 A.: YES, PLEASE.
6 THANK YOU.
7 Q.: JUST SO THAT WE DESCRIBE WHAT YOU’RE DOING, FOR THE
8 RECORD, IT APPEARS AS THOUGH, MA’AM, YOU’VE REMOVED A SERIES OF
9 IT LOOKS TO ME LIKE CARDBOARD SQUARES FROM THE ENVELOPE, IS THAT
10 A FAIR STATEMENT?
11 A.: YES.
12 Q.: COULD YOU DESCRIBE MORE PRECISELY WHAT YOU’VE DONE,
13 PLEASE?
14 A.: I REMOVED FIVE CARDBOARD SLIDE HOLDERS FROM A
15 MANILA ENVELOPE.
16 Q.: AND WITH REGARD TO THE FIVE CARDBOARD SLIDE HOLDERS
17 WHAT SLIDES DO THINK DEPICT — DO THEY DEPICT THE 21B SERIES?
18 A.: YES. THERE ARE FIBERS TAKEN FROM ITEM 21B ON THESE
19 SLIDES AND THEN ALSO FIBERS TAKEN FROM ITEM 35.
20 Q.: ALL RIGHT.
21 COULD YOU PLEASE OPEN ‘EM UP FURTHER?
22 A.: (WITNESS COMPLYING.)
23 YOU’RE INTERESTED IN THE SLIDES FROM 21B?
24 Q.: FIRST OF ALL, WITH REGARD TO THE SLIDES, CAN YOU
25 DESCRIBE THE PROCESS THAT THEY WERE PUT TOGETHER?
26 A.: THE FIVE CARDBOARD SLIDE HOLDERS WERE STACKED
27 TOGETHER AND THEN I HAD SCOTCH-TAPED THEM.
28 Q.: NO, NO, I’M SORRY. THAT’S NOT QUITE WHAT I HAD IN
.
7773
1 MIND.
2 BEFORE YOU SCOTCH-TAPED THEM TOGETHER AND PUT
3 ‘EM — STACK ‘EM UP, THEY WERE IN SOME CONDITION, IS THAT RIGHT?
4 YOU HAD A FIBER AND YOU HAD SOME GLASS, RIGHT?
5 A.: YES. I’M SORRY.
6 Q.: PLEASE.
7 A.: WHEN I COLLECTED THE FIBERS FROM THE TAPE LIFTS I
8 PLACED THEM ON MICROSCOPE SLIDES, GLASS SLIDES, AND THEN I
9 COVERED THEM UP WITH A GLASS COVER SLIP AND TAPED AROUND THE
10 EDGES TO HOLD THEM DOWN.
11 Q.: COULD YOU PLEASE SHOW THE JURY JUST WHATEVER ONE
12 YOU’D THINK WOULD BE APPROPRIATE?
13 FOR THE RECORD, IT APPEARS AS THOUGH YOU HAVE FIVE
14 AT THE WITNESS STATION. YOU’VE GONE TO THE ONE ON THE FURTHEST
15 TO MY LEFT, IS THAT CORRECT, MA’AM?
16 A.: YES. I HAVE TAPED THESE ALL TOGETHER TO MAKE THIS
17 AS HARD ON MYSELF AS POSSIBLE.
18 Q.: BECAUSE YOU KNEW I WAS GOING TO ASK, RIGHT?
19 A.: UM-HMM.
20 Q.: IT APPEARS AS THOUGH YOU HAVE REMOVED WHAT APPEARS
21 TO BE A SLIDE. IS THAT A FAIR STATEMENT?
22 A.: YES.
23 Q.: CAN YOU HOLD IT UP SO THE JURY CAN SEE IT, PLEASE?
24 A.: (WITNESS COMPLYING.)
25 Q.: IN LOOKING AT IT CAN WE SEE A FIBER WITH THE NAKED
26 EYE?
27 A.: YES, IF YOU LOOK CAREFULLY.
28 Q.: ALL RIGHT.
.
7774
1 AND IS THAT A SINGLE FIBER OR MULTIPLE FIBERS?
2 A.: THERE ARE MULTIPLE FIBERS.
3 Q.: WITH REGARD TO THAT — I’M SORRY, IS THE ENVELOPE
4 OR PACKAGE THAT YOU’VE JUST DESCRIBED, IS THAT A J. S. HYPHEN
5 PARTICULAR PIECE OF EVIDENCE? DO YOU KNOW WHAT I MEAN?
6 A.: THESE PARTICULAR SLIDES WERE PACKAGED TOGETHER
7 UNDER T. E. J. S.-7.
8 Q.: TRACE EVIDENCE JENNIFER SHEN-7, IS THAT RIGHT?
9 A.: YES.
10 Q.: THEN YOU SUBDIVIDE THE 7, SO THIS WOULD BE 7-A, FOR
11 INSTANCE?
12 A.: I DIDN’T BUT I ANNOTATED ON EACH INDIVIDUAL SLIDE
13 EXACTLY WHAT’S ON THE SLIDE.
14 Q.: OKAY.
15 CAN YOU SHOW US — OR IF IT IS THE CASE AMONG THE
16 FIVE, ANY OF THE EXCLUSIONS?
17 A.: YES.
18 Q.: PLEASE.
19 A.: THE TWO FIBERS I EXCLUDED ARE IN THIS PARTICULAR
20 CARDBOARD CONTAINER.
21 Q.: I’M SORRY. JUST WHAT I’M TRYING TO DO IS FIGURE
22 OUT SOME WAY TO TRANSLATE FOR THE RECORD, WHEN YOU USE THE WORD
23 "THIS" CAN YOU BE MORE PRECISE TO DESCRIBE IT?
24 A.: IT’S A CARDBOARD CONTAINER CONTAINING TWO DIFFERENT
25 SLIDES. EACH OF THE SLIDES CONTAINS FIBERS FROM ITEM NO. 35,
26 WHICH IS THE TAPE LIFTS. AND THE SLIDE THAT I WOULD SHOW YOU
27 THAT HAS THE TWO EXCLUSIONS ON IT IS LABELED FIBER NO. 8 AND
28 FIBER NO. 9.
.
7775
1 Q.: AND ARE THOSE LABELS — DO THEY PLAINLY APPEAR ON
2 THE SLIDE?
3 A.: YES.
4 Q.: SO COULD YOU PLEASE SHOW US?
5 A.: AT THE TOP — THE TOP IS FIBER NO. 8, THE BOTTOM IS
6 FIBER NO. 9.
7 Q.: AND CAN YOU SHOW US THE ONE THAT I GUESS THAT YOU
8 HAD PREVIOUSLY SHOWN US?
9 A.: (WITNESS COMPLYING.)
10 Q.: I’M SORRY. WHAT WAS THE NUMBER OF THAT ONE?
11 A.: THIS ONE HAS NO. 21B WRITTEN ON IT?
12 Q.: YES. IS IT FURTHER DESCRIBED? I’M SORRY.
13 A.: IT’S FURTHER DESCRIBED ONLY WITH THE CASE
14 INFORMATION. BUT THE FIBERS THEMSELVES, SINCE THEY ALL CAME
15 FROM THE SAME ITEM, I DIDN’T — I DIDN’T SPECIFY NUMBER FOR EACH
16 FIBER.
17 Q.: WHEN YOU SAY THEY CAME FROM THE SAME ITEM, ARE YOU
18 REFERRING TO LIKE THE DRIVER’S LICENSE OR THE SAME LIFT — I’M
19 SORRY — THE DRIVER’S SEAT OR ARE YOU REFERRING TO THE SAME
20 LIFT?
21 A.: ACTUALLY, IN THIS PARTICULAR CASE THESE ARE FIBERS
22 FROM ITEM 21 —
23 Q.: YES.
24 A.: — B, SO THESE FIBERS CAME — ALL THESE FIBERS CAME
25 FROM THE TOWEL.
26 Q.: ALL RIGHT.
27 IF YOU COULD PUT THOSE AWAY IN A WAY THAT YOU’RE
28 COMFORTABLE WITH.
.
