11 – Day 3- June 6th 2002 – Transcript criminal trial David Westerfield

DAY 3 – SAN DIEGO, CALIFORNIA, THURSDAY, JUNE 6, 2002, (afternoon 2)



WITNESSES:
Brenda Van Dam,
Sean Brown (bar manager at Dad’s cafe)

3919
1 THE COURT: WELCOME BACK, LADIES AND GENTLEMEN.

2 ALL RIGHT. MR. FELDMAN.

3 MR. FELDMAN: THANK YOU, YOUR HONOR.

4 Q. I’M SORRY. ON THE 13TH — I’M SORRY. ON THE

5 TUESDAY, I THINK YOU MENTIONED ON DIRECT EXAMINATION, THAT THE

6 DOG HAD SCRATCHED DANIELLE. DO YOU RECALL THAT TESTIFYING TO

7 MR. DUSEK?

8 A. I THINK THE DOG SCRATCHED DANIELLE ON THURSDAY.

9 Q. AND DO YOU RECALL THAT DANIELLE WAS SO UPSET ABOUT

10 IT SHE WAS CRYING AND COMPLAINING A LOT?

11 A. SHE WAS MAD AT THE DOG.

12 Q. DO YOU REMEMBER TELLING A POLICE OFFICER SHE WAS

13 CRYING BECAUSE THE DOG SCRATCHED HER?

14 A. YES.

15 Q. AND YOU TOLD HER “GO SIT ON YOUR BED FOR A FEW

16 MINUTES,” AND SHE SAID — AND THAT WAS BASICALLY HOW YOU HANDLED

17 IT, IS THAT RIGHT?

18 A. I CHECKED THE SCRATCH TO MAKE SURE SHE WAS OKAY,

19 AND THEN I ASKED HER TO SIT ON HER BED FOR A FEW MINUTES.

20 Q. NOW, YOU JUST TOLD US THAT YOU THOUGHT THAT THAT

21 OCCURRED ON THURSDAY.

22 DO YOU RECALL BEING INTERVIEWED BY LAW ENFORCEMENT

23 AND BEING ASKED QUESTIONS CONCERNING THE DATE THAT THE DOG

24 SCRATCHED YOUR DAUGHTER?

25 A. YES.

26 Q. DO YOU RECALL TELLING LAW ENFORCEMENT THAT IT WAS

27 TUESDAY, NOT THURSDAY?

28 A. I DON’T RECALL TELLING THEM THAT.
3920
1 Q. SORRY, LET ME JUST CLARIFY THIS. YOU DON’T

2 REMEMBER WHETHER OR NOT YOU TOLD THE OFFICER IT WAS A TUESDAY OR

3 IT DIDN’T HAPPEN ON TUESDAY?

4 A. I DON’T REMEMBER WHETHER OR NOT I TOLD HIM THAT.

5 Q. FINALLY, ABOUT WHAT TIME DID YOU GO TO THE BAR ON

6 FRIDAY THE 1ST?

7 A. ABOUT 8:45.

8 Q. WHEN YOU GOT TO THE BAR DO YOU REMEMBER WHETHER OR

9 NOT YOU SAW DAVID WESTERFIELD THERE?

10 A. YES.

11 Q. DID YOU SEE HIM THERE WHEN YOU ARRIVED, MA’AM?

12 A. YES.

13 Q. AND WHERE WAS HE?

14 A. STANDING AT THE BAR.

15 Q. I THINK WE HAD A CHART THAT MR. DUSEK SHOWED YOU ON

16 THE INSIDE OF DAD’S. YOU KNOW BETTER THAN I WHETHER 31 — I’M

17 GOING TO ASK YOU TO ILLUSTRATE WHERE YOU WERE SITTING. I JUST

18 WANT YOU TO TELL ME — WOULD YOU LIKE THIS CHART OR I’LL GET

19 ANOTHER ONE.

20 A. THIS IS FINE.

21 Q. IF YOU COULD JUST SHOW US, PLEASE, IF YOU SEE WHERE

22 WAS MR. WESTERFIELD WHEN YOU FIRST ARRIVED?

23 A. HE WAS HERE.

24 Q. AND FOR THE RECORD, YOU’RE POINTING TO PHOTOGRAPH

25 “B”. TO THE LEFT SIDE IT APPEARS AS THOUGH IT’S THE FIRST CHAIR

26 AT THE BAR, IS THAT —

27 A. STANDING.

28 Q. I’M SORRY, IN PEOPLE’S — COURT’S 31?

3921
1 A. YES. HE WAS STANDING HERE.