7776
1 EARLIER I SAID YOU KNEW I WAS GOING TO ASK YOU TO
2 BRING THE SLIDES UP. I WASN’T JOKING. IT WAS COMMUNICATED TO
3 YOU THAT THE DEFENSE REQUESTED YOU BRING THE SLIDES, RIGHT?
4 A.: YES.
5 Q.: DID YOU ALSO BRING 120?
6 A.: NO, I DID NOT.
7 Q.: WHY NOT?
8 A.: I DISCUSSED THAT WITH THE DISTRICT ATTORNEY AND HE
9 LED ME TO BELIEVE THAT I NEEDED TO BRING THE FIBERS FROM THE
10 ITEMS I HAD JUST EXAMINED.
11 Q.: THE ITEMS THAT YOU JUST EXAMINED INVOLVED ORANGE
12 ACRYLIC FIBERS OR WHAT YOU BELIEVED TO BE ORANGE ACRYLIC FIBERS,
13 IS THAT RIGHT?
14 A.: YES.
15 Q.: 120 IS THE ORANGE ACRYLIC FIBER THAT SOURCED FROM
16 THE NECKLACE, IS THAT RIGHT?
17 A.: YES.
18 Q.: IS THAT SOMETHING YOU CAN GET?
19 A.: YES.
20 Q.: WITH REGARD TO THE FIBERS THAT YOU HAVE AT COUNSEL
21 TABLE, DID YOU DO MEASUREMENTS OF THE LENGTH?
22 A.: YES.
23 Q.: ARE THEY ALL THE SAME LENGTH?
24 A.: NO, THEY’RE NOT.
25 Q.: THEY EACH DIFFER?
26 A.: SLIGHTLY.
27 Q.: AND WITH REGARD TO 120, NOT ONLY DO THEY EACH
28 DIFFER FROM THEMSELVES, THEY DIFFER FROM 120, ISN’T THAT TRUE,
.
7777
1 IN LENGTH?
2 A.: WELL, I TOOK MEASUREMENTS OF ALL OF THE FIBERS FROM
3 THESE VARIOUS ITEMS, AND I GAVE A RANGE OF MEASUREMENTS FOR
4 LENGTH. AND THE 120 FIBER FITS WITHIN THAT RANGE OF
5 MEASUREMENTS, BUT I DIDN’T DO A SPECIFIC SIDE BY SIDE LENGTH
6 COMPARISON TO ANY PARTICULAR FIBER. SO I PROBABLY COULDN’T EVEN
7 ANSWER THAT.
8 Q.: MR. CLARKE ASKED YOU WHETHER YOU HAD DONE — I
9 THINK YOU IDENTIFIED THREE SEPARATE TESTS, BUT I DON’T REMEMBER
10 WHAT HE SAID. AND I JUST HAD ANOTHER ISSUE WITH ANOTHER WITNESS
11 ON IDENTIFYING THE TESTS, OKAY?
12 COULD YOU PLEASE TELL US WHAT TESTS DID YOU
13 PERFORM?
14 A.: YES. I DID — HE ACTUALLY BROKE IT DOWN TO THREE
15 TYPES OF TESTS, BUT I WOULD REALLY CONSIDER IT TO BE TWO
16 DIFFERENT TYPES.
17 ONE IS A VISUAL EXAMINATION, AND THIS IS A
18 COMPOSITE OF MACROSCOPIC AND MICROSCOPIC CHARACTERISTICS. SO
19 I’M LOOKING AT ALL THE REALLY BIG THINGS AND I’M LOOKING AT ALL
20 THE REALLY SMALL THINGS. SO I DID THAT USING DIFFERENT TYPES OF
21 MICROSCOPES AND MY UNAIDED EYE. SO THAT WAS REALLY ONE TYPE OF
22 TEST.
23 THE SECOND TYPE OF TEST THAT I DID WAS THE INFRARED
24 ANALYSIS TO DETERMINE THE CHEMICAL COMPOSITION OF THE FIBER, AND
25 THAT WOULD BE A SEPARATE TYPE OF TEST. SO THOSE ARE THE TWO
26 THAT I DID.
27 Q.: I’M SORRY. AND THE THIRD?
28 A.: WELL, THERE REALLY ISN’T A THIRD. YOU CAN BREAK IT
.
7778
1 DOWN INTO A MACROSCOPIC OR GROSS CHARACTERISTICS AND THEN A
2 MICROSCOPIC, BUT IT’S ALL REALLY VISUAL CHARACTERISTICS.
3 Q.: ALL RIGHT.
4 ARE THERE ANY OTHER TESTS THAT YOU COULD HAVE
5 PERFORMED ON THESE FIBERS FOR THE PURPOSE OF EITHER INCLUDING OR
6 EXCLUDING THEM?
7 A.: YES.
8 Q.: WHAT?
9 A.: THESE COULD HAVE BEEN EXAMINED, AS WE DISCUSSED
10 BEFORE, BY USING THE MICROSPECTROPHOTOMETER. AND THAT’S A TYPE
11 OF INSTRUMENT THAT YOU CAN USE TO DETERMINE WHAT DYE COMPONENTS
12 ARE IN A PARTICULAR FIBER. AND YOU COULD ALSO USE FLUORESCENCE
13 MICROSCOPY. THAT WOULD BE ANOTHER WAY TO ANALYZE THESE FIBERS.
14 AND THAT’S JUST LOOKING AT THE FIBER IN DIFFERENT WAVE LENGTHS
15 OF LIGHT AND COMPARING THEM.
16 Q.: YOU DID NOT DO EITHER OF THOSE TWO TESTS, IS THAT
17 RIGHT?
18 A.: THAT’S CORRECT.
19 Q.: WITH REGARD TO THE MICROSPECTROPHOTOMETRY TEST,
20 THAT WAS THE TEST YOU MENTIONED LAST TIME YOU WERE HERE WHEN YOU
21 WENT TO SACRAMENTO?
22 A.: YES.
23 Q.: THAT WAS WHAT YOU BELIEVED TO BE AN ORANGE ACRYLIC
24 FIBER FROM AN AFGHAN THAT MAY HAVE BEEN SIMILAR TO THE ORANGE
25 ACRYLIC FIBER IN 120, IS THAT RIGHT?
26 A.: YES. THAT WAS PART OF THE ANALYSIS.
27 Q.: AND YOU FORMED THE OPINION BEFORE YOU UTILIZED
28 FLUORESCENCE AND MICROSPECTROPHOTOMETRY THAT THERE MIGHT HAVE
.
7779
1 BEEN A COMMON SOURCE, CORRECT?
2 A.: THERE WERE OTHER DIFFICULTIES WITH THAT FIBER. IT
3 WAS IN THE — IN TRYING TO BE COMPLETE I NEEDED TO DO THOSE
4 TYPES OF TESTING BUT THERE WERE SOME DIFFERENCES IN THE INFRARED
5 ALREADY.
6 Q.: BUT IT WAS OF ENOUGH CONCERN TO YOU TO BRING IT TO
7 SACRAMENTO YOURSELF AND HAVE IT TESTED, RIGHT?
8 A.: YES.
9 MR. CLARKE: OBJECTION, ARGUMENTATIVE AS PHRASED.
10 THE COURT: OVERRULED. THE ANSWER WAS YES.
11 THE WITNESS: YES.
12
13 BY MR. FELDMAN:
14 Q.: AND THAT ULTIMATELY RESULTED IN AN EXCLUSION OF THE
15 QUESTIONED FIBER, CORRECT?
16 A.: YES, IT DID.
17 Q.: SO WE KNOW THEN THAT THERE ARE CIRCUMSTANCES WHERE
18 YOU MAY FORM AN OPINION THAT FIBERS MAY SHARE A COMMON SOURCE
19 BUT WHICH UPON FURTHER ANALYSIS YOU GET AN EXCLUSION, CORRECT?
20 A.: YES.
21 Q.: WITH REGARD TO YOUR DESCRIPTION OF THE FIBERS, IS
22 THERE A COMMON ACCEPTED WAY TO DESCRIBE — LET ME SAY THAT A
23 DIFFERENT WAY.
24 DO YOU DESCRIBE THE FIBERS CONSISTENTLY BY COLOR
25 THROUGHOUT YOUR NOTES, FOR INSTANCE?
26 A.: WELL, I TRY TO BE CONSISTENT, AND IN THE COURSE OF
27 A LENGTHY EXAMINATION I MAY VARY MY DESCRIPTION SLIGHTLY,
28 DEPENDING UPON WHAT PART OF THE FIBER THAT I’M LOOKING AT.
.