2 Q. OKAY.

3 AND THEN YOU AND DENISE AND BARBARA CAME IN

4 TOGETHER, IS THAT RIGHT?

5 A. YES.

6 Q. AND WAS IT ABOUT THAT TIME THAT THERE WAS SOME KIND

7 OF A GREETING?

8 A. DENISE WAS TALKING TO THE DOOR MAN, AND A COUPLE

9 MINUTES LATER I TOLD BARBARA, I SHOWED HER THAT DAVE WAS ALREADY

10 THERE AND SHE WALKED UP AND INTRODUCED HERSELF TO HIM.

11 Q. WHERE WERE YOU WHEN YOU HAD THAT COMMUNICATION WITH

12 BARBARA, IF YOU RECALL?

13 A. AT THE FRONT — AT THIS FRONT WHERE YOU GET IN.

14 Q. OKAY.

15 FOR THE RECORD, YOU POINTED TO PHOTOGRAPH “B” IN 31

16 TO THE RIGHT SIDE WHERE IT APPEARS AS THOUGH THERE’S KIND OF A

17 DOORWAY. DO I HAVE THAT RIGHT, MA’AM?

18 A. YES.

19 Q. SO YOU WERE STANDING OVER BY THE DOORWAY AND —

20 WHAT YOU’VE JUST POINTED TO, AND KIND OF LOOK ACROSS THE BAR OR

21 ACROSS THE SEATING AREA WHERE MR. WESTERFIELD WAS SEATED; IS

22 THAT CORRECT — STANDING?

23 A. STANDING.

24 Q. DO YOU REMEMBER YOU TOLD US THAT LATER THAT NIGHT

25 YOU WERE PLAYING POOL, RIGHT?

26 A. YES.

27 Q. AND I THINK YOU TOLD US ONE OF THE MEN HAD GLASSES

28 AND YOU DIDN’T HAVE MUCH IN THE WAY OF MEMORY OF THE OTHER MAN,
3922
1 IS THAT RIGHT?

2 A. YES.

3 Q. DO YOU REMEMBER WHETHER OR NOT EITHER OF THOSE MEN

4 WERE PRESENT WITH MR. WESTERFIELD AT THE TIME BARBARA APPROACHED

5 MR. WESTERFIELD?

6 A. I DON’T THINK THEY WERE.

7 Q. DO YOU RECALL WHAT YOU WERE DOING AT OR NEAR THE

8 TIME THESE OTHER MEN ARRIVED?

9 A. TALKING WITH BARBARA AND DENISE.

10 Q. WHERE?

11 A. AT THE BAR RIGHT HERE. WE HAD THESE THREE CHAIRS

12 AND THIS ONE WAS PULLED OUT.

13 Q. I’M SORRY, BUT WHEN YOU SAY “HERE,” FOR THE RECORD

14 YOU DESCRIBED —

15 A. HE —

16 Q. — THE THREE CHAIRS THAT APPEAR IN “B” ON THE LEFT

17 SIDE; IS THAT CORRECT?

18 A. YES.

19 Q. DID YOU ENGAGE THE MEN IN CONVERSATION AT ALL?

20 A. NOT THAT I RECALL.

21 Q. DID MR. WESTERFIELD BUY DRINKS FOR YOU AND DENISE

22 AND BARBARA?

23 A. YES.

24 Q. HOW MANY ROUNDS, DO YOU RECALL?

25 A. I THINK ONE OR TWO.

26 Q. DID HE PUT MONEY ON THE BAR OR SOMETHING AND JUST

27 OFFER PEOPLE TO DRINK?

28 A. HE LEFT HIS MONEY ON THE BAR.
3923
1 Q. ALL RIGHT.

2 AND WHEN — WAS THAT BEFORE OR AFTER BARBARA

3 INTRODUCED HERSELF TO DAVID?

4 A. THE DRINKS WERE BOUGHT AFTER.

5 Q. OKAY.

6 HOW MUCH DID YOU HAVE TO DRINK THAT NIGHT, AS BEST

7 YOU CAN RECOLLECT IT, AT THE BAR?

8 A. THREE CRANBERRY AND VODKAS, A SHOT OF TEQUILA, A

9 RED BULL, SOME WATER AND MAYBE A DIET COKE.

10 Q. AND ABOUT WHAT TIME WAS IT THAT YOU AND THE WOMEN

11 WENT OUT AND SMOKED SOME MORE MARIJUANA?

12 A. PROBABLY ABOUT BETWEEN 9:30 AND 10:00.

13 Q. SO YOU THINK IT WAS JUST SHORTLY AFTER YOU ARRIVED?

14 A. IT WAS PROBABLY CLOSER TO 10:00.

15 Q. WHEN THE DECISION WAS MADE TO GO OUT AND SMOKE

16 MARIJUANA, YOU HAD ALREADY HAD AT LEAST ONE OF THE VODKAS; ISN’T

17 THAT CORRECT?

18 A. YES.

19 Q. AND YOU, DENISE AND BARBARA DECIDED TO GO OUT TO

20 YOUR CAR IN THE PARKING LOT, CORRECT?

21 A. YES.

22 Q. THE REASON YOU WENT OUT TO THE CAR IN THE PARKING

23 LOT WAS SO THAT YOU COULD GET HIGH, ISN’T THAT RIGHT?

24 A. YES.

25 Q. AND APPARENTLY YOU WEREN’T — HAD THE MARIJUANA

26 THAT YOU HAD SMOKED EARLIER WORN OFF OR YOU WANTED TO GET

27 HIGHER?

28 A. I GUESS IT HAD WORE OFF.
3924
1 Q. WHEN YOU WENT INTO THE CAR — I’M SORRY, YOU

2 ACTUALLY WENT TO THE EXCURSION, DIDN’T YOU?

3 A. YES.

4 Q. YOU WENT INTO THE DRIVER’S SEAT, DID YOU?

5 A. YES.

6 Q. BARBARA AND DENISE WERE WHERE?

7 A. BARBARA WAS IN THE PASSENGER SEAT AND DENISE WAS IN

8 THE MIDDLE.

9 Q. YOU ROLLED THE WINDOWS DOWN, DIDN’T YOU?

10 A. YES.

11 Q. TURNED THE STEREO ON, DIDN’T YOU?

12 A. YES.

13 Q. TURNED THE MUSIC UP, DIDN’T YOU?

14 A. YES.

15 Q. KIND OF WERE DANCING AND ROCKING OUT IN THE CAR A

16 LITTLE BIT, WEREN’T YOU?

17 A. YES.

18 Q. AND THEN YOU WERE SMOKING THE MARIJUANA, RIGHT?

19 A. I DON’T KNOW IN WHICH — I DON’T KNOW IF IT

20 HAPPENED IN THAT, YOU KNOW —

21 Q. ORDER?

22 A. — ORDER BUT —

23 Q. IT ALL HAPPENED. YOU JUST DON’T SPECIFICALLY

24 RECALL AT THIS TIME IN WHAT SEQUENCE. HOW’S THAT?

25 A. RIGHT.

26 Q. ALL RIGHT.

27 WHILE YOU WERE SMOKING MARIJUANA, UP CAME RICH

28 BRADY AND KEITH STONE, THOUGH, ISN’T THAT TRUE?
3925
1 A. THEY WALKED OUT WITH US.

2 Q. WHO SUPPLIED THE MARIJUANA?

3 A. WE BROUGHT IT FROM OUR HOUSE. IT WAS THE ONE WE

4 HAD EARLIER.

5 Q. OKAY.

6 SO THEN RICH AND KEITH SHARED THAT WITH YOU AND THE

7 OTHER TWO WOMEN WERE SMOKING?

8 A. I DON’T — I DON’T BELIEVE THAT THEY SMOKED ANY.

9 Q. WELL, DIDN’T KEITH SAY SOMETHING TO YOU ABOUT

10 BARBARA?

11 A. KEITH LATER IN THE NIGHT MENTIONED TO ME THAT HE

12 WOULD LIKE TO GET TOGETHER WITH BARBARA.

13 Q. HE TOLD YOU HE WAS REALLY EXCITED, HE HAD TAKEN A

14 LITTLE PILL, DIDN’T HE?

15 A. HE DID. THAT WAS LATER IN THE NIGHT.

16 Q. AND THAT LITTLE PILL HAD A “V” ON IT, RIGHT?

17 A. THAT’S WHAT HE TOLD ME.

18 Q. HE SAID HE WAS REALLY —

19 MR. DUSEK: OBJECTION, HEARSAY.

20 THE COURT: APPEARS TO BE CALLING FOR HEARSAY, UNLESS

21 IT’S NOT FOR THE TRUTH.

22 MR. FELDMAN: IT’S FOR STATE OF MIND.

23 THE COURT: STATE OF MIND, I’LL ALLOW IT.

24 MR. FELDMAN: THANK YOU.

25 Q. HE INDICATED HE WAS REALLY HYPED UP AND EXCITED AND

26 HE WANTED TO BE WITH BARB, CORRECT?

27 A. YES.

28 Q. NOW WHEN HE TOLD YOU HE TOOK A PILL, YOU ASKED HIM
3926
1 WHAT KIND OF PILL HE TOOK, DIDN’T YOU?

2 A. NO. HE TOLD ME.

3 Q. HE TOLD YOU THAT —

4 MR. DUSEK: HEARSAY, YOUR HONOR.

5 MR. FELDMAN: I’LL JUST WITHDRAW THE QUESTION, YOUR

6 HONOR.

7 Q. WHAT WAS DENISE DOING, IF ANYTHING, WHILE — YOU

8 TOLD US ON DIRECT EXAMINATION, I THINK, THAT BARBARA AND KEITH

9 WERE KISSING.

10 DO YOU RECALL THAT?

11 A. WHERE ARE WE?

12 Q. BACK IN THE BAR — I’M SORRY, AT THE BAR IN THE

13 PARKING LOT IN YOUR VEHICLE SMOKING, KEITH AND RICHARD THERE,

14 THE MUSIC’S ON, THE WINDOWS ARE DOWN, HOW’S THAT?

15 A. OKAY.

16 Q. NOW, I FORGOT THE QUESTION. WERE KEITH AND BARBARA

17 KISSING?

18 A. I CAN’T REMEMBER.

19 Q. WELL, AT SOME POINT IN THAT — WE’LL CALL IT AN

20 INTERLUDE, WERE THEY KISSING?

21 A. I JUST CAN’T REMEMBER.

22 Q. DO YOU REMEMBER TELLING THE POLICE THAT THEY WERE

23 FRENCH KISSING IN A VERY INTENSE MANNER AT THAT POINT?

24 A. NO, I DON’T REMEMBER.

25 Q. AND BY YOUR ANSWER DO YOU MEAN TO SAY IT DIDN’T

26 HAPPEN OR YOU DON’T REMEMBER WHETHER OR NOT IT HAPPENED?

27 A. I DON’T REMEMBER WHETHER OR NOT IT HAPPENED.

28 Q. WHEN — AT SOME POINT KEITH TOLD YOU THAT HE WANTED
3927
1 TO GET TOGETHER WITH BARBARA; IS THAT RIGHT?

2 A. YES.

3 Q. AND IT WAS AT THAT POINT THAT YOU DECIDED THAT YOU

4 WOULD INVITE KEITH OVER TO SEE WHETHER OR NOT YOU COULD

5 FACILITATE THAT CONNECTION; ISN’T THAT CORRECT?

6 A. I TOLD HIM HE COULD COME OVER AND TALK WITH HER FOR

7 A MINUTE AT MY HOUSE BUT SHE HAD TO PICK UP HER CAR.

8 Q. IS IT TRUE YOU SAID FINE, SHE’S GOING TO MY HOUSE.

9 YOU CAN COME OVER FOR A FEW MINUTES. MAYBE THE TWO OF YOU CAN

10 HOOK UP?

11 A. YES.

12 Q. AND WHEN YOU USED THE TERM “HOOK UP” YOU MEAN

13 SEXUALLY HOOK UP, DON’T YOU?

14 A. I THOUGHT MAYBE HE COULD TALK WITH HER, MAYBE THEY,

15 YOU KNOW — WHATEVER THEY WANTED TO DO OUTSIDE OF MY HOME IS

16 FINE.

17 Q. BUT WHEN YOU USED THE TERM “HOOK UP,” YOU MEANT

18 SEXUALLY HOOK UP, ISN’T THAT RIGHT?

19 A. NO.

20 MR. DUSEK: ASKED AND ANSWERED.

21 THE COURT: SHE’S ANSWERED THE QUESTION.

22

23 BY MR. FELDMAN:

24 Q. SO ULTIMATELY DID YOU CALL YOUR HUSBAND TO ADVISE

25 HIM THAT YOU HAD INVITED THE TWO WOMEN AND THE TWO MEN HOME TO

26 THE HOUSE?

27 A. NO.

28 Q. DID YOU FIND IT UNUSUAL, AT LEAST WITH REGARD TO
3928
1 YOUR RELATIONSHIP WITH YOUR HUSBAND, THAT YOU WOULD DO THAT?

2 MR. DUSEK: OBJECTION, IRRELEVANT, 352.

3 THE COURT: SUSTAINED.

4 YOU NEED NOT ANSWER, MA’AM.

5

6 BY MR. FELDMAN:

7 Q. HOW MUCH TIME ELAPSED BETWEEN THE TIME YOU RECALL

8 KEITH BEING SOMEHOW WITH BARBARA AROUND THE CAR AND THE TIME YOU

9 LEFT THE BAR?

10 A. CAN YOU REPEAT THE QUESTION?

11 Q. HOW MUCH TIME — YOU TOLD US IT WAS SOMEWHERE

12 10:00-ISH, ABOUT 10 O’CLOCK WHEN YOU WENT TO YOUR CAR?