7780
1 Q.: WELL, IS THERE A DIFFERENCE BETWEEN A DULL ORANGE
2 COLOR, FOR INSTANCE, AND A BRIGHT ORANGE COLOR?
3 A.: YES.
4 Q.: SO A FIBER THAT WOULD SHARE A COMMON SOURCE ONE
5 WOULD ASSUME WOULD NOT HAVE BOTH — STRIKE THAT.
6 IF A FIBER HAD A COMMON SOURCE YOU WOULDN’T
7 EXPECT — IF TWO FIBERS HAD A COMMON SOURCE YOU WOULDN’T EXPECT
8 TO SEE DULL ORANGE AND BRIGHT ORANGE, IS THAT RIGHT?
9 A.: THAT’S CORRECT.
10 Q.: ISN’T IT TRUE THAT WITH REGARD TO 120, THAT WOULD
11 BE THE FIBER FOUND AROUND THE NECKLACE, YOU DESCRIBED THAT AS A
12 DULL ORANGE, CORRECT?
13 A.: I WOULD HAVE TO LOOK IN MY NOTES. I JUST DON’T
14 RECALL.
15 MR. FELDMAN: COUNSEL, DISCOVERY PAGE 10,371.
16 MR. CLARKE: I’M SORRY, COULD I SEE IT PLEASE?
17 MR. DUSEK: LET’S SEE IT.
18
19 BY MR. FELDMAN:
20 Q.: MA’AM, I JUST WANT TO CLARIFY, IT’S OUR 10,000.
21 YOU DON’T HAVE 10,000 PAGES OF NOTES, DO YOU?
22 A.: NO.
23 Q.: OKAY.
24 A.: YES. I HAVE DULL ORANGE IN THERE.
25 Q.: SO, IN OTHER WORDS, IT’S TRUE, WHEN AT LEAST AT
26 PAGE 67 OF 105, WHEN YOU DESCRIBED 120 YOU DESCRIBED IT AS
27 HAVING DULL ORANGE IN COLOR?
28 A.: YES. THAT’S TRUE.
.
7781
1 Q.: WITH REGARD TO ITEM 21B, YOU DESCRIBED 21B, DID YOU
2 NOT, AS BRIGHT ORANGE ACRYLIC FIBERS?
3 A.: YES.
4 Q.: WITH REGARD TO YOUR COMPARISONS, MA’AM, DID YOU
5 COMPARE THE S. U. V. FIBERS AGAINST 120?
6 A.: YES.
7 Q.: DID YOU DO THE THREE COMPARISONS — I’M SORRY. MR.
8 CLARKE AND I ARE CALLING IT THREE, YOU’RE CALLING IT TWO, YOU
9 UNDERSTAND WHAT I MEAN?
10 A.: YES, I DO.
11 Q.: DID YOU DO A COMPARISON OF THOSE FIBERS?
12 A.: TO BE SPECIFIC, I COMPARED THE FIBERS FROM THE
13 TOWEL —
14 Q.: YES, MA’AM?
15 A.: — TO THE FIBER FROM ITEM 120.
16 Q.: WE SEE THAT 21B REFLECTS A TOTAL NUMBER OF TEN
17 FIBERS?
18 A.: YES.
19 Q.: I’M LOOKING RIGHT — IF YOU NEED TO LOOK, IT’S JUST
20 RIGHT BEHIND YOU, MA’AM.
21 A.: THANK YOU.
22 Q.: I THINK YOU TOLD US ON DIRECT EXAMINATION THAT YOU
23 DID NOT ACTUALLY EVALUATE BY EACH OF THE TESTS YOU PERFORMED ALL
24 TEN OF THOSE FIBERS, IS THAT A FAIR STATEMENT?
25 A.: YES.
26 Q.: HOW MANY TOTAL NUMBER OF THE TEN FIBERS IN 21B DID
27 YOU ACTUALLY PERFORM THE TESTS THAT YOU ARTICULATED ON DIRECT
28 EXAMINATION?
.
7782
1 A.: FOUR OF THE TEN.
2 Q.: I THINK MR. CLARKE ASKED YOU WHETHER OR NOT YOU
3 VERIFIED OR REVIEWED ANOTHER EXAMINER’S REPORT, MS. DULANEY’S,
4 IS THAT RIGHT?
5 A.: YES.
6 Q.: IN FACT, YOU WORKED TOGETHER AT THE SAN DIEGO
7 POLICE DEPARTMENT CRIME LAB, RIGHT?
8 A.: YES.
9 Q.: IT’S PART OF THE SCIENTIFIC PROCEDURE TO HAVE I’LL
10 CALL DOUBLE READS, DO YOU UNDERSTAND THAT CONCEPT?
11 A.: I DO.
12 Q.: IN OTHER WORDS, TWO EXAMINERS LOOKING AT THE SAME
13 THING, RIGHT?
14 A.: YES.
15 Q.: FOR THE PURPOSE OF INDEPENDENTLY DETERMINING
16 WHETHER OR NOT THE CONCLUSIONS ARE ACCURATE?
17 A.: YES.
18 Q.: IT’S NOT REALLY CALLED VERIFICATION. THAT’S JUST
19 PART OF THE PROCESS, ISN’T IT?
20 A.: YES.
21 Q.: WITH REGARD TO YOUR EVALUATION OF MS. DULANEY’S
22 WORK, SHE’S TOLD US THAT THERE WAS NAVY FIBERS, BLUE NAVY FIBERS
23 I BELIEVE THAT WERE DISCOVERED.
24 DO YOU KNOW HOW MANY — ARE THERE DIFFERENT TYPES
25 OF BLUE NAVY FIBERS THAT ARE IN EXISTENCE?
26 MR. CLARKE: OBJECTION, MISSTATES THE EVIDENCE AND THE
27 PREFACE.
28 THE COURT: SUSTAINED. CLARIFY THE COLOR.
.
7783
1 BY MR. FELDMAN:
2 Q.: I’M SORRY, BLUE NYLON FIBERS. ARE THERE DIFFERENT
3 TYPES OF BLUE NYLON FIBERS IN EXISTENCE?
4 A.: YES.
5 Q.: HOW MANY DIFFERENT TYPES?
6 A.: HOW MANY TYPES OF NYLON FIBERS OR NYLON BLUE
7 FIBERS?
8 Q.: BOTH.
9 A.: A LOT OF THEM, I IMAGINE. THERE ARE SEVERAL
10 DIFFERENT TYPES OF NYLON FIBERS, AND THERE’S CERTAINLY LOTS AND
11 LOTS OF DIFFERENT SHADES OF BLUE. SO WHEN YOU COMBINE THEM
12 TOGETHER YOU’RE LOOKING AT NUMEROUS BLUE NYLON FIBER TYPES.
13 Q.: HOW MANY KINDS OF NYLON FIBERS, TO YOUR KNOWLEDGE,
14 ARE PRODUCED IN THE UNITED STATES?
15 A.: I DON’T KNOW.
16 Q.: WITH REGARD TO THE SEVERAL TYPES OF NYLON, WE HEARD
17 TESTIMONY ABOUT A BLUE NYLON 6 AND A — I DON’T REMEMBER WHETHER
18 IT’S 6 COMMA 6 OR 6 SOMETHING 6. DO YOU KNOW WHAT I’M TALKING
19 ABOUT?
20 A.: YES.
21 Q.: PLEASE, TELL ME.
22 A.: I THINK I DISCUSSED BEFORE THAT THERE — THE
23 MICROSCOPE WE CAN USE TO DETERMINE A GENERAL CLASS OF FIBER AND
24 NYLON IS A GENERAL CLASS OF FIBER. AND THEN WE CAN USE INFRARED
25 TO DETERMINE THE MOLECULAR STRUCTURE OF THE FIBER, AND THEN WE
26 CAN PIN IT DOWN TO A SPECIFIC TYPE OF NYLON FIBER. AND THERE
27 ARE MANY DIFFERENT TYPES OF NYLON FIBERS AND THEY JUST ALTER
28 SLIGHTLY. THEY HAVE A DIFFERENT, YOU KNOW, SLIGHTLY DIFFERENT
.