13 A. YES.

14 Q. I’LL DO IT A DIFFERENT —

15 ABOUT HOW LONG DID YOU SPEND IN YOUR CAR, IF YOU

16 CAN RECALL?

17 A. ABOUT 10 MINUTES.

18 Q. NOW, IT’S ABOUT 10:00, 10:15-ISH?

19 A. YEAH.

20 Q. ABOUT WHAT TIME DID YOU LEAVE THE BAR?

21 A. FINAL ALCOHOL CALL WAS ABOUT 1:50, AND WE LEFT A

22 FEW MINUTES AFTER THAT.

23 Q. OKAY. SO YOU STAYED AT THE BAR UNTIL LAST CALL?

24 A. YES.

25 Q. AND IS IT FAIR TO SAY THAT YOU AND YOUR FRIENDS

26 CONTINUED TO DRINK?

27 A. THERE WAS A POINT IN WHICH I DIDN’T DRINK ANY MORE

28 ALCOHOL.
3929
1 Q. DO YOU RECALL WHAT TIME THAT WAS?

2 A. NO, I DON’T.

3 Q. AGAIN, YOU WERE THE DESIGNATED DRIVER, THOUGH,

4 RIGHT?

5 A. YES.

6 Q. DO YOU RECALL DANCING WITH DAVID WESTERFIELD AT

7 ALL?

8 A. NO.

9 Q. BY THAT ANSWER DO YOU MEAN TO SAY IT DIDN’T HAPPEN

10 OR YOU DON’T REMEMBER WHETHER OR NOT IT HAPPENED?

11 A. DIDN’T HAPPEN.

12 Q. WHEN MR. WESTERFIELD BOUGHT YOU DRINKS AT THE BAR,

13 DID HE SAY ANYTHING TO YOU AS YOU GUYS CAME IN AND TOOK YOUR

14 SEATS AT THE BAR?

15 A. ARE WE ON THE FIRST?

16 Q. NO, MA’AM. — YES.

17 A. HE SAID “LADIES DON’T BUY THEIR OWN DRINKS” AND HE

18 ASKED IF HE COULD BUY US A DRINK.

19 Q. AND YOU LET HIM?

20 A. YES.

21 Q. YOU’RE JUST NOT SURE HOW MANY ROUNDS HE BOUGHT, IS

22 THAT RIGHT?

23 MR. DUSEK: OBJECTION, MISSTATES THE EVIDENCE.

24 THE COURT: IT’S BEEN ASKED AND ANSWERED REPEATEDLY.

25 NEXT QUESTION, PLEASE.

26

27 BY MR. FELDMAN:

28 Q. LATER IN THE EVENING YOU WERE PLAYING POOL, IS THAT
3930
1 RIGHT?

2 A. IT WAS THE EARLY PART OF THE EVENING.

3 Q. AT SOME POINT IN THE EVENING WHEN YOU WERE PLAYING

4 POOL, DENISE WAS HANDING YOU DRINKS, ISN’T THAT RIGHT?

5 A. SHE DID.

6 Q. DO YOU REMEMBER HOW MANY DRINKS SHE HANDED YOU?

7 A. TWO.

8 Q. ULTIMATELY THE DECISION WAS MADE TO LEAVE THE BAR,

9 IS THAT RIGHT?

10 A. YES.

11 Q. THIS IS ABOUT FIVE TO 2:00-ISH ABOUT, IS THAT A

12 FAIR STATEMENT?

13 A. YES.

14 Q. YOU TOLD MR. DUSEK YOU LEFT THE BAR, APPARENTLY

15 YOUR FRIEND BARBARA FORGOT HER CIGARETTES, YOU HAD TO GO BACK TO

16 THE BAR, IS THAT RIGHT?

17 A. YES.

18 Q. YOU PICKED UP HER CIGARETTES, DID YOU?

19 A. YES.

20 Q. AND THEN YOU DROVE HOME, IS THAT RIGHT?

21 A. YES.

22 Q. WHEN YOU GOT HOME WERE RICH AND KEITH ALREADY

23 THERE?

24 A. NO. NO.

25 Q. DID THEY ARRIVE A SHORT PERIOD OF TIME AFTER YOU

26 ENTERED YOUR HOUSE OR DID THEY ARRIVE BEFORE YOU ENTERED YOUR

27 HOUSE?

28 A. THEY WERE ONE CAR IN FRONT OF US.
3931
1 Q. WELL, IF THEY WERE IN FRONT OF YOU DID THEY PULL

2 INTO YOUR DRIVEWAY BEFORE YOU DID, MA’AM?

3 A. ACTUALLY, THEY PULLED — THEY PARKED IN FRONT OF

4 THE HOUSE ALONG THE CURB.

5 Q. SO YOU MIGHT HAVE BEEN BEHIND ‘EM BUT ULTIMATELY

6 YOU PULLED IN FRONT OF THEM BECAUSE YOU PULLED ONTO YOUR

7 DRIVEWAY, RIGHT?

8 A. YES.

9 Q. THEN THE THREE WOMEN GOT OUT OF THE CAR, RIGHT?

10 A. YES.

11 Q. AND YOU WENT TO THE FRONT DOOR?

12 A. YES.

13 Q. AND LET EVERYBODY IN, IS THAT RIGHT?

14 A. YES.

15 Q. THE HOUSE WAS DARK, WASN’T IT, BEFORE YOU LET

16 PEOPLE IN?

17 A. NO. THERE WAS — THE TV WAS ON UPSTAIRS.

18 Q. OKAY. THAT WAS THE LIGHT THAT WAS RADIATING FROM

19 THE MASTER BEDROOM, IS THAT RIGHT?

20 A. YES.

21 Q. FROM THE TELEVISION SET, IS THAT RIGHT?

22 A. YES.

23 Q. BUT OTHERWISE, THE LIGHTS HAD BEEN TURNED OFF,

24 ISN’T THAT TRUE?

25 A. YES.

26 Q. SO AGAIN, IT WAS DARK WHEN YOU CAME IN BUT FOR THE

27 LIGHT THAT WAS RADIATING FROM THE BEDROOM THAT WAS FROM

28 APPARENTLY FROM THE TV, IS THAT RIGHT?
3932
1 A. AND THE LIGHT ON THE MONITOR, THE ALARM, THAT WAS

2 IT.

3 Q. OKAY. NOW THE ALARM MONITOR, WHERE WAS THAT,

4 MA’AM?

5 A. IT’S IN THE ENTRYWAY. IF YOU TURN LEFT AS SOON AS

6 YOU ENTER THE FRONT DOOR, IT’S ON THE WALL GOING OUT TO THE

7 GARAGE.

8 Q. OKAY.

9 SO WHEN YOU ENTERED YOUR RESIDENCE, ONE OF THE

10 FIRST THINGS YOU NOTICED WAS THAT LIGHT, WAS THAT CORRECT?

11 A. YES.

12 Q. THAT WAS ABOUT 2 O’CLOCK, RIGHT?

13 A. YES.

14 Q. WHAT DID YOU DO?

15 A. I TOLD DENISE THAT I HAD EITHER A WINDOW OR A DOOR

16 OPEN AND I NEEDED TO FIND IT.

17 Q. WHERE WAS BARBARA WHEN YOU DID THAT?

18 A. SHE WAS IN —

19 Q. PARDON ME?

20 A. SHE WAS IN THE LIVING ROOM. SHE WAS JUST STANDING

21 IN THE ENTRYWAY AREA.

22 Q. OKAY.

23 SO BARBARA STAYED IN THE ENTRY WAY AREA, AND YOU

24 AND DENISE THEN WENT TO GO LOOK TO TRY AND FIND WHAT IT WAS THAT

25 WAS CAUSING THE LIGHT TO BLINK?

26 A. NO. ACTUALLY, I WENT UPSTAIRS TO TELL DAMON THAT

27 KEITH AND RICH HAD STOPPED BY AND ASKED HIM IF HE WANTED TO COME

28 DOWN.
3933
1 Q. SO YOU WENT UPSTAIRS ALONE. YOU DIDN’T HAVE

2 BARBARA WITH YOU?

3 A. NO, I DID NOT.

4 Q. AND THEN YOU CAME DOWNSTAIRS ALONE AND BARBARA

5 WASN’T UPSTAIRS, CORRECT?

6 A. CORRECT.

7 Q. BARBARA WAS DOWNSTAIRS WHEN YOU CAME DOWNSTAIRS?

8 A. YES.

9 Q. AND THEN THE THREE OF YOU LOOKED TO TURN OFF THE —

10 I GUESS THE BLINKING LIGHT THAT WAS BY THE FRONT DOOR, IS THAT

11 RIGHT?

12 A. DENISE AND I STARTED LOOKING FOR THE OPEN DOOR.

13 Q. AT SOME POINT DID SOMEBODY SUCCEED IN LOCATING AN

14 OPEN DOOR?

15 A. DENISE AND I DID.

16 Q. OKAY. WHERE WAS THAT, MA’AM?

17 A. IT WAS THE GARAGE DOOR LEADING TO THE SIDE YARD.

18 Q. IS THAT THE GARAGE DOOR WE WERE LOOKING AT EARLIER?

19 A. YES.

20 Q. DID YOU CLOSE IT OR DO YOU HAVE PERSONAL KNOWLEDGE

21 THAT DENISE CLOSED IT?

22 A. DENISE CLOSED IT.

23 Q. AFTER DENISE CLOSED IT WHERE WAS BARBARA?

24 A. BARBARA, DURING THAT FEW MINUTES THAT WE WERE

25 LOOKING FOR THE DOOR, I GUESS WALKED UPSTAIRS.

26 Q. DID YOU HAVE TO GIVE HER PERMISSION TO GO UPSTAIRS?

27 A. I DIDN’T.

28 Q. WITH REGARD TO YOUR RELATIONSHIP WITH BARBARA, IS
3934
1 IT THE CASE THAT YOU WEREN’T REAL CLOSE WITH HER?

2 MR. DUSEK: OBJECTION, VAGUE AS TO WHAT “REAL CLOSE”

3 MEANS.

4 THE COURT: ALL RIGHT. RESTATE.

5

6 BY MR. FELDMAN:

7 Q. WITH REGARD TO BARBARA, IS IT THE CASE THAT YOUR

8 RELATIONSHIP WITH HER WAS SUCH THAT YOU WERE UNCOMFORTABLE WHEN

9 SHE WAS TALKING WITH YOUR DAUGHTER, DANIELLE?

10 A. IT JUST STRUCK ME AS ODD BECAUSE SHE DIDN’T — SHE

11 WASN’T AROUND MY CHILDREN THAT MUCH.

12 Q. SO WHAT — I THINK WHAT YOU JUST TOLD ME WAS THERE

13 WAS A TIME WHEN BARBARA WAS TALKING TO DANIELLE AND WHATEVER —

14 THAT’S CORRECT, ISN’T IT?

15 A. THAT WAS BEFORE WE LEFT TO GO OUT.

16 Q. OKAY.

17 AND WHEN THAT WAS OCCURRING IT STRUCK YOU AS ODD?

18 A. YES.

19 Q. AFTER YOU CAME HOME, BARBARA THEN WENT UPSTAIRS

20 WITH YOUR PERMISSION OR WITHOUT YOUR PERMISSION, MA’AM?

21 A. SHE DIDN’T ASK ME TO GO. WITHOUT MY PERMISSION.

22 Q. AND WAS THERE A PERIOD OF TIME WHEN YOU WERE

23 DOWNSTAIRS AND BARBARA WAS UPSTAIRS?

24 A. THERE WERE A FEW MINUTES.

25 Q. YOU’RE USING “FEW.” AS BEST YOU CAN ESTIMATE IT,

26 HOW MUCH TIME?

27 A. MAYBE THREE MINUTES.

28 Q. IN THAT THREE MINUTE PERIOD OF TIME WHAT WERE YOU
3935
1 DOING, MA’AM?

2 A. LOOKING FOR THE DOOR THAT WAS OPEN.

3 Q. BUT THEN YOU TOLD US YOU FOUND THE DOOR?

4 A. YES.

5 Q. AND THEN YOU CLOSED THE DOOR, RIGHT?

6 A. YES.

7 Q. THEN WHAT DID YOU DO?

8 A. DENISE AND I WENT BACK INSIDE, AND KEITH AND RICH

9 ASKED WHAT BARBARA WAS DOING UPSTAIRS. I DIDN’T KNOW SHE HAD

10 GONE UPSTAIRS AND I SAID I DIDN’T KNOW.

11 Q. SO WHAT DID YOU DO?

12 A. I WENT UPSTAIRS.

13 Q. AND WHERE DID YOU GO?

14 A. TO MY BEDROOM.

15 Q. AND WHAT DID YOU SEE?

16 A. BARBARA WAS LAYING NEXT TO DAMON.

17 Q. AND WHAT WAS DAMON DOING?

18 A. THEY WERE TALKING.

19 Q. DID YOU JUST SAY BARBARA WAS LAYING NEXT TO DAMON,

20 IS THAT RIGHT?

21 A. YES.

22 Q. WAS DAMON UNDER THE COVERS?

23 A. YES.

24 MR. DUSEK: OBJECTION, ASKED AND ANSWERED.

25 THE COURT: OVERRULED. THE ANSWER WAS YES.

26

27 BY MR. FELDMAN:

28 Q. WAS BARBARA ABOVE THE COVERS?
3936
1 A. YES.

2 Q. DID YOU NOTICE WHETHER OR NOT THEY WERE EMBRACING?

3 A. NO.

4 Q. YOU DIDN’T NOTICE OR THEY WERE NOT?

5 A. I DIDN’T NOTICE.

6 Q. DID YOU LATER NOTICE THAT YOUR HUSBAND PUT HIS ARM

7 AROUND BARBARA?

8 A. NO.

9 Q. DID YOU LATER NOTICE THAT YOUR HUSBAND NOT ONLY PUT

10 HIS ARM AROUND BARBARA BUT THAT THEY WERE KISSING?

11 MR. DUSEK: OBJECTION, MISSTATES THE EVIDENCE, THE FORM

12 OF THE QUESTION.

13 THE COURT: OVERRULED.

14 YOU CAN ANSWER.

15 THE WITNESS: I CAN ANSWER?

16 THE COURT: YOU CAN ANSWER, MA’AM.

17 THE WITNESS: NO.

18

19 BY MR. FELDMAN:

20 Q. AT ANY POINT THAT NIGHT DID YOU SEE BARBARA IN BED

21 WITH YOUR HUSBAND?

22 A. YES.

23 Q. WHAT POINT?

24 A. I JUST TOLD YOU.

25 Q. DID YOU SAY ANYTHING TO YOUR HUSBAND ABOUT WHAT HAD

26 BEEN SAID TO YOU BY THE MEN DOWNSTAIRS?

27 A. NO. I TOLD THE BOTH OF THEM THAT THEY WERE BEING

28 RUDE AND THEY NEEDED TO COME DOWNSTAIRS.
3937
1 Q. DID YOU RAISE YOUR VOICE WHEN YOU SAID THAT?

2 A. NO.

3 Q. AFTER YOU TOLD THEM THEY WERE BEING RUDE AND THEY

4 SHOULD GO DOWNSTAIRS, DID YOU, IN FACT, GO DOWNSTAIRS?

5 A. WE ALL WENT DOWNSTAIRS.

6 Q. DID YOU ALL GO DOWNSTAIRS TOGETHER?

7 A. YES.

8 Q. WHEN YOU WENT DOWNSTAIRS TOGETHER, DID YOU FIRST

9 OBSERVE WHETHER OR NOT YOUR HUSBAND HAD TO GET DRESSED?

10 A. I DON’T REMEMBER SEEING HIM GET DRESSED BUT I GUESS

11 HE HAD TO.

12 Q. BECAUSE?

13 A. BECAUSE HE DOESN’T SLEEP WITH CLOTHES ON.

14 Q. WAS THERE A PERIOD OF TIME THAT ELAPSED BETWEEN THE

15 TIME THAT YOU EXITED THE BEDROOM AND BARBARA AND DAMON REMAINED

16 IN THE BEDROOM?

17 A. NO.

18 Q. I’M SORRY — YEAH?

19 A. NO.

20 Q. SO IT’S YOUR RECOLLECTION THAT THE THREE OF YOU

21 EXITED TOGETHER?

22 A. IT MAY HAVE TAKEN DAMON A MINUTE OR TWO MORE TO GET

23 DRESSED, BUT HE WENT DOWN — BARBARA AND I COULD HAVE BEEN AHEAD

24 OF DAMON.

25 Q. SO YOU DON’T REMEMBER WHETHER OR NOT DAMON PUT HIS

26 PANTS ON?

27 A. I JUST ANSWERED THAT. HE WOULD HAVE.

28 Q. BUT YOU DON’T HAVE A MEMORY OF IT?
3938
1 A. I DIDN’T WATCH HIM DO IT.

2 Q. DID YOU NOTICE WHETHER OR NOT BARBARA HAD TO PUT

3 ANY CLOTHES ON?

4 A. SHE WAS FULLY CLOTHED.

5 Q. DID YOU NOTICE WHETHER OR NOT BARBARA APPEARED TO

6 BE INTOXICATED THAT EVENING?

7 A. SHE WAS A LITTLE BIT.

8 Q. ISN’T IT TRUE YOU TOLD THE POLICE SHE WAS TOASTED?

9 A. YES.

10 Q. WHEN YOU USE THE WORD “TOASTED,” WHAT DO YOU MEAN

11 TO COMMUNICATE THEN?

12 A. THAT SHE HAD A LITTLE BIT TOO MUCH TO DRINK.

13 Q. AND YOU ALSO DESCRIBED DENISE AS BEING TOASTED;

14 ISN’T THAT CORRECT?

15 MR. DUSEK: OBJECTION, VAGUE AS TO WHEN.

16 THE COURT: LET’S PUT IT IN TIME PERSPECTIVE, COUNSEL.

17 SUSTAINED.

18 MR. FELDMAN: YES, YOUR HONOR.

19 Q. SPECIFICALLY DIRECTING YOUR ATTENTION TO THE

20 EVENING OF THE 1ST OF FEBRUARY — 1ST OF FEBRUARY, AFTER YOU GOT

21 HOME, WAS DENISE TOASTED ALSO?

22 A. I DON’T KNOW IF SHE WAS THAT EVENING. I KNOW THE

23 FRIDAY BEFORE SHE WAS.

24 Q. HAD YOU TALKED TO HER ABOUT THE FACT THAT SHE

25 APPEARED IN YOUR VIEW TO HAVE HAD TOO MUCH TO DRINK THE PREVIOUS

26 WEEK?

27 A. DID I TALK TO HER WHEN?

28 Q. THE 1ST. ON THE 1ST ABOUT HOW SHE WAS ON THE 25TH?
3939
1 A. I DON’T REMEMBER.

2 Q. WAS SHE SO TOASTED THAT YOU WERE EMBARRASSED BY HER

3 ON THE 1ST?

4 MR. DUSEK: OBJECTION, VAGUE AS TO WHEN.

5 BY MR. FELDMAN:

6 Q. ON THE 1ST?

7 THE COURT: ARE WE TALKING AT THE HOUSE, AT THE BAR,

8 WHERE?

9 SUSTAINED.

10 MR. FELDMAN: I SEE.

11 Q. WAS DENISE SO TOASTED ON THE 25TH THAT AT THE BAR

12 YOU WERE EMBARRASSED BY HER BEHAVIOR?

13 A. YES.

14 Q. WAS BARBARA SO TOASTED ON THE 1ST THAT YOU WERE

15 EMBARRASSED BY HER BEHAVIOR?

16 A. NO.

17 Q. ULTIMATELY THE WOMEN LEFT YOUR HOUSE, IS THAT

18 RIGHT?

19 A. YES.

20 Q. 2:30, 3 O’CLOCK, SOMEWHERE IN THERE?

21 A. PROBABLY ABOUT 2:20.

22 Q. ARE YOU GUESSING?

23 A. I’M APPROXIMATE BETWEEN 2:20, 2:30.

24 Q. ULTIMATELY THEN AFTER THEY LEFT THE HOUSE DID YOU

25 AND DAMON GO TO BED?

26 A. AFTER THE GIRLS LEFT THE HOUSE?

27 Q. AFTER THE GUESTS, WHATEVER, THE COMPANY, THE WOMEN,

28 THE MEN, DID YOU GO BACK UPSTAIRS WITH YOUR HUSBAND?
3940
1 A. YES.

2 Q. DID YOU PREPARE TO GO TO SLEEP?

3 A. YES.

4 Q. I THINK AT SOME POINT — DIDN’T YOU AT SOME POINT,

5 THOUGH, GO UPSTAIRS AND CLOSE YOUR CHILDREN’S DOORS?

6 A. WHEN I WENT UP THE FIRST TIME.

7 Q. CAN YOU PLEASE TELL ME WHEN IN RELATION TO THE

8 SEQUENCE — WHEN WAS THE FIRST TIME?

9 A. WHEN WE FIRST ENTERED THE HOME, AND I TOLD DENISE

10 THAT I HAD A DOOR OPEN I NEEDED TO FIND, I WENT UPSTAIRS TO TELL

11 DAMON THAT KEITH AND RICH WERE THERE.

12 I ASKED HIM HOW BEDTIME WENT. HE TOLD ME

13 EVERYTHING WAS FINE. HE TOLD ME THAT NOBODY ASKED FOR ME. AND

14 AT THAT TIME KEITH AND RICH WERE COMING INTO THE HOUSE. THEIR

15 VOICES WERE TRAVELING UPSTAIRS AND I WENT TO THE CHILDREN’S

16 DOORS AND CLOSED THEM.

17 Q. OKAY. CLOSED THEM TIGHT OR CLOSED THEM —

18 A. SHUT THEM.

19 Q. I’M SORRY. JUST SO THAT THEY — YOU KNOW, WHEN YOU

20 CLOSE A DOOR, SOMETIMES IT MAKES A SOUND THAT YOU KNOW IT’S

21 CLOSED TIGHT?

22 A. YES.

23 Q. SO YOU INTENDED TO CLOSE THE DOORS TIGHTLY, IS THAT

24 RIGHT?

25 A. YES.

26 Q. OKAY.

27 DO YOU CONSIDER YOURSELF TO BE KIND OF A TOUCHY

28 SORT OF A PERSON? I DON’T MEAN EMOTIONALLY TOUCHY, I MEAN
3941
1 PHYSICALLY TOUCHY?

2 A. YES.

3 Q. AND SO WHEN YOU COMMUNICATE WITH PEOPLE YOU USE

4 YOUR HANDS IN GESTURES, IS THAT RIGHT?

5 A. YES.

6 Q. AND YOU MAY TOUCH THEM FROM TIME TO TIME, IS THAT

7 RIGHT?

8 A. YES.

9 Q. WITH REGARD TO YOUR COMMUNICATIONS WITH MR.

10 WESTERFIELD IN THE BAR ON THE 1ST, DO YOU RECALL ANY OF THOSE

11 COMMUNICATIONS TOUCHING HIM?

12 A. NO.

13 Q. WITH REGARD TO YOUR COMMUNICATION WITH DETECTIVE

14 LABORE, DO YOU RECALL TOUCHING HIM DURING YOUR COMMUNICATION

15 WITH HIM?

16 MR. DUSEK: OBJECTION, IRRELEVANT.

17 THE COURT: OVERRULED.

18 YOU MAY ANSWER THAT.

19 THE WITNESS: I DON’T RECALL.

20

21 BY MR. FELDMAN:

22 Q. DO YOU RECALL IN YOUR INTERVIEW WITH DETECTIVE

23 LABORE, DETECTIVE LABORE ASKING YOU WHETHER OR NOT YOU TOUCHED

24 DAVID DURING YOUR COMMUNICATIONS, INNOCENT TOUCHING, INNOCENT

25 TOUCHING, DO YOU RECALL THAT QUESTION?

26 A. NO, I DON’T.

27 Q. DO YOU RECALL ANSWERING YOU COULD HAVE?

28 MR. DUSEK: OBJECTION, IMPROPER IMPEACHMENT, YOUR HONOR.
3942
1 THE COURT: SUSTAINED.

2 YOU NEED NOT ANSWER, MA’AM.

3

4 BY MR. FELDMAN:

5 Q. DO YOU STILL HAVE THE TRANSCRIPT UP THERE? I SEE.

6 COUNSEL, 255, PAGE 55, DISCOVERY 255.

7 MA’AM, I’M SHOWING YOU JUST — I’M SORRY. FOR THE

8 RECORD —

9 MR. DUSEK: IMPROPER FOUNDATION, YOUR HONOR, BECAUSE SHE

10 DOESN’T REMEMBER.

11 MR. FELDMAN: THAT’S RIGHT. I’M TRYING TO REFRESH HER

12 RECOLLECTION.

13 Q. EXHIBIT 36, MA’AM, WE HAVE A BATE STAMP THAT’S

14 CALLED 255, B-A-T-E. IT’S PAGE 55. I’D JUST LIKE YOU TO READ

15 AROUND WHEREVER YOU’RE COMFORTABLE SO THAT YOU GET THE CONTEXT

16 OF THE COMMUNICATION.

17 (PAUSE)

18 Q. HAVE YOU HAD AN OPPORTUNITY TO REVIEW THAT?

19 A. YES.

20 Q. DOES REVIEWING THAT DOCUMENT REFRESH YOUR

21 RECOLLECTION; FIRST, AS TO WHETHER OR NOT YOU TOUCHED —

22 DETECTIVE LABORE — DURING THE COMMUNICATION YOU HAD WITH HIM?

23 A. IT DOESN’T.

24 Q. ARE YOU DOING YOUR BEST TO BE TRUTHFUL WITH

25 DETECTIVE LABORE WHEN YOU WERE SPEAKING TO HIM?

26 A. YES.

27 Q. AND DOES READING THE TRANSCRIPT REFRESH YOUR

28 RECOLLECTION AS TO WHETHER OR NOT YOU TOUCHED MR. WESTERFIELD,
3943
1 ALTHOUGH INNOCENTLY OR NOT, AS YOU WERE SPEAKING TO HIM?