7784
1 MAKEUP BETWEEN THEM AND THAT CAUSES THEIR CHEMICAL STRUCTURE TO
2 BE SLIGHTLY DIFFERENT WHICH, IN TURN, CAUSES THEM TO BE
3 CLASSIFIED AS SLIGHTLY DIFFERENT TYPES OF FIBERS.
4 Q.: WE HEARD ABOUT A NYLON 6 FIBER. ARE YOU FAMILIAR
5 WITH THAT?
6 A.: YES.
7 Q.: ARE THERE OTHER SIMILAR NYLON FIBERS THAT WOULD
8 FOLLOW THAT NUMBERING SEQUENCE?
9 A.: YES.
10 Q.: CAN YOU PLEASE TELL US WHAT THEY ARE?
11 A.: WELL, THERE ARE SEVERAL TYPES OF FIBERS. THERE IS
12 A NYLON 6, THERE’S A NYLON 6 COMMA 6, THERE’S A NYLON 11, I
13 BELIEVE A NYLON 9, NYLON 5. YOU KNOW, THERE ARE SEVERAL. I
14 DON’T KNOW THEM ALL OFF THE TOP OF MY HEAD.
15 Q.: SO THERE’S MORE THAN 6, 6 COMMA 6, 11, 9 AND 5,
16 THERE’S MORE TO YOUR KNOWLEDGE?
17 A.: I BELIEVE SO.
18 Q.: AND WITH REGARD TO IDENTIFYING THE DIFFERENCES
19 BETWEEN THE NYLON 6, 6 COMMA 6, 11, 9 AND 5, THERE’S A SERIES OF
20 TESTS YOU CAN UTILIZE TO IDENTIFY THE DIFFERENCES, IS THAT
21 RIGHT?
22 A.: YES.
23 Q.: WITH REGARD TO THOSE TESTS, WOULD MELTING POINT
24 TEST BE ONE OF THOSE?
25 A.: CERTAINLY.
26 Q.: AND WOULD A FLUORESCENCE TEST BE ONE OF THOSE?
27 A.: I’M NOT SURE. I DON’T THINK THAT WOULD
28 DIFFERENTIATE BETWEEN THE TYPES OF NYLON.
.
7785
1 Q.: WHAT’S THE PURPOSE OF THE MELTING POINT TEST FOR
2 NYLON TESTING, IF YOU KNOW?
3 A.: THE MELTING POINT, TO EXPLAIN THAT TO YOU, IS JUST
4 BASICALLY YOU HEAT UP A FIBER UNTIL IT MELTS, AND THEN YOU LOOK
5 AT THE TEMPERATURE READING AND DETERMINE WHAT THE TEMPERATURE
6 IS. SO YOU CAN DIFFERENTIATE BETWEEN TYPES OF NYLON FIBERS BY
7 MELTING THEM AND SEEING AT WHAT TEMPERATURE THEY MELT. AND THAT
8 WILL DIFFERENTIATE — IN PARTICULAR, IT WILL DIFFERENTIATE
9 BETWEEN NYLON 6 AND NYLON 6 COMMA 6, SO IT’S USED FOR THAT.
10 Q.: AND THEN, TO YOUR KNOWLEDGE, IT’S USED THROUGHOUT
11 THE UNITED STATES?
12 A.: WELL, IT’S ACTUALLY NOT USED MUCH ANYMORE BECAUSE
13 IT’S A DESTRUCTIVE TEST, BECAUSE YOU MELT THE FIBER. AND
14 INFRARED ANALYSIS HAS BECOME SO COMMON IN MOST LABORATORIES, THE
15 INFRARED CHEMICAL ANALYSIS WILL GIVE YOU THE SAME INFORMATION
16 AND YOU DON’T DESTROY THE FIBER. SO THAT IS GENERALLY USED
17 INSTEAD OF THE MELTING POINT, ALTHOUGH CERTAINLY SOME PEOPLE DO
18 STILL USE IT.
19 Q.: AND ARE THERE OCCASIONS THAT YOU ARE FAMILIAR WITH
20 WHERE THE — I THINK YOU JUST SAID INFRARED — I’M SORRY.
21 IS INFRARED THE TEST YOU JUST REFERRED TO?
22 A.: YES.
23 Q.: ARE THERE OCCASIONS WHERE BOTH INFRARED AND MELTING
24 POINT TESTS ARE USED?
25 MR. CLARKE: OBJECTION, RELEVANCE.
26 THE COURT: SUSTAINED. YOU NEED NOT ANSWER.
27
28 ///
.
7786
1 BY MR. FELDMAN:
2 Q.: IS IT POSSIBLE TO CUT OFF A PIECE OF FIBER TO TEST
3 WITH THE MELTING POINT TEST WITHOUT DESTROYING THE ENTIRE FIBER?
4 A.: YES.
5 Q.: WITH REGARD TO THE MOTOR HOME, MR. CLARKE WAS
6 RAISING THIS ON DIRECT EXAMINATION, DID YOU COMPARE FIBERS, ANY
7 OF THE FIBERS THAT ARE LISTED ON, I’M SORRY, IT WAS 163 I THINK,
8 WITH THE MOTOR HOME FIBERS?
9 A.: NO.
10 Q.: DID YOU COMPARE ANY OF THE BLUE NYLON FIBERS — DID
11 YOU DO ANY OF THE COMPARISON OF THE BLUE NYLON FIBERS?
12 A.: FROM THE MOTOR HOME?
13 Q.: FROM ANY LOCATION, MA’AM?
14 A.: YES.
15 Q.: WHICH LOCATION?
16 A.: I ANALYZED AND COMPARED THE FIBERS FOUND ON THE
17 VICTIM IN HER HAIR AND IN THE VEGETATION FROM HER BACK AND FROM
18 THE WHITE SHEET. I ANALYZED THOSE AND COMPARED THEM TO THE BLUE
19 NYLON FIBERS THAT I FOUND IN ITEMS FIVE, SIX AND SEVEN, WHICH
20 WERE THE LAUNDRY FROM IN THE WASHING MACHINE, ON TOP OF THE
21 DRYER AND IN THE DRYER FROM THE DEFENDANT’S HOME.
22 Q.: WITH REGARD TO THE WHITE SHEET, DID YOU YOURSELF DO
23 THOSE LIFTS?
24 A.: YES, I DID.
25 Q.: TELL ME, WHAT DID THE WHITE — WHERE DID YOU GET
26 THE WHITE SHEET?
27 A.: WELL, I GOT IT FROM THE PROPERTY ROOM.
28 Q.: OKAY. WAS IT IN A BAG?
.
7787
1 A.: YES, IT WAS.
2 Q.: WHAT KIND OF BAG?
3 A.: I BELIEVE IT WAS IN A BROWN PAPER BAG.
4 Q.: KIND OF LIKE THE BROWN PAPER BAGS WE SEE JUST RIGHT
5 IN FRONT OF YOU?
6 A.: YES.
7 Q.: DO YOU RECALL WHETHER THE BAG WAS SEALED OR NOT?
8 A.: YES, IT WAS SEALED.
9 Q.: DID YOU OPEN THE BAG?
10 A.: YES, I DID.
11 Q.: AND DID YOU THEN REMOVE THE SHEET?
12 A.: YES.
13 Q.: DID YOU TAKE ANY PHOTOGRAPHS OF THE SHEET?
14 A.: I WOULD NEED TO CHECK MY NOTES. I DON’T REMEMBER.
15 Q.: PLEASE.
16 A.: NOW I SPECIFICALLY NOTE HERE THAT I DID NOT TAKE A
17 PHOTO OF ITEM 89.
18 Q.: I’M SORRY.
19 WHAT — YOU SAID "HERE" AND JUST SO THE RECORD’S
20 CLEAR, COULD YOU PLEASE TELL ME TO WHAT YOU WERE MAKING
21 REFERENCE?
22 A.: IT’S PAGE 59A OUT OF 125 ON MY REPORT DATED MAY
23 8TH, 2002.