2 A. IT SAYS RIGHT IN HERE I DON’T KNOW IF I TOUCHED

3 HIM. I DON’T KNOW.

4 Q. IT SAYS “I COULD HAVE”?

5 A. I COULD HAVE, I DON’T KNOW.

6 Q. OKAY. SO ARE YOU TELLING THE JURY TODAY THAT, IN

7 FACT, YOU COULD HAVE TOUCHED MR. WESTERFIELD, YOU’RE JUST NOT

8 SURE?

9 A. YES.

10 MR. DUSEK: OBJECTION, ASKED AND ANSWERED.

11 THE COURT: OVERRULED. THE ANSWER IS YES. SUSTAINED.

12

13 BY MR. FELDMAN:

14 Q. BACK AT THE BAR, OKAY — I’M SWITCHING SUBJECTS ON

15 YOU.

16 BACK AT THE BAR DID — WHEN YOU WERE PLAYING POOL,

17 DID YOU PLAY POOL WITH MR. WESTERFIELD’S FRIENDS, DO YOU RECALL?

18 A. YES.

19 Q. CAN YOU EXPLAIN HOW THAT WENT, PLEASE?

20 A. DENISE AND I WERE GONNA PLAY ONE TABLE TOGETHER AND

21 THEY CAME OVER AND ASKED DENISE IF THEY COULD JOIN US.

22 Q. “THEY” MEANING THE TWO MEN THAT YOU HAD EARLIER

23 SEEN WITH MR. WESTERFIELD OR MR. WESTERFIELD AND THE TWO MEN?

24 A. JUST THE TWO MEN.

25 Q. HAD YOU SEEN MR. WESTERFIELD WITH THOSE TWO MEN

26 EARLIER THAT EVENING?

27 A. YES.

28 Q. WAS THAT BEFORE OR AFTER YOU WENT OUT INTO THE
3944
1 PARKING LOT?

2 A. THAT WAS BEFORE.

3 Q. DO YOU RECALL WHAT TIME MR. WESTERFIELD MAY HAVE

4 LEFT THE BAR THAT EVENING?

5 A. NO.

6 Q. YOU WEREN’T PAYING ATTENTION, WERE YOU?

7 A. NO.

8 Q. AND IT WAS AT — WAS IT AT THE BAR OR AT THE POOL

9 TABLE THAT YOU TALKED ABOUT GOING TO ITALY FOR THE

10 FATHER/DAUGHTER DANCE?

11 A. IT WAS AT THE BAR.

12 Q. AND THAT WAS RIGHT ABOUT THE TIME MR. WESTERFIELD

13 HAD PURCHASED THE DRINKS?

14 A. YES.

15 Q. WHEN YOU HAD PULLED THE CHAIRS UP AND HE WAS RIGHT

16 THERE?

17 A. HE WAS BEHIND ME.

18 Q. ULTIMATELY, WHEN YOU DECIDE — I’M CHANGING AGAIN,

19 SORRY.

20 NOW IT’S 2:30, 3 O’CLOCK, WHATEVER. YOU DECIDE TO

21 GO TO SLEEP WITH THE FAMILY.

22 DO YOU RECALL WHETHER OR NOT THE LIGHTS UPSTAIRS

23 WERE TURNED OFF?

24 A. THEY WERE OFF.

25 Q. AND DO YOU RECALL WHERE WAS THE DOG?

26 A. AT THAT TIME SHE WAS IN OUR ROOM.

27 Q. ARE YOU GUESSING? YOU’RE NOT SURE?

28 A. NO. SHE WAS IN OUR ROOM.
3945
1 Q. TO KEEP THE DOG IN WOULD YOU CLOSE YOUR DOOR OR

2 LEAVE IT CRACKED OPEN SO THAT YOU WOULD HEAR? HOW WAS THAT?

3 A. WE CLOSED THE DOOR SO THE DOG WOULD STAY IN OUR

4 ROOM.

5 Q. SO YOUR DOOR WAS CLOSED TIGHT?

6 A. YES.

7 Q. I’M SORRY, I’M SWITCHING AGAIN. BUT YOU’LL BE

8 HAPPY TO KNOW I’M WINDING DOWN.

9 ON THE ISSUE OF YOUR STATEMENT, IN TERMS OF WHEN

10 THE DOG BIT DANIELLE OR — I’M SORRY, SCRATCHED DANIELLE — I’M

11 TRYING TO FOCUS YOU ON WHICH DAY IT WAS.

12 DO YOU RECALL TELLING A POLICE OFFICER THAT IT WAS

13 ON THE PREVIOUS TUESDAY THAT DANIELLE HAD BEEN SCRATCHED BY THE

14 DOG AND THAT YOU HAD CHASTISED HER FOR COMPLAINING TOO MUCH

15 ABOUT IT?

16 MR. DUSEK: OBJECTION, ASKED AND ANSWERED.

17 THE COURT: IT’S BEEN COVERED, COUNSEL. SUSTAINED.

18 MR. FELDMAN: CAN I SIDEBAR?

19 THE COURT: IT’S BEEN COVERED.

20 MR. FELDMAN: BUT —

21 THE COURT: MOVE ON TO ANOTHER AREA.

22 MR. FELDMAN: VERY WELL.

23 Q. THE NEXT MORNING YOU REALIZED THAT THERE WAS A

24 PROBLEM.

25 I WANT TO MOVE YOU THROUGH THE EMOTION. I DON’T

26 WANT YOU TO GO TO THE EMOTION IF I CAN KEEP YOU OUT OF THE

27 EMOTION, SORRY.

28 I KNOW YOU HAD TO TALK TO THE POLICE. WITH REGARD
3946
1 TO THE FIRST POLICE OFFICER, MA’AM, DO YOU RECALL A UNIFORMED

2 OFFICER SHOWING UP?

3 A. YES.

4 Q. THERE WAS A 911 CALL THAT WAS PLACED. DO YOU

5 RECALL THAT?

6 A. YES.

7 Q. YOU MADE THE 911 CALL, IS THAT RIGHT?

8 A. YES.

9 Q. BETWEEN THE TIME OF THE 911 CALL AND THE TIME THE

10 POLICE SHOWED UP, DO YOU KNOW ABOUT HOW MUCH TIME ELAPSED? DID

11 IT SEEM QUICK? DID IT SEEM LIKE IT WAS TAKING TOO LONG?

12 A. IT SEEMED LIKE IT WAS TAKING TOO LONG.

13 Q. ALL RIGHT.

14 IN THAT WINDOW — IN THAT PERIOD OF TIME BETWEEN

15 THE 911 CALL AND THE TIME THE POLICE ARRIVED DID YOU HAVE

16 CONVERSATIONS WITH YOUR HUSBAND, DAMON?

17 A. WE WERE SEARCHING FOR DANIELLE.

18 Q. DID YOU SPECIFICALLY DISCUSS WITH DAMON THAT IT

19 WOULD NOT BE A GOOD IDEA FOR YOU TO DISCUSS YOUR SEXUAL PRIVATE

20 LIFE?

21 A. NO.

22 Q. SO YOU AND DAMON NEVER DISCUSSED WITHHOLDING FROM

23 THE POLICE THE FACT THAT YOU MAY HAVE HAD A SEXUAL RELATIONSHIP

24 WITH BARBARA AND DENISE, WHO HAD BEEN IN YOUR HOME THAT EVENING,

25 CORRECT?

26 A. REPEAT IT, PLEASE?

27 Q. YOU DID NOT DISCUSS WITH DAMON WITHHOLDING FROM THE

28 POLICE —
3947
1 A. TO WITHHOLD?

2 Q. YES.

3 A. OKAY.

4 Q. — TO WITHHOLD FROM THE POLICE THE FACT OF YOUR

5 SEXUAL BEHAVIORS WITH BARBARA AND DENISE?

6 A. NO.

7 Q. NOR DID YOU HAVE A CONVERSATION WITH DAMON TO

8 WITHHOLD FROM THE POLICE THE FACT THAT YOU HAD USED MARIJUANA ON

9 THE EVENING OF FEBRUARY 1ST?

10 A. NO.

11 Q. WHEN YOU SAY NO, DO YOU MEAN TO SAY THE

12 CONVERSATION DID NOT OCCUR?

13 A. NO, IT DID NOT OCCUR.

14 Q. WHEN THE POLICE FIRST TALKED TO YOU IT WAS A

15 UNIFORMED OFFICER, WAS IT NOT?

16 A. YES, IT WAS.

17 Q. YOU DIDN’T TELL THE UNIFORMED OFFICER, DID YOU?

18 A. TELL HIM WHAT?

19 Q. PARDON ME?

20 A. TELL HIM WHAT?

21 Q. THAT YOU HAD SMOKED MARIJUANA THE EVENING BEFORE?

22 A. THE FIRST INITIAL OFFICER? NO.

23 Q. NOR — SOME PERIOD OF TIME LATER YOU WERE

24 INTERVIEWED — ACTUALLY, YOU AND DAMON BOTH WERE TAKEN TO THE

25 POLICE DEPARTMENT TO BE INTERVIEWED; ISN’T THAT CORRECT?

26 A. YES.

27 Q. AND YOU WERE INTERVIEWED BY A POLICE OFFICER, IS

28 THAT RIGHT?
3948
1 A. YES.

2 Q. DO YOU RECALL THE NAME OF THE POLICE OFFICER?

3 A. I THINK IT MAY HAVE BEEN RAMIREZ.

4 Q. ALL RIGHT.

5 DO YOU RECALL OFFICER RAMIREZ TELLING YOU THAT IT

6 WAS ABSOLUTELY ESSENTIAL THAT YOU TELL EVERYTHING THAT YOU HAD

7 DONE ON THE EVENING OF THE 1ST?

8 A. I ANSWERED EVERY QUESTION SHE ASKED ME. I DON’T

9 RECALL HER ASKING ME THAT.

10 Q. YOU DON’T RECALL —

11 A. GO AHEAD.

12 Q. I DIDN’T WANT TO INTERRUPT YOU.

13 A. NO. I ANSWERED ALL THE QUESTIONS SHE ASKED ME.

14 TOLD HER WHAT I COULD TELL HER.

15 Q. DID YOU TELL HER THAT YOU HAD HAD INTIMATE

16 RELATIONS WITH THE TWO WOMEN THAT HAD BEEN IN YOUR HOUSE, MA’AM?

17 A. DURING THE —

18 Q. EVER?

19 A. CAN YOU REPEAT IT?

20 Q. SURE.

21 WHEN YOU TALKED WITH OFFICER RAMIREZ, DID YOU

22 DISCLOSE TO OFFICER RAMIREZ FIRST THAT YOU HAD SMOKED MARIJUANA

23 THE NIGHT BEFORE?

24 A. I DON’T RECALL IF I TOLD HER.

25 Q. DID YOU DISCLOSE TO OFFICER RAMIREZ THAT THE WOMEN

26 THAT HAD BEEN IN YOUR HOUSE HAD BEEN INTIMATE WITH YOU IN THE

27 PAST?

28 A. NO.
3949
1 Q. EVEN THOUGH THE OFFICER TOLD YOU — EVEN THOUGH THE

2 OFFICER TOLD YOU IT WAS VERY IMPORTANT FOR YOU TO COMMUNICATE

3 THE NAMES OF EVERYONE THAT HAD BEEN IN YOUR HOUSE?

4 A. I TOLD HIM EVERYONE THAT HAD BEEN IN MY HOUSE.

5 Q. DO YOU RECALL SOMEWHERE AROUND 5:30 OR 6:00 P.M. A

6 COMMUNICATION FROM AN OFFICER TO YOU TELLING YOU THAT DAMON SAID

7 HE HAD DISCLOSED THE SEX, IT WAS OKAY FOR YOU TO TALK ABOUT IT?

8 DO YOU RECALL THAT COMMUNICATION?

9 A. ARE YOU TALKING ABOUT ON SATURDAY EVENING?

10 Q. I’M TALKING ABOUT WHENEVER IT HAPPENED, MA’AM.

11 A. NO. IT NEVER CAME OUT THAT DAMON —

12 Q. I’M SORRY. ARE YOU TELLING US THAT IT NEVER CAME

13 OUT THAT NO POLICE OFFICER TOLD YOU THAT DAMON HAD SAID IT’S

14 OKAY FOR YOU, MA’AM, TO —

15 A. NO, I DID NOT.

16 Q. DID THE POLICE TELL YOU THEY HAD TALKED WITH

17 BARBARA EASTON BETWEEN THE TIME YOU AND DAMON HAD TALKED WITH

18 THEM AND THAT BARBARA EASTON HAD PROVIDED INFORMATION THAT

19 NEITHER YOU NOR DAMON HAD PROVIDED?

20 A. NO. THEY DIDN’T TELL ME THAT EITHER.

21 Q. YOU’RE SURE ABOUT THAT?

22 A. THEY NEVER TOLD ME ANY OF THAT.

23 Q. SO IT’S YOUR TESTIMONY THAT LAW ENFORCEMENT NEVER

24 INDICATED TO YOU THAT THEY HEARD SOME THINGS ABOUT YOUR

25 RELATIONSHIP WITH YOUR HUSBAND, IN THOSE WORDS, MA’AM?

26 A. THEY CAME TO ME AND THEY ASKED ME IF THERE WAS

27 ANYTHING THAT WE DIDN’T TELL THEM, AND THEY ASKED ME IF I HAD AN

28 OPEN MARRIAGE, AND THEY NEVER TOLD ME ANY OF THAT OTHER STUFF.
3950
1 Q. DIDN’T THEY SAY TO BE HONEST, WE HEARD SOME THINGS

2 ABOUT YOUR RELATIONSHIP WITH YOUR HUSBAND, IT DIDN’T COME UP

3 BEFORE BUT WE NEED TO TALK ABOUT IT?

4 A. YES.

5 Q. IT WAS WHEN THAT STATEMENT MADE THAT YOU THEN

6 DISCLOSED YOUR RELATIONSHIP AS IT REALLY WAS WITH BARBARA AND

7 DENISE AND DAMON, ET CETERA?

8 A. YES.

9 Q. AND THAT WAS ON FEBRUARY THE 3RD AT 2:13 IN THE

10 MORNING, WASN’T IT?

11 A. YES.

12 MR. FELDMAN: YOUR HONOR, I’D LIKE A MOMENT.

13 THE COURT: SURE.

14 (PAUSE)

15

16 BY MR. FELDMAN:

17 Q. IN YOUR HOUSE DID YOU HAVE A COMPUTER, MA’AM?

18 A. YES.

19 Q. WAS THAT A COMPUTER THAT WAS USED BY YOUR HUSBAND?

20 A. YES.

21 MR. DUSEK: OBJECTION, RELEVANCY.

22 THE COURT: AT THIS POINT I’M NOT SURE, BUT THE ANSWER

23 WAS YES. IT WILL STAND.

24

25 BY MR. FELDMAN:

26 Q. AND IS IT CORRECT THAT — IS IT CORRECT THAT YOU

27 WOULD OBSERVE YOUR HUSBAND VIEWING NAKED 20-YEAR-OLDS —

28 MR. DUSEK: OBJECTION, YOUR HONOR.
3951
1 THE COURT: SUSTAINED.

2 MR. DUSEK: ASK THE JURY BE ADMONISHED, AND COUNSEL.

3 THE COURT: YES. LET’S APPROACH SIDEBAR, MR. FELDMAN.

4

5

6(PROCEEDINGS NOT PART OF THE PUBLIC RECORD.)

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
3952
1

2

3 (THE FOLLOWING PROCEEDINGS WERE HELD IN
OPEN COURT IN THE PRESENCE OF THE JURY:)
4

5 THE COURT: OKAY, LADIES AND GENTLEMEN. JUST BEFORE WE

6 WENT TO SIDEBAR YOU HAD HEARD A QUESTION WITHOUT AN ANSWER.

7 I JUST WANT THE REMIND YOU THAT QUESTIONS ARE NOT

8 EVIDENCE. YOU’RE NOT TO INFER OR PUT ANYTHING INTO A QUESTION

9 THAT IS NEVER ANSWERED. SO DISREGARD THAT QUESTION.

10 MR. FELDMAN: THANK YOU, YOUR HONOR.

11 NO FURTHER QUESTIONS.

12 THE COURT: ANYTHING FURTHER, MR. DUSEK?

13

14 REDIRECT EXAMINATION +

15 BY MR. DUSEK:

16 Q. MA’AM, WHEN YOU FIRST SPOKE WITH THE FIRST POLICE

17 OFFICER, WAS IT A UNIFORM OFFICER?

18 A. YES.

19 Q. HOW LONG DID YOU SPEAK WITH THAT OFFICER, WOULD YOU

20 THINK?

21 A. APPROXIMATELY 10 MINUTES, 15 MINUTES.

22 Q. WHAT WERE YOU TRYING TO CONVEY TO THAT OFFICER?

23 A. THAT DANIELLE WAS GONE.

24 Q. WERE YOU TRYING TO CONVEY TO THAT OFFICER WHAT YOU

25 HAD DONE ON ANY OTHER OCCASIONS, MONTHS OR YEARS BEFORE?

26 A. NO.

27 Q. WHEN YOU WERE ASKED REGARDING YOUR ACTIVITIES WITH

28 ANY OF THESE PEOPLE, DID YOU PROVIDE THE ANSWERS?
3953
1 A. YES.

2 Q. AND YOU TOLD THEM EVERYTHING YOU COULD THINK OF,

3 DIDN’T YOU?

4 A. I WOULD TELL THEM ANYTHING —

5 MR. FELDMAN: OBJECTION, ARGUMENTATIVE.

6 THE COURT: OVERRULED.

7 YOU MAY ANSWER, MA’AM.

8 THE WITNESS: I WOULD HAVE TOLD THEM ANYTHING THEY NEEDED

9 TO GET DANIELLE BACK.

10

11 BY MR. DUSEK:

12 Q. AND YOU DID IT ON TAPE FOR US ALL TO LISTEN TO,

13 DIDN’T YOU?

14 A. NONE OF THAT MATTERS. ALL THAT MATTERS WAS GETTING

15 HER BACK.

16 MR. FELDMAN: OBJECTION, NONRESPONSIVE, YOUR HONOR.

17 THE COURT: OVERRULED. THE ANSWER WILL STAND.

18

19 BY MR. DUSEK:

20 Q. YOU WERE ASKED QUESTIONS REGARDING WALKING AROUND

21 THE NEIGHBORHOOD WITH YOUR DOG, LAYLA?

22 A. YES.

23 Q. HOW OFTEN WOULD YOU GO OUT WITH LAYLA — OR WOULD

24 LAYLA BE ABLE TO GET OUTSIDE THE HOUSE?

25 A. OUR POOR DOG’S NEGLECTED. SHE NEVER GETS WALKED.

26 MAYBE ONCE EVERY THREE WEEKS OR ONCE A MONTH.

27 Q. DOES SHE WALK WITH A LEASH OR WITHOUT?

28 A. WITH A LEASH.
3954
1 Q. HAVE YOU EVER SEEN THAT DOG GO INTO MR.

2 WESTERFIELD’S RESIDENCE?

3 A. NEVER.

4 Q. HAVE YOU EVER SEEN THAT DOG GO INTO MR.

5 WESTERFIELD’S MOTOR HOME?

6 A. NEVER.

7 Q. YOU WERE ASKED ABOUT YOUR CHILDREN GOING TO VISIT

8 FRIENDS IN THE NEIGHBORHOOD, ONE OF THEM BEING TAYLOR?

9 A. YES.

10 Q. WHERE DOES TAYLOR LIVE IN RELATION TO YOUR HOUSE?

11 A. SHE LIVES AROUND THE CORNER ON BRIAR LEAF.

12 Q. WHEN YOU GO AROUND THE CORNER ON BRIAR LEAF YOU

13 HAVE TO STAY ON THE SAME SIDE OF THE STREET AS YOUR HOUSE IS?

14 A. YES.

15 Q. AND DO YOU FOLLOW — DO YOU HAVE ANY RESPONSIBILITY

16 FOR HER WHEN SHE GOES TO VISIT?

17 A. I WATCH HER WALK UP THE STREET.

18 Q. WHY?

19 A. BECAUSE I WANT TO MAKE SURE SHE GETS THERE.

20 Q. DO YOU GO WITH HER ALL THE WAY TO TAYLOR’S HOUSE?

21 A. I STAND AT THE CORNER AND WATCH HER GO UP, AND THEN

22 I CALL TO MAKE SURE EVERYTHING’S OKAY.

23 Q. DO YOU KNOW IF SHE’S BEING RECEIVED BY SOMEBODY AS

24 THEY ARE GOING UP THERE?

25 A. TAYLOR’S MOM.

26 Q. HOW DO YOU KNOW?

27 A. I’D CALL HER.

28 Q. WOULD YOU SEE HER WAITING TO SEE YOUR CHILD?
3955
1 A. I COULD SEE THEM.

2 Q. WHY WOULD YOU GO — WHY WOULD YOU NOT LET HER GO BY

3 HERSELF?

4 A. BECAUSE I DON’T — DIDN’T WANT ANYTHING TO HAPPEN

5 TO HER.

6 Q. THERE WAS ANOTHER CHILD THAT YOU MENTIONED, SARAH,

7 IS THAT IT?

8 A. YES.

9 Q. WHERE DOES SARAH LIVE IN RELATION TO YOUR HOUSE?

10 A. SHE LIVES THE OTHER WAY ON BRIAR LEAF.

11 Q. SO AS YOU GO FROM YOUR HOUSE TO BRIAR LEAF YOU TURN

12 RIGHT?

13 A. YES.

14 Q. AND IS THAT — DID SHE EVER GO DOWN THERE BY

15 HERSELF TO VISIT?

16 A. NO.

17 Q. DOES SHE EVER GO THERE TO VISIT?

18 A. YES.

19 Q. HOW DOES SHE GET THERE?

20 A. I DRIVE HER.

21 Q. WHY?

22 A. SO I KNOW WHERE SHE IS.

23 Q. HOW DO THE KIDS WALK TO SCHOOL? WHAT PATH DO THEY

24 TAKE?

25 A. THEY WOULD TURN RIGHT ONTO BRIAR LEAF, AND GO DOWN

26 THE SIDE STREET. AND I COULD WATCH ‘EM FROM OUR DOOR CROSS THE

27 STREET AND GO DOWN THE SIDE STREET AND THEY WOULD GO DOWN THAT

28 WAY.
3956
1 Q. WHEN THEY WOULD WALK TO SCHOOL WOULD THEY HAVE TO

2 WALK IN FRONT OF THE DEFENDANT’S HOUSE?

3 A. NO.

4 Q. THE MOTOR HOME THAT YOU MENTIONED ON

5 CROSS-EXAMINATION HERE REGARDING MR. WESTERFIELD, DO YOU RECALL

6 ABOUT WHEN IT WAS WHEN THE NEIGHBORS AND YOU WERE DISCUSSING THE

7 MOTOR HOME BEING PARKED AROUND HIS HOUSE?

8 A. IT WAS SOMETIME LAST YEAR.

9 Q. FROM THE TIME THAT DANIELLE WAS TAKEN FROM YOUR

10 HOUSE, ARE YOU ABLE TO ESTIMATE WHEN WAS THE LAST TIME YOU HAD

11 SEEN THE MOTOR HOME IN THE NEIGHBORHOOD?

12 MR. FELDMAN: OBJECTION, QUESTION ASSUMES FACTS NOT IN

13 EVIDENCE.

14 THE COURT: OVERRULED. YOU MAY ANSWER.

15 THE WITNESS: IT HAD BEEN OVER TWO MONTHS AT LEAST.

16

17 BY MR. DUSEK:

18 Q. THERE WAS A MENTION ABOUT A CERAMIC CAFE ON ONE OF

19 YOUR OUTINGS WITH YOUR GIRLFRIENDS. WHAT’S THE CERAMIC CAFE?

20 A. YOU PAINT POTTERY, CERAMICS.

21 Q. ON THE 25TH OF JANUARY, YOUR FIRST TIME TO DAD’S

22 WITH THE TWO GIRLFRIENDS AND MR. WESTERFIELD WAS THERE —

23 A. YES.

24 Q. — THERE WAS DISCUSSIONS ABOUT THE LINE DANCING AND

25 GRABBING THE PERSON IN FRONT OF YOU.

26 DO YOU KNOW WHETHER OR NOT MR. WESTERFIELD WAS

27 PRESENT WHEN THAT WAS GOING ON?

28 A. I DON’T.
3957
1 Q. DO YOU KNOW IF HE EVEN SAW WHAT WAS GOING ON?

2 A. I DON’T.

3 Q. DO YOU KNOW WHETHER — DO YOU KNOW WHAT TIME HE

4 LEFT THAT EVENING?

5 A. NO.

6 Q. DO YOU KNOW IF HE LEFT BEFORE OR AFTER YOU, CAN YOU

7 REMEMBER?

8 A. I CAN’T.

9 Q. QUESTIONS WERE RAISED ABOUT SELLING THE COOKIES AND

10 MR. WESTERFIELD CONTRIBUTED TO THE CHARITY FOR THE SERVICEMEN

11 OVERSEAS; IS THAT CORRECT?

12 A. YES.

13 Q. HOW MUCH DID HE CONTRIBUTE TO THE SERVICEMEN

14 OVERSEAS?

15 A. ONE BOX.

16 Q. THERE’S REFERENCE TO A FATHER/DAUGHTER DANCE IN THE

17 QUESTIONS YOU JUST ANSWERED. THAT WAS COMING UP WHEN?

18 A. THE THURSDAY AFTER SHE WAS TAKEN.

19 Q. AND WERE YOU MAKING SOME SORT OF PREPARATIONS FOR

20 HER TO GO THAT LAST FRIDAY?

21 A. THAT’S WHY WE WERE AT MERVYN’S. WE WERE SHOPPING.

22 Q. WHAT WERE YOU TRYING TO FIND?

23 A. SOMETHING SPECIAL TO GO WITH THE THEME.

24 Q. DID YOU FIND SOMETHING?

25 A. YES.

26 Q. WHAT DID YOU FIND?

27 A. A REALLY SPARKLY SHIRT AND — IT WAS TWO PIECES.

28 AND SHE HAD THESE SPARKLY PANTS TO GO WITH IT. THE THEME WAS TO
3958
1 BE A STAR.

2 Q. DID YOU BUY IT FOR HER?

3 A. YES.

4 Q. AND WHEN WAS IT IN THERE THAT THE BOYS WANTED TO GO

5 SOMEWHERE ELSE?

6 A. WHILE WE WERE LOOKING FOR THE CLOTHES, DEREK AND

7 DYLAN WANTED TO RUN OVER TO THE TOY STORE AND PICK OUT DYLAN’S