24 Q.: WITH REGARD TO THE SHEET, DID YOU TAKE IT BACK TO
25 THE LABORATORY?
26 A.: WELL, I CHECKED IT OUT OF THE PROPERTY ROOM.
27 Q.: YES.
28 A.: I TOOK IT TO AN EXAMINATION ROOM AND THEN ANALYZED
.
7788
1 IT THERE.
2 Q.: WHEN YOU TOOK IT TO THE EXAMINATION ROOM, CAN YOU
3 GIVE US — WHAT DOES THAT LOOK LIKE? WHAT DOES THE ROOM LOOK
4 LIKE? WHAT KIND OF ROOM IS IT?
5 A.: IT’S A FAIRLY LARGE ROOM. AND IT HAS I THINK THREE
6 EXAMINATION TABLES AND SEVERAL PIECES OF EQUIPMENT. AND I USED
7 A TABLE — A LARGE WHITE TABLE IN THE BACK CORNER OF THE ROOM
8 AND I DON’T — IT’S FAIRLY WELL LIT. I DON’T KNOW WHAT ELSE YOU
9 WOULD LIKE.
10 Q.: DID YOU HAVE ASSISTANCE?
11 A.: I THINK THE MAJORITY OF THE TIME I WAS ALONE.
12 Q.: DID YOU OPEN THE SHEETS YOURSELF?
13 A.: YES, I DID.
14 Q.: BEFORE YOU OPENED THE SHEET DID YOU INSPECT THE
15 SHEET TO SEE WHETHER OR NOT, FOR INSTANCE, THERE WAS ANY KINDS
16 OF STAIN ON IT?
17 A.: WELL, I DID THAT AS PART OF MY EVALUATION OF THE
18 SHEET. I DON’T KNOW EXACTLY —
19 Q.: OKAY. FOR INSTANCE, DID YOU SEE ANY DIRT ON THE
20 SHEET?
21 A.: YES.
22 Q.: AS THOUGH THE SHEET HAD BEEN PLACED ON THE GROUND
23 TO ALLOW THE BODY TO BE PLACED INTO IT?
24 A.: THAT CERTAINLY IS POSSIBLE. THE SHEET WAS VERY
25 DIRTY.
26 Q.: AND YOU WERE AWARE THAT THE SHEET ITSELF APPARENTLY
27 HAD BEEN ROLLED AROUND DANIELLE VAN DAM?
28 A.: THAT IT HAD BEEN WRAPPED AROUND HER BODY?
.
7789
1 Q.: YES.
2 A.: NO. ACTUALLY, I DON’T KNOW THAT. I JUST — THE
3 INFORMATION I HAVE IS WHAT’S WRITTEN ON THE PACKAGING THAT IT
4 WAS A SHEET TAKEN FROM AROUND HER BODY.
5 Q.: SO IT SOUNDS AS THOUGH IT WAS AROUND HER BODY IN
6 SOME MANNER?
7 A.: YES.
8 Q.: YOU’RE AWARE THAT THE BODY WAS LOCATED IN A DUMP
9 SITE, IS THAT RIGHT?
10 A.: I KNOW — I’M NOT REALLY AWARE OF WHERE THE BODY
11 WAS BECAUSE I NEVER SAW THE SITE.
12 Q.: OKAY.
13 DID YOU EVER SEE PHOTOS OF THE SITE?
14 A.: I DIDN’T SEE PHOTOS OF THE SITE.
15 Q.: SO YOU DON’T KNOW WHETHER OR NOT, FOR INSTANCE,
16 THERE WOULD HAVE BEEN A TRANSFER FROM THE SITE TO THE
17 EXAMINATION ROOM, CORRECT?
18 MR. CLARKE: OBJECTION, CALLS FOR SPECULATION.
19 THE COURT: SUSTAINED.
20
21 BY MR. FELDMAN:
22 Q.: DO YOU KNOW WHETHER OR NOT THERE WAS A TRANSFER OF
23 FIBERS OR OTHER MATERIAL?
24 MR. CLARKE: SAME OBJECTION.
25 THE COURT: OVERRULED.
26 YOU CAN ANSWER THAT YES OR NO.
27 THE WITNESS: WELL, I’M FAIRLY CONFIDENT THAT THERE WAS A
28 TRANSFER OF MATERIALS FROM THE SITE TO THE EXAMINATION ROOM,
.
7790
1 MOSTLY BECAUSE OF ALL THE DIRT AND DEBRIS AND VEGETATION THAT
2 WAS ON THE SHEET.
3
4 BY MR. FELDMAN:
5 Q.: YOU NOTED ON THE SHEET, DID YOU NOT, A NUMBER OF
6 MULTI-COLORED ACRYLIC FIBERS?
7 A.: I NOTED SEVERAL DIFFERENT FIBERS, EACH FIBER WAS
8 ITS OWN SPECIFIC COLOR. THERE WERE SEVERAL RED FIBERS AND
9 SEVERAL ORANGE FIBERS AND SEVERAL GREEN FIBERS, BUT THERE WERE
10 NOT SEVERAL COLORS ALL IN ONE FIBER.
11 Q.: BUT IT IS THE CASE THAT A MULTI-COLORED ITEM CAN
12 CONTAIN A NUMBER OF DIFFERENT COLORED FIBERS?
13 A.: YES.
14 Q.: WITH REGARD TO THE NUMBER OF MULTI-COLORED
15 EQUIPMENT — I’M SORRY.
16 DID YOU JUST TELL ME YOU DID IDENTIFY OR LOCATE ON
17 THE SHEET A NUMBER OF MULTI-COLORED ACRYLIC FIBERS?
18 MR. CLARKE: OBJECTION, I THINK THIS IS BEYOND THE SCOPE,
19 YOUR HONOR.
20 THE COURT: WELL, IT’S BEEN ASKED AND ANSWERED ON A
21 PREVIOUS OCCASION. YOU COVERED THE SAME GROUND. THAT’S MY
22 RECOLLECTION.
23 MR. FELDMAN: OKAY.
24 Q.: IT IS A FACT, THOUGH, THAT YOU DID NOT EXCLUDE AS
25 HAVING COME FROM A SINGLE COLORED FABRIC THE FIBERS, THE
26 MULTI-COLORED ACRYLIC FIBERS THAT YOU LOCATED ON THE SHEET?
27 MR. CLARKE: SAME OBJECTION.
28 THE COURT: OVERRULED.
.
7791
1 YOU CAN ANSWER, MA’AM, IF YOU UNDERSTAND IT.
2 MR. CLARKE: ACTUALLY, ALSO AN OBJECTION, MISSTATES THE
3 EVIDENCE.
4 THE COURT: OVERRULED.
5 YOU CAN ANSWER.
6 THE WITNESS: I THINK I UNDERSTAND.
7 ARE YOU ASKING ME IF A MULTI-COLORED ITEM COULD
8 HAVE CONTRIBUTED SEVERAL DIFFERENT COLORS OF THE FIBERS ON THE
9 SHEET?
10
11 BY MR. FELDMAN:
12 Q.: OKAY. I’M SORRY, THAT’S —
13 A.: IS THAT WHAT YOU’RE ASKING?
14 Q.: THAT’S ONE PART OF WHAT I WAS THINKING ABOUT.
15 COULD YOU PLEASE ANSWER THAT QUESTION?
16 A.: YES. CERTAINLY IN A MULTI-COLORED ITEM WHICH WOULD
17 BE SOMETHING WITH LOTS OF DIFFERENT COLORS AND FIBERS IN IT
18 COULD CONTRIBUTE SEVERAL DIFFERENT COLORS OF FIBERS TO
19 SOMETHING.
20 Q.: CAN WE CALL THAT SEVERAL COLORS JUST A
21 CONSTELLATION FOR PURPOSES OF COMMUNICATION, CONSTELLATION OF
22 COLORS?
23 A.: I SUPPOSE SO.
24 Q.: ALL RIGHT.
25 DID YOU FIND A SIMILAR CONSTELLATION OF COLORS AS
26 YOU FOUND ON THE SHEET IN THE MOTOR HOME?
27 A.: I DIDN’T DO ANY EXAMINATION OF THE ITEMS OF
28 EVIDENCE FROM THE MOTOR HOME. SO —
.
7792
1 Q.: DID YOU FIND A SIMILAR CONSTELLATION OF COLORS IN
2 THE S. U. V.?
3 A.: I WAS LOOKING FOR SPECIFIC THINGS IN THE S. U. V.
4 I DEFINITELY NOTICED SIMILAR COLORS OF FIBERS. I DIDN’T SEE IN
5 THE TAPE LIFTS THAT I LOOKED AT ALL THE DIFFERENT TYPES OF
6 FIBERS THAT I HAD SEEN ON THE SHEET ON THE TAPE LIFTS FROM THE
7 S. U. V.
8 Q.: CAN YOU TELL US APPROXIMATELY HOW MANY FIBERS YOU
9 ACTUALLY COLLECTED OR WERE COLLECTED IN THE CASE, IF YOU KNOW?
10 A.: IN THE CASE?
11 Q.: YES, MA’AM.
12 A.: WELL, I COULDN’T TELL YOU. IT WAS THOUSANDS AND
13 THOUSANDS OF FIBERS.
14 Q.: IT IS THE CASE, ISN’T IT, THAT WITH REGARD TO THE
15 ITEMS OF EVIDENCE THAT ARE DEPICTED IN 163, THEY COULD HAVE COME
16 FROM A COMMON SOURCE BUT THEY COULD ALSO NOT HAVE COMMON FROM A
17 COMMON SOURCE?
18 A.: THAT IS CORRECT.
19 MR. FELDMAN: NO FURTHER QUESTIONS.
20 THE COURT: ALL RIGHT.
21 ANYTHING FURTHER, MR. CLARKE?
22 MR. CLARKE: YES, YOUR HONOR. THANK YOU.
23
24 REDIRECT EXAMINATION +
25 BY MR. CLARKE:
26 Q.: I BELIEVE MR. FELDMAN ASKED YOU ABOUT SOME OF THE
27 BLUE NYLON COMPARISONS THAT YOU PREVIOUSLY MADE, CORRECT?
28 A.: CORRECT.
.
7793
1 Q.: I THINK YOU’VE TESTIFIED ABOUT THAT PREVIOUSLY?
2 A.: YES.
3 Q.: WAS YOUR CONCLUSION WITH REGARD TO THE BLUE NYLON
4 FIBERS THAT THOSE FOUND IN MR. WESTERFIELD’S LAUNDRY ROOM WERE
5 CONSISTENT AND COULD HAVE COME FROM THE SAME SOURCE AS THE
6 FIBERS YOU FOUND IN THE BODY BAG?
7 A.: YES.
8 Q.: THESE ORANGE FIBERS, AND YOU’VE DESCRIBED THEM
9 TODAY ON EXHIBIT 165, AND YOU’VE DESCRIBED THEM IN YOUR PRIOR
10 TESTIMONY AS WELL, CORRECT?
11 A.: YES.
12 Q.: CAN YOU TELL FROM THE FACT OF THE LENGTH AND TYPE
13 OF FIBERS WHAT TYPE OF ITEM THEY COULD HAVE COME FROM OR ARE
14 MORE LIKELY TO HAVE COME FROM, HOWEVER YOU’RE ABLE TO PHRASE IT?
15 A.: THESE FIBERS, BECAUSE OF THEIR LENGTH, ARE MOST
16 LIKELY TO HAVE COME FROM SOMETHING THAT’S NOT VERY LOOSELY KNIT.
17 IN GENERAL, THAT WOULD BE SOME KIND OF BLANKET, LIKE A KNITTED
18 BLANKET, OR CERTAINLY A KNITTED SWEATER WOULD BE POSSIBLE, BUT
19 SOMETHING LIKE THAT WOULD BE THE MOST LIKELY SORT OF THAT TYPE
20 OF FIBER.
21 Q.: NOW, IN YOUR EXAMINATION AS DEPICTED ON EXHIBIT 165
22 FROM THE INTERIOR OF THE TOYOTA, HOW MANY ORANGE FIBERS DID YOU
23 FIND IN THE DRIVER’S SEAT?
24 A.: NONE.
25 Q.: DOES THAT INCLUDE THE ACTUAL PORTION WHERE ONE
26 WOULD SIT, THE SEAT FOR LACK OF A BETTER TERM?
27 A.: YES.
28 Q.: DOES THAT ALSO INCLUDE THE BACKREST OF THE DRIVER’S
.
7794
1 SEAT?
2 A.: YES.
3 Q.: AND THE HEADREST OF THE DRIVER’S SEAT?
4 A.: YES.
5 Q.: NOT IN ANY OF THOSE LOCATIONS?
6 A.: THAT’S CORRECT.
7 Q.: NOW, YOU ALSO DESCRIBED THE FACT THAT YOU NOTICED
8 SOME DIFFERENCE IN LENGTH AMONGST THE ORANGE FIBERS FROM THE
9 NECKLACE, FROM YOUR PREVIOUS TESTIMONY HERE AND FROM YOUR
10 TESTIMONY TODAY, CORRECT?
11 A.: YES.
12 Q.: IF THERE’S A DIFFERENCE IN LENGTH, WHY ISN’T THAT
13 AN EXCLUSION?
14 A.: WELL, THE LENGTH CERTAINLY IN FIBERS WILL VARY,
15 DEPENDING UPON HOW THEY COME TO BE BY THEMSELVES. WERE THEY
16 BROKEN OFF, PICKED OFF, DID THEY FALL OFF, THE LENGTHS ARE GOING
17 TO CERTAINLY BE DIFFERENT.
18 WHAT I WILL DO IN THIS TYPE OF CASE IS I’LL LOOK AT
19 ALL OF THE FIBERS IN QUESTION, LET’S SAY THE ORANGE FIBERS HERE,
20 AND I WILL MEASURE ALL OF THEM OR I’LL MEASURE THE LONGEST, THE
21 FEW OF THE LONGEST AND A FEW OF THE SHORTEST, DEPENDING ON HOW
22 MANY FIBERS I HAVE, AND I WILL GET A RANGE OF LENGTHS AND THAT
23 RANGE IS A MACROSCOPIC OR A BIG CHARACTERISTIC THAT I’M GOING TO
24 BE USING IN MY COMPARISON.
25 SO THEN WHEN I HAVE AN UNKNOWN FIBER OR QUESTIONED
26 FIBER I’LL MEASURE THAT ONE AND SEE HOW LONG IT IS AND SEE IF
27 THE LENGTH OF THAT PARTICULAR FIBER FALLS WITHIN THE RANGE OF
28 FIBERS THAT I’M LOOKING AT FROM MY KNOWNS. AND IF IT FALLS
.
7795
1 WITHIN THAT RANGE, THEN THAT’S CONSIDERED SIMILAR, AND THAT
2 PARTICULAR CHARACTERISTIC IS CONSIDERED SIMILAR.
3 Q.: ON THE CHART, EXHIBIT 165, AND I THINK WE SEE —
4 WELL, ONE FIBER ON THE NECKLACE, OBVIOUSLY, THE REMAINING FIBERS
5 FROM THE TOYOTA, LOOK LIKE THEY TOTAL 20?
6 A.: YES.
7 Q.: WERE ALL OF THOSE FIBERS COMPARED BY YOU IN TERMS
8 OF MICROSCOPIC COMPARISON?
9 A.: ALL OF THE FIBERS WERE ANALYZED MICROSCOPICALLY.
10 Q.: AND DID ALL 120 OF THOSE FIBERS MICROSCOPICALLY
11 APPEAR TO BE CONSISTENT WITH THE ORANGE FIBER FROM THE NECKLACE?
12 A.: YES.
13 Q.: AS FAR AS ALL OF YOUR WORK, IS ALL OF IT — AND YOU
14 RECORD YOUR WORK IN TERMS OF RAW NOTES, CORRECT?
15 A.: YES.
16 Q.: INCLUDING THE RESULTS FROM THE INFRARED TESTS ON
17 THOSE FIBERS THAT WERE SUBJECTED TO THAT TEST?
18 A.: YES.
19 Q.: PHOTOGRAPHS?
20 A.: YES.
21 Q.: ALL OF THEM AVAILABLE FOR REVIEW BY A QUALIFIED
22 EXPERT?
23 A.: YES.
24 Q.: ARE ALL THE FIBERS AVAILABLE?
25 A.: YES.
26 Q.: CAN THEY BE RE-EXAMINED IF THERE’S ANY DOUBT ABOUT
27 THE ACCURACY OF YOUR RESULTS?
28 A.: YES, THEY ARE.
.