8 GIFT, SO I WATCHED THEM GO OVER THERE REAL QUICK, WENT BACK,

9 FINISHED PICKING OUT SOME STUFF FOR DANIELLE. SHE WENT INTO THE

10 DRESSING ROOM TO TRY IT ON, AND THEN I RAN OVER AND GOT THEM

11 REAL QUICK AND BROUGHT THEM BACK.

12 Q. HOW WAS SHE WHEN YOU GOT THERE?

13 A. SHE WAS TRYING ON CLOTHES.

14 Q. THE PHOTOGRAPHS THAT WE SHOWED YOU HERE OF

15 DANIELLE, BOTH BEFORE AND AFTER THE HAIRCUT, THE ONE PASSPORT

16 PHOTO WAS — I THINK YOU TOLD US WHEN THAT WAS TAKEN, IN

17 JANUARY; IS THAT CORRECT?

18 A. THE PASSPORT PHOTO?

19 Q. THE PASSPORT PHOTOGRAPH, WHEN WAS THAT TAKEN?

20 A. FEBRUARY 1ST.

21 Q. FEBRUARY.

22 AND THE OTHER PHOTOGRAPH, THE SCHOOL PHOTOGRAPH,

23 WHEN WAS THAT TAKEN?

24 A. OCTOBER.

25 Q. THERE WAS QUESTIONS REGARDING BARBARA BEING AROUND

26 YOUR DAUGHTER.

27 A. YES.

28 Q. WERE YOU CONCERNED ABOUT THE SAFETY OF YOUR
3959
1 DAUGHTER WITH BARBARA BEING AROUND HER?

2 A. NO.

3 Q. WHY NOT?

4 A. BECAUSE BARBARA WOULDN’T — BARBARA’S NICE. SHE

5 WOULDN’T DO ANYTHING TO HURT MY CHILDREN.

6 Q. SO — BUT YOU LET BARBARA GO UPSTAIRS TO YOUR

7 HOUSE, THE CHILDREN WERE UP THERE, DIDN’T YOU?

8 A. I DIDN’T LET HER. SHE WENT UP THERE.

9 Q. DIDN’T THAT ENDANGER YOUR CHILDREN?

10 A. NO.

11 Q. WHY NOT?

12 A. BECAUSE THEY WERE TUCKED AWAY IN THEIR BEDS.

13 Q. WHEN BARBARA LEFT THE HOUSE THAT NIGHT DID SHE HAVE

14 YOUR CHILD?

15 MR. FELDMAN: ASKED AND ANSWERED.

16 THE COURT: SUSTAINED. IT’S BEEN COVERED, COUNSEL.

17

18 BY MR. DUSEK:

19 Q. WAS ANYTHING MISSING FROM YOUR HOUSE THE MORNING

20 THAT YOU GOT UP AND SHE WAS GONE?

21 A. MY DAUGHTER.

22 Q. DID YOU CHECK TO SEE IF ANY PERSONAL BELONGINGS OR

23 OTHER ITEMS WERE MISSING FROM THE HOUSE?

24 A. I CHECKED TO TRY AND FIND OUT WHAT PAIR OF PAJAMAS

25 SHE WAS WEARING.

26 Q. WERE YOU ABLE TO DETERMINE THAT?

27 A. YES.

28 Q. HOW?
3960
1 A. BECAUSE I’M A PERSON WHO BUYS ALL THE CLOTHING. I

2 KNOW WHAT SHE HAS, AND I KNOW WHICH PAJAMAS SHE LIKES TO WEAR

3 THE MOST, AND THEY WEREN’T IN THE HOUSE.

4 Q. WERE THOSE THE ONES THAT YOU DESCRIBED EARLIER FOR

5 ME?

6 A. YES.

7 Q. WAS ANYTHING ELSE MISSING OR TAKEN FROM YOUR HOUSE?

8 A. NOT THAT I KNOW OF.

9 Q. HOW THOROUGHLY DID YOU CHECK?

10 A. I CHECKED JEWELRY. I CHECKED EVERYTHING TO SEE IF

11 ANYTHING ELSE WAS MISSING. I WISHED THEY HAD TAKEN EVERYTHING

12 ELSE BUT HER.

13 MR. DUSEK: THANK YOU, MA’AM.

14 THE COURT: ALL RIGHT.

15 ANYTHING FURTHER, MR. FELDMAN.

16 MR. FELDMAN: NO. THANK YOU.

17 THE COURT: ALL RIGHT. MAY THIS WITNESS BE SUBJECT TO

18 THE ORDER OF THE COURT MADE YESTERDAY?

19 MR. FELDMAN: YES, YOUR HONOR.

20 MR. DUSEK: YES. THANK YOU.

21 THE COURT: ALL RIGHT. MA’AM, YOU’RE FREE TO LEAVE AT

22 THIS TIME, AND MR. DUSEK WILL KEEP YOU POSTED ON WHEN YOU MAY

23 RETURN. THANK YOU FOR COMING IN.

24 COUNSEL, THERE’S AN EXHIBIT ON THE TABLE.

25 ALL RIGHT. YOU’RE FREE TO GO.

26 ALL RIGHT. MR. DUSEK.

27 MR. DUSEK: SEAN BROWN.

28 ///
3961
1 -SEAN BROWN,+

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

3

4 THE COURT: PLEASE HAVE A SEAT, SIR.

5 THE CLERK: SIR, WOULD YOU PLEASE STATE YOUR NAME AND

6 SPELL IT FOR THE RECORD?

7 THE WITNESS: SEAN BROWN, S-E-A-N, B-R-O-W-N.

8

9 DIRECT EXAMINATION+

10 BY MR. DUSEK:

11 Q. HOW ARE YOU EMPLOYED, MR. BROWN?

12 A. I’M SORRY. WHAT?

13 Q. HOW ARE YOU EMPLOYED?

14 A. I’M A BAR MANAGER AT DAD’S CAFE.

15 Q. IS THAT THE SHIRT YOU’RE WEARING?

16 A. YES.

17 Q. HOW LONG HAVE YOU BEEN WORKING THERE?

18 A. FOUR YEARS.

19 Q. WHAT DO YOU DO?

20 A. BASICALLY, I’M A — I’M IN CHARGE OF THE STAFF ON

21 THE NIGHTS I WORK, THURSDAY, FRIDAY, SATURDAY, SUNDAY. I’M ALSO

22 A BARTENDER, HEAD BARTENDER THERE. I SERVE THE DRINKS.

23 Q. WHAT ARE YOUR HOURS?

24 A. 5:30 TO CLOSE AND BEYOND.

25 Q. 5:30 IN THE AFTERNOON?

26 A. 5:30 IN THE AFTERNOON TILL 2:00 IN THE MORNING.

27 Q. THAT’S CLOSING TIME?

28 A. YEAH.
3962
1 Q. SIR, I’D LIKE TO DIRECT YOU BACK TO — LET’S START

2 WITH JANUARY 25TH OF THIS YEAR.

3 WERE YOU WORKING A SHIFT THAT EVENING AT DAD’S?

4 A. YES, I WAS.

5 Q. WHERE IS DAD’S LOCATED?

6 A. IT’S ON POWAY ROAD, 12735 POWAY ROAD, RIGHT ACROSS

7 FROM PERRY FORD THERE.

8 Q. LET ME SHOW YOU AN AERIAL PHOTOGRAPH, IF I MAY, OF

9 EXHIBIT 30, LABELED AT THE TOP “DAD’S CAFE AND STEAK HOUSE.”

10 DO YOU RECOGNIZE WHAT WE HAVE DEPICTED THERE?

11 A. YEAH.

12 Q. DOES THAT APPEAR TO BE DAD’S?

13 A. YES.

14 Q. WHERE IT HAS THE — LOOKS LIKE THE RED SIDES ON THE

15 BUILDING?

16 A. YES.

17 Q. AND IT’S ON POWAY ROAD?

18 A. YEAH.

19 Q. THAT EVENING ON THE 25TH, DO YOU RECALL ABOUT WHAT

20 TIME YOU STARTED WORK?

21 A. 5:30 P.M.

22 Q. DID YOU BECOME AWARE OF AN INDIVIDUAL BY THE NAME

23 OF DAVID WESTERFIELD?

24 A. YES, I DID.

25 Q. DO YOU SEE HIM IN COURT TODAY?

26 A. YES, I DO.

27 Q. WOULD YOU POINT HIM OUT, PLEASE, AND DESCRIBE WHAT

28 HE’S WEARING TODAY?
3963
1 A. HE’S WEARING A GRAY SUIT AND A TIE. I DON’T KNOW

2 WHAT COLOR THAT IS, THOUGH, FROM HERE.

3 THE COURT: THE RECORD WILL REFLECT IDENTIFICATION.

4

5 BY MR. DUSEK:

6 Q. HOW DID YOU KNOW MR. WESTERFIELD?

7 A. HE HAD COME IN AND JOINED A REGULAR THERE NAMED

8 GARRY, AND GARRY AND I WERE FRIENDS, AND SO HE INTRODUCED ME TO

9 DAVID.

10 Q. IS THAT THE FIRST TIME YOU HAD SEEN MR. WESTERFIELD

11 AT DAD’S?

12 A. I BELIEVE SO. HE MIGHT HAVE COME IN PREVIOUSLY,

13 BUT I’M NOT SURE.

14 Q. WHAT WAS HE DOING THERE?

15 A. JOINING THE FRIEND AND HAVING A DRINK OR TWO.

16 Q. ABOUT WHAT TIME COULD YOU TELL US HE GOT THERE?

17 A. IS THIS — ARE WE TALKING ABOUT THE 25TH?

18 Q. 25TH. WE’LL START AT THE 25TH AND GO

19 CHRONOLOGICALLY.

20 A. ALL RIGHT. I DON’T RECALL.

21 Q. CAN YOU ESTIMATE FOR US LIGHT OUT, DARK OUT,

22 ANYTHING LIKE THAT?

23 A. USUALLY AT THAT TIME, 5:30, IT WAS PROBABLY DARK

24 OUT, SO EARLY EVENING.

25 Q. WHAT DID HE DRINK?

26 A. I BELIEVE MR. WESTERFIELD DRINKS BACARDI AND COKE.

27 Q. WHAT SIZE?

28 A. TALL.
3964
1 Q. WHAT’S THAT MEAN?

2 A. SIXTEEN OUNCE GLASS.

3 Q. BACARDI IS WHAT?

4 A. RUM, LIGHT RUM.

5 Q. IS THERE A PARTICULAR SPOT THAT HE STAYS IN THE

6 BAR?

7 A. YEAH. IT’S USUALLY GARRY WOULD SIT IN THE CORNER

8 AND DAVE WOULD USUALLY STAND RIGHT NEXT TO HIM, SO —

9 Q. WHAT WOULD HE DO IN THE BAR?

10 A. JUST TALK — JUST TALK TO GARRY, HANG OUT. MAYBE

11 PEOPLE WATCH OR SOMETHING, BUT USUALLY HE WAS CONVERSATING WITH

12 GARRY.

13 Q. DID YOU BECOME FAMILIAR WITH A LADY KNOWN AS BRENDA

14 VAN DAM?

15 A. FAMILIAR? I GUESS I KNEW ABOUT HER AFTER

16 EVERYTHING.

17 Q. ALL RIGHT.

18 THAT’S THE LADY I’M TALKING ABOUT, BRENDA VAN DAM.

19 A. YES.

20 Q. DO YOU KNOW IF SHE WAS THERE THAT EVENING ON THE

21 25TH?