7796
1 Q.: I THINK YOU HAD DESCRIBED EARLIER THAT THE FIBER
2 FROM THE NECKLACE WAS A DULL ORANGE?
3 A.: YES.
4 Q.: AND YOU THINK YOU DESCRIBED OTHER FIBERS AS A
5 DIFFERENCE, AND I CAN’T REMEMBER HOW YOU CHARACTERIZED THE
6 ORANGE. DO YOU RECALL THAT?
7 A.: APPARENTLY I USED BRIGHT ORANGE.
8 Q.: ALL RIGHT.
9 WHY DOESN’T THAT EXCLUDE A FIBER OR TWO FIBERS IF
10 ONE’S DULL AND ONE’S BRIGHT AS COMING FROM THE SAME SOURCE?
11 A.: FIRST OF ALL, I’M LOOKING AT THESE FIBERS AT
12 VARYING DIFFERENT TIMES. AND SECONDLY, WITH THESE FIBERS IN
13 PARTICULAR, AND I THINK YOU PROBABLY HAVE SEEN THIS WHEN YOU’VE
14 LOOKED AT ALL OF THE PHOTOGRAPHS THAT WE’VE SHOWN YOU ABOUT
15 THESE ORANGE FIBERS, THEY LOOK VERY DIFFERENT AS YOU GO ALONG
16 THE LENGTH. SOME AREAS WERE MUCH LIGHTER THAN OTHERS AND, IN
17 PARTICULAR, THAT ORANGE FIBER FROM AROUND THE NECKLACE WAS A
18 LIGHTER COLOR THAN SOME OF THE OTHER ONES.
19 SO AGAIN, COLOR IS A MACROSCOPIC OR BIG
20 CHARACTERISTIC WE’RE LOOKING FOR. SO I LOOK FOR A RANGE OF
21 COLORS AND SEE IF MY QUESTION FITS WITHIN THAT RANGE.
22 THESE FIBERS, THERE CERTAINLY WAS A RANGE BETWEEN
23 LIGHTER AND DARKER ORANGE, OR DULLER AND BRIGHTER ORANGE. THE
24 KEY THERE, THE MOST IMPORTANT POINT THERE IS THAT I HAVE TO FIND
25 THAT PARTICULAR COLOR REPRESENTED IN THESE OTHER FIBERS IN ORDER
26 TO SAY THEY’RE SIMILAR. SO NO MATTER WHAT I CALL THEM, IF I PUT
27 THEM NEXT TO EACH OTHER AND THEY DON’T LOOK THE SAME, THEN
28 THAT’S AN EXCLUSION. BUT IF I PUT THEM TOGETHER AND THEY LOOK
.
7797
1 THE SAME COLOR THROUGHOUT THE LENGTH WHEN YOU LINE THEM RIGHT
2 UP, THAT IS THE SIMILARITY.
3 Q.: WAS THAT THE CASE WITH THE FIBER FROM THE NECKLACE,
4 ITEM 120?
5 A.: YES.
6 Q.: DID IT FIT WITHIN THE RANGE OF COLOR YOU OBSERVED
7 IN ALL THE ORANGE FIBERS THAT YOU RECOVERED FROM MR.
8 WESTERFIELD’S HOUSE AS WELL AS FROM THE TOYOTA?
9 A.: YES.
10 MR. CLARKE: THANK YOU.
11 NO FURTHER QUESTIONS, YOUR HONOR.
12 THE COURT: ANYTHING FURTHER, MR. FELDMAN?
13
14 RECROSS-EXAMINATION +
15 BY MR. FELDMAN:
16 Q.: HOW LONG IS THE ORANGE FIBER ON THE NECKLACE, IF
17 YOU KNOW?
18 A.: IT’S APPROXIMATELY AN INCH AND A HALF LONG.
19 Q.: BUT WE DON’T HAVE IT?
20 MR. CLARKE: OBJECTION, MISSTATES THE EVIDENCE.
21 THE COURT: SUSTAINED.
22 MR. FELDMAN: WE DON’T HAVE IT, YOUR HONOR.
23 THE COURT: IT’S NOT PRESENT IN THE COURTROOM. WHETHER
24 WE HAVE IT OR NOT IS SUBJECT TO DEBATE.
25 MR. FELDMAN: YES, YOUR HONOR.
26 THE COURT: SO REPHRASE YOUR QUESTION.
27
28 ///
.
7798
1 BY MR. FELDMAN:
2 Q.: MA’AM, WOULD YOU MAKE THE ORANGE FIBER AVAILABLE,
3 PLEASE?
4 A.: I’M SORRY?
5 Q.: WILL YOU PLEASE MAKE THAT ORANGE FIBER AVAILABLE?
6 MR. CLARKE: YOUR HONOR, WE CAN DISCUSS THIS —
7 THE COURT: WE CAN DISCUSS THIS OUT OF THE PRESENCE OF
8 THE JURY.
9
10 BY MR. FELDMAN:
11 Q.: DO FIBERS SHED DURING INNOCENT ACTIVITY?
12 A.: YES.
13 Q.: WOULD AN ACRYLIC MULTI-COLORED BLANKET SHED ONLY
14 ORANGE FIBERS IF IT HAD ORANGE IN IT?
15 A.: NO.
16 Q.: SO IF THERE WAS AN ORANGE BLANKET — AN ACRYLIC
17 MULTI-COLORED BLANKET THAT HAD SOME ORANGE IN IT, IT MIGHT HAVE
18 SOME BLUE IN IT, IT MIGHT HAVE SOME EMERALD GREEN IN IT, IT
19 MIGHT HAVE SOME WHITE IN IT, ANY DIFFERENT NUMBER OF COLORS, IS
20 THAT RIGHT?
21 A.: YES.
22 Q.: SO THE CONSTELLATION OF COLORS THAT CAME OUT OF THE
23 SHEET, I THINK IT’S 91, COULD HAVE COME FROM A MULTI-COLORED
24 ACRYLIC BLANKET?
25 MR. CLARKE: OBJECTION, CALLS FOR —
26 THE COURT: SUSTAINED.
27 ///
28 ///
.
7799
1 BY MR. FELDMAN:
2 Q.: IS IT FAIR TO SAY THAT THE CONSTELLATION OF COLORS
3 WHICH I BELIEVE CAME FROM 91, THE SHEET, COULD HAVE COME FROM A
4 MULTI-COLORED BLANKET?
5 MR. CLARKE: SAME OBJECTION,
6 THE COURT: OVERRULED.
7 YOU CAN ANSWER.
8 THE WITNESS: YES.
9 MR. FELDMAN: THANK YOU VERY MUCH.
10 NO FURTHER QUESTIONS.
11 THE COURT: ANYTHING FURTHER, MR. CLARKE?
12 MR. CLARKE: NO. THANK YOU, YOUR HONOR.
13 THE COURT: ALL RIGHT. MS. SHEN, YOU’RE FREE TO LEAVE.
14 THANK YOU FOR COMING IN. REMEMBER YOU’RE STILL UNDER AN
15 ADMONITION NOT TO DISCUSS YOUR TESTIMONY EXCEPT AS IT RELATES TO
16 YOUR PROFESSIONAL DUTIES.
17 WOULD YOU KINDLY TAKE THE SCISSORS AND THE EXHIBIT
18 AND HAND THEM TO MR. DUSEK ON YOUR WAY BY?
19 THE WITNESS: YES, I WILL.
20 MR. FELDMAN: YOUR HONOR, SUBJECT TO RECALL.
21 THE COURT: ALL RIGHT. YOU’LL BE SUBJECT TO RECALL.
22 MS. SHEN, I THINK IT WOULD BE BEST IF YOU PUT THE
23 SLIDES BACK IN THE ENVELOPE.
24 ALL RIGHT. THE RECORD SHOULD REFLECT THAT THE
25 SLIDES HAVE INDEED BEEN RETURNED TO THE ENVELOPE.
26 OKAY, LADIES AND GENTLEMEN, WE’RE GOING TO BREAK
27 FOR THE EVENING. HOPEFULLY YOU’LL GET HOME IN TIME FOR THE
28 FIRST PITCH OF THE ALL-STAR BREAK. AT THE RATE THE PLAYERS AND
.