22 A. I BELIEVE I REMEMBER HER COMING IN WITH HER

23 FRIENDS, YES.

24 Q. DESCRIBE HER FRIENDS. MALE OR FEMALE?

25 A. TWO FRIENDS, FEMALE. ONE TALL — GOSH, I DON’T

26 KNOW, FIVE-EIGHT, FIVE-TEN, AND A SHORTER BRUNETTE.

27 Q. WHEN DID THEY COME INTO THE PLACE IN RELATION TO

28 WHEN MR. WESTERFIELD WAS THERE?
3965
1 A. I’M NOT EXACTLY SURE, BUT I’D SAY MAYBE AN HOUR OR

2 TWO AFTER MR. WESTERFIELD WAS THERE.

3 Q. DID YOU SEE ANY CONTACT BETWEEN THE LADY YOU CAME

4 TO KNOW AS BRENDA VAN DAM AND MR. WESTERFIELD?

5 A. ON THE 25TH I DO NOT RECALL. ARE WE TALKING ABOUT

6 THE 25TH, SIR?

7 Q. STILL ON THE 25TH. I’LL LET YOU KNOW WHEN WE LEAVE

8 THE 25TH.

9 A. OKAY.

10 Q. WAS THERE ANY DIFFICULTY WITH MR. WESTERFIELD ON

11 THE 25TH?

12 A. YES. THERE WAS — I GUESS THERE WAS A DISPUTE WITH

13 HIM AND MY OTHER BARTENDER IVAN —

14 MR. FELDMAN: OBJECTION.

15 MR. BOYCE: RELEVANCE.

16 THE COURT: AT THIS POINT IN TIME OVERRULED. YOU MAY

17 CONCLUDE YOUR ANSWER.

18 THE WITNESS: — REGARDING PRICES. WHEN IT TURNS 9

19 O’CLOCK AND THE BAND STARTS, OUR PRICES GO UP A LITTLE BIT AND

20 DAVID WAS NOT AWARE OF THAT. SO WE — I WENT AROUND AND TALKED

21 TO DAVID AND EXPLAINED THAT TO HIM.

22

23 BY MR. DUSEK:

24 Q. WHY DID YOU NEED TO EXPLAIN? WHAT WAS THE PROBLEM?

25 A. WELL, I THINK THAT HE WAS VERY UNCLEAR AND IT

26 SEEMED LIKE HE WAS A LITTLE BOTHERED BY THAT.

27 Q. HOW COULD YOU TELL?

28 A. BY MAYBE —
3966
1 MR. BOYCE: OBJECTION, RELEVANCE.

2 THE COURT: SUSTAINED.

3 YOU NEED NOT ANSWER, SIR.

4

5 BY MR. DUSEK:

6 Q. YOU INDICATED THAT THERE WAS A BAND THERE THAT

7 EVENING?

8 A. ON THE 25TH, YES.

9 Q. WHAT HAPPENED WHEN THE BAND STARTS PLAYING?

10 A. PEOPLE GET UP, DANCE.

11 Q. IS THAT WHAT THEY’RE SUPPOSED TO DO?

12 A. YES.

13 Q. DESCRIBE FOR US WHAT DAD’S IS ABOUT, THE TYPE OF

14 FACILITIES YOU HAVE THERE.

15 A. WELL, MAINLY A RESTAURANT AND — WE HAVE A

16 RESTAURANT SIDE AND KIND OF LIKE A BAR SIDE WHERE WE HAVE A LOT

17 OF TV — IT’S A SPORTS BAR, AND IN THE BACK ROOM WE HAVE POOL

18 TABLES AND GAMES FOR THE KIDS. IT’S A FAMILY RESTAURANT. AND

19 THE ONLY TIME WE DO HAVE BANDS USUALLY IS ON FRIDAY AND

20 SATURDAYS AT 9 O’CLOCK P.M.

21 Q. LET ME SHOW YOU COURT’S EXHIBIT 31, THIS PHOTO

22 DISPLAY BOARD LABELED AT THE TOP “DAD’S CAFE AND STEAK HOUSE.”

23 DO YOU RECOGNIZE WHAT WE HAVE DEPICTED AT THE TOP

24 OF THE CHART, PHOTOGRAPH “A”?

25 A. YEAH.

26 Q. WHAT DOES THAT SHOW US?

27 A. IT SHOWS THE VERY FRONT OF THE RESTAURANT RIGHT

28 WHEN YOU PULL IN OFF POWAY ROAD.
3967
1 Q. AND WE’RE LOOKING FROM POWAY ROAD TOWARDS THE REAR

2 OF THE PARKING LOT AREA?

3 A. YEAH. RIGHT THERE, YES.

4 Q. PHOTOGRAPH “B”, WHAT IS THAT SHOWING US?

5 A. PHOTOGRAPH “B” IS WHERE SOME OF OUR RESTAURANT

6 SEATING IS, RIGHT THROUGH HERE. YOU CAN SEE A TABLE RIGHT

7 THERE.

8 Q. ON THE RIGHT-HAND SIDE OF THE PHOTOGRAPH?

9 A. CORRECT. YOU CAN SEE THE TVS, OUR BIG SCREEN AND

10 THIS IS THE DANCE FLOOR REGION.

11 Q. IT’S IN THE CENTER OF THE PHOTOGRAPH?

12 A. YES. AND THIS IS THE BAR REGION.

13 Q. WHICH IS OVER ON THE LEFT-HAND SIDE?

14 A. YES.

15 Q. IS THERE OTHER SEATING AREAS FOR THE RESTAURANT?

16 A. BACK BEHIND THIS THERE’S A LITTLE WALL HERE, AND

17 THERE’S A LOT OF TABLES BACK TO THE RIGHT OF THIS TABLE HERE.

18 Q. WHICH IS ON THE RIGHT-HAND SIDE OF THE PHOTOGRAPH?

19 A. YES.

20 Q. THE AREA WHERE MR. WESTERFIELD WAS HANGING OUT ON

21 THE 25TH, IS THAT DEPICTED IN PHOTOGRAPH “B”?

22 A. YEAH. MR. WESTERFIELD WAS STANDING RIGHT HERE AT

23 THIS — NEXT TO THIS CHAIR, AND I BELIEVE GARRY — GARRY WAS

24 SITTING RIGHT THERE.

25 Q. WHERE YOU’RE INDICATING APPEARS TO BE THE CORNER OF

26 THE BAR CLOSEST TO THE CAMERAMAN?

27 A. CORRECT.

28 Q. AND THE TWO TABLES OR TWO CHAIRS IMMEDIATELY
3968
1 ADJACENT TO THAT CORNER AREA?

2 A. YES, YES.

3 Q. DID YOU SEE WHERE BRENDA VAN DAM AND HER FRIENDS

4 WENT AFTER THEY GOT THERE?

5 A. ON THE 25TH, NO, I DON’T RECALL.

6 Q. DURING THAT EVENING ARE YOU ABLE TO TELL US HOW

7 LONG THE DEFENDANT WAS THERE?

8 A. ON THE 25TH?

9 Q. THAT’S RIGHT.

10 A. NO, I DON’T RECALL.

11 Q. DO YOU KNOW HOW MUCH HE HAD TO DRINK?

12 A. NO, I DON’T RECALL.

13 Q. DO YOU KNOW HOW MUCH BRENDA VAN DAM OR EITHER OF

14 HER FRIENDS HAD TO DRINK?

15 A. THE 25TH, I DON’T THINK THEY WERE EVEN IN THE

16 RESTAURANT THAT LONG. BUT NO, I DON’T RECALL.

17 Q. DID YOU SEE ANY INAPPROPRIATE BEHAVIOR FOR DAD’S

18 THAT EVENING FROM EITHER BRENDA VAN DAM OR HER FRIENDS?

19 A. NO.

20 Q. NOW I’D LIKE TO MOVE UP TO FEBRUARY 1ST.

21 WERE YOU BACK AT WORK AT DAD’S THAT EVENING?

22 A. YES.

23 Q. AGAIN, WHAT TIME DID YOU START?

24 A. 5:30 P.M.

25 Q. DID YOU SEE THE DEFENDANT IN THE BAR/RESTAURANT

26 THAT EVENING?

27 A. MR. WESTERFIELD, YES.

28 Q. ABOUT WHAT TIME DID HE ARRIVE, DO YOU KNOW?
3969
1 A. IT’S KIND OF VAGUE BUT IT’S AROUND 7:00 TO 7:30-ISH

2 I’M GONNA GUESS HE WAS THERE.

3 Q. DID HE SEEM TO COME IN ALONE OR WITH ANYBODY?

4 MR. FELDMAN: EXCUSE ME, YOUR HONOR, TO THE LAST ANSWER

5 MOTION TO STRIKE BECAUSE THE WITNESS IS INDICATING HE’S GUESSING

6 AND SPECULATION.

7 THE COURT: SUSTAINED AS TO THE GUESS ANSWER.

8

9 BY MR. DUSEK:

10 Q. WHEN HE CAME IN DID HE COME ALONE OR WITH ANYONE?

11 A. ALONE.

12 Q. DO YOU KNOW IF ANY OF HIS FRIENDS WERE IN THERE

13 WHEN HE ARRIVED?

14 A. GARRY WAS THERE, YES.

15 Q. WHERE DID THEY GO?

16 A. SAME SPOT IN THE BAR.

17 Q. WHAT DID THEY DO?

18 A. SAME THING. JUST, YOU KNOW, INTERACT, TALK WITHIN

19 THEMSELVES AND SO FORTH.

20 Q. ARE YOU FAMILIAR WITH THE PHRASE “PEOPLE WATCHER”?

21 A. YES.

22 Q. WHAT DOES THAT MEAN?

23 A. MAYBE JUST SITTING BACK AND WATCHING PEOPLE’S

24 MANNERISMS OR WHAT THEY’RE DOING AND SO FORTH.

25 Q. MR. WESTERFIELD A PEOPLE WATCHER?

26 MR. BOYCE: OBJECTION, RELEVANCE, LACK OF FOUNDATION.

27 THE COURT: OVERRULED.

28 YOU CAN ANSWER.
3970
1 THE WITNESS: WOW, I WOULD GUESS YES.

2 MR. BOYCE: OBJECTION, VAGUE.

3 THE WITNESS: NO. I WOULD SAY YES.

4 THE COURT: WELL, THE JURY’S TO DISREGARD THE LAST

5 ANSWER.

6 LET’S REDO IT, COUNSEL.

7

8 BY MR. DUSEK:

9 Q. BASED UPON YOUR OBSERVATIONS OF HIS BEHAVIORS —

10 A. YES.

11 Q. — IN THE BAR?

12 A. I BELIEVE, YES.

13 MR. BOYCE: OBJECTION, VAGUE, LACK OF FOUNDATION,

14 IRRELEVANT.

15 THE COURT: WELL, YOU CAN COVER THAT ON CROSS-EXAMINATION

16 BUT LET’S GET THE FULL QUESTION AND ANSWER. IT’S BEEN

17 DISJOINTED HERE.

18

19 BY MR. DUSEK:

20 Q. WHAT’S THE BASIS FOR THAT OPINION OR THAT

21 ASSESSMENT?

22 A. WELL, MAYBE IF THERE’S A CONVERSATION BETWEEN GARRY

23 AND HIM, AND THEY STOPPED OR HESITATED, HE WOULD — THEY WOULD

24 TURN AROUND AND WATCH THE PEOPLE IN THE BAR, MAYBE NOT TALK FOR

25 A WHILE AND OBSERVE WHAT’S GOING ON. THAT’S WHAT I WOULD

26 CONSIDER A PEOPLE WATCHER. SO YES, I WOULD SAY HE’S A PEOPLE

27 WATCHER.

28 Q. DID YOU EVER SEE HIM PLAY POOL?
3971
1 A. NO.

2 Q. DID YOU EVER SEE HIM DANCE?

3 A. NO.

4 Q. WHAT WOULD HE DO?

5 A. HE WOULD JUST HANG — I GUESS HANG OUT WITH GARRY.

6 THAT’S ALL I CAN SAY.

7 Q. ON THE 1ST OF FEBRUARY, DID BRENDA VAN DAM AND HER

8 FRIENDS COME BACK?

9 A. YES.

10 Q. THEY APPEARED TO BE THE SAME TWO FRIENDS?

11 A. YES.

12 Q. ARE YOU ABLE TO ESTIMATE FOR US ABOUT WHEN THEY GOT

13 BACK?

14 A. AROUND 9 O’CLOCK. 9:00 P.M.

15 Q. DO YOU KNOW IF THEY JOINED UP OR MET UP WITH ANYONE

16 ELSE?

17 A. NO, THEY DID NOT.

18 Q. WHAT DID YOU SEE THEM DO?

19 A. THEY SAT AT THE BAR, THEY HAD A COUPLE DRINKS AND

20 THEY WERE I GUESS THERE TO ENJOY THE ENVIRONMENT.

21 Q. WHO WERE THEY SPEAKING WITH?

22 A. BASICALLY WITH THEMSELVES.

23 Q. WHAT DO YOU MEAN BY THAT?

24 A. JUST CONVERSATING WITH EACH OTHER, THE OTHER TWO

25 GIRLS AND BRENDA.

26 Q. DID YOU SEE ANY INTERACTION BETWEEN THEM AND MR.

27 WESTERFIELD?

28 A. I REMEMBER ONCE DAVID WALKING OVER SAYING SOMETHING
3972
1 TO THE GIRLS AND MAYBE CONVERSATING FOR A LITTLE BIT AND THEN

2 WALKING AWAY. IT APPEARED LIKE IT