7800
1 OWNERS ARE GOING THIS MAY BE THE LAST YEAR WE HAVE AN ALL-STAR
2 GAME, OR BASEBALL FOR THAT MATTER. AT ANY RATE, WE’VE GOT
3 SOMETHING THAT IS GREAT DIVERSION FOR TONIGHT.
4 PLEASE REMEMBER THE ADMONITION OF THE COURT NOT TO
5 DISCUSS ANY OF THE EVIDENCE OR TESTIMONY AMONG YOURSELVES OR
6 WITH ANY OTHER PERSONS, NOR FORM OR EXPRESS ANY OPINIONS ON THE
7 MATTER UNTIL IT IS SUBMITTED TO YOU.
8 LADIES AND GENTLEMEN, IT APPEARS THAT YOU WILL HAVE
9 THURSDAY OFF. IT APPEARS THAT AT THIS POINT IN TIME WE WILL BE
10 CONCLUDING WITH A FULL DAY TOMORROW, AND THERE IS SCHEDULING
11 INVOLVED WITH AN INDIVIDUAL THAT WILL BE HERE ON JULY 22ND BUT
12 IS UNAVAILABLE THIS WEEK. AND NEXT WEEK, OF COURSE, WE’RE DARK.
13 I’LL ADDRESS THAT TOMORROW.
14 HAVE A SAFE AND A PLEASANT EVENING. WE’LL SEE YOU
15 AT 9:00 A.M. TOMORROW MORNING. 9 O’CLOCK TOMORROW MORNING.
16
17 (AT 4:32 P.M. THE JURY WAS EXCUSED
AND THE FOLLOWING PROCEEDINGS WERE HAD:)
18
19 THE COURT: OKAY. THE RECORD SHOULD REFLECT THE JURORS
20 AND ALTERNATES HAVE LEFT THE COURTROOM.
21 COUNSEL, IS THERE ANY REASON FOR US TO GET TOGETHER
22 TOMORROW MORNING?
23 MR. FELDMAN: YOUR HONOR, WE HAD DISCUSSED FORMALITIES.
24 DID YOU WANT TO TAKE THOSE UP TOMORROW? I REALIZE WHAT TIME IT
25 IS BUT WE’VE GOT JUST THE FORMALITIES THAT WE ADDRESSED. DID
26 YOU WANT TO MEET A COUPLE MINUTES BEFORE? WHATEVER THE COURT
27 WISHES.
28 THE COURT: WE CAN DO THOSE RIGHT NOW.
.
7801
1 THE PEOPLE REST?
2 MR. DUSEK: YES, AND ASK THAT THE ITEMS THAT HAVE NOT
3 BEEN ADMITTED BE ADMITTED.
4 THE COURT: ALL RIGHT.
5 LET’S SEE, PEOPLE’S EXHIBITS UP TO ITEM 152 HAD
6 PREVIOUSLY BEEN ADMITTED BY THE COURT. THAT LEAVES — I TELL
7 YOU WHAT. RATHER THAN GO —
8 MR. FELDMAN: COULD WE PLEASE DEFER THE RULINGS?
9 THE COURT: I THINK WE’LL JUST DEFER THAT, SO SUBJECT TO
10 THE RECEIPT OF THE PEOPLE’S EXHIBITS THE PEOPLE REST; IS THAT
11 CORRECT?
12 MR. DUSEK: YES.
13 THE COURT: ALL RIGHT.
14 MR. FELDMAN: YOUR HONOR, IF IT’S REASONABLE TO REQUEST
15 PLEASE THAT THAT STATEMENT BE MADE IN THE PRESENCE OF THE JURY,
16 THAT IS, THAT —
17 THE COURT: OH, NO, THEY WILL. BUT I’D LIKE TO TAKE CARE
18 OF IT. YOU ASKED FOR THE FORMALITY.
19 MR. FELDMAN: YES YOUR HONOR.
20 THE COURT: WE’RE TAKING CARE OF THE FORMALITY OF IT
21 RIGHT NOW.
22 MR. FELDMAN: YES, YOUR HONOR.
23 THE COURT: ALL RIGHT.
24 AND YOU HAD INDICATED YOU WANTED A LOT OF TIME WHEN
25 THE PEOPLE RESTED?
26 MR. FELDMAN: YES, FOR A BRIEF ARGUMENT. MR. BOYCE, YOUR
27 HONOR.
28 MR. BOYCE: WE HAVE AN 1118 MOTION, YOUR HONOR. I’M
.
7802
1 REMINDED IT’S AN 1118.1, TO BE TECHNICALLY CORRECT. WE DON’T —
2 AND I WILL SUBMIT IT ON EVERYTHING BUT THE — I DON’T BELIEVE
3 THERE IS SUFFICIENT EVIDENCE TO PROVE THE SPECIAL CIRCUMSTANCE
4 OF FROM A MURDER DURING THE COURSE OF A KIDNAPPING.
5 ALSO, ON THE 311, I DON’T BELIEVE THERE’S
6 SUFFICIENT EVIDENCE TO SHOW WITH A SUFFICIENT DEGREE OF
7 CERTAINTY THAT THERE’S ANY CHILD PORNOGRAPHY IN THIS CASE.
8 THE COURT: ALL RIGHT.
9 PEOPLE CARE TO RESPOND?
10 MR. DUSEK: THE EVIDENCE IS OVERWHELMING THAT DANIELLE
11 VAN DAM WAS KIDNAPPED FROM HER HOME, THAT SHE WAS KILLED DURING
12 THAT KIDNAPPING. AT ANY POINT FROM THE TIME SHE WAS TAKEN UNTIL
13 SHE WAS KILLED SHE WAS BEING KIDNAPPED AND SHE TURNED UP DEAD
14 DOWN AT DEHESA.
15 IT’S UNBELIEVABLE THAT THERE WOULD BE ANY CONCERN
16 THAT THIS WAS NOT A KIDNAPPING OR A MURDER, AND ALL OF THE
17 PHYSICAL EVIDENCE, ALL OF THE STATEMENTS POINT DIRECTLY AT THE
18 DEFENDANT.
19 THE COURT: OKAY.
20 WITHOUT BELABORING THE LEGAL POINT, AND ALSO
21 ATTEMPTING TO AVOID WHAT JUDGE DOMNITZ RAN INTO AT A SIMPLE
22 PRELIMINARY HEARING, I WILL SIMPLY SAY AN 1118.1 MOTION BRINGS
23 TO THE COURT THE QUESTION OF WHETHER OR NOT IN THE BEST LIGHT
24 POSSIBLE GIVEN TO THE PROSECUTION’S EVIDENCE IS THERE SUFFICIENT
25 EVIDENCE TO GO TO THE JURY ON THE QUESTION OF THE GUILT OR
26 INNOCENCE OF MR. WESTERFIELD ON THE CHARGES HE IS FACING.
27 THE ANSWER TO THAT QUESTION IS YES. THE MOTION IS
28 DENIED.
7803
1 ALL RIGHT. LET’S SEE, WE’LL DISCUSS JURY IN —
2 LET’S GO OVER EXHIBITS TOMORROW MORNING SO THAT WE CAN HAVE
3 THOSE CONCLUDED BEFORE THE JURY COMES IN. SO BE HERE ABOUT 10
4 MINUTES EARLY.
5 MR. FELDMAN: YES, YOUR HONOR.
6 THE COURT: ALL RIGHT.
7 WE’LL BE IN RECESS THEN FOR THE PUBLIC UNTIL 9:00.
8 COUNSEL AT 8:50.
9
10 (AT 4:36 P.M. AN ADJOURNMENT WAS TAKEN
UNTIL 8:50 A.M. WEDNESDAY, JULY 10, 2002.)
11
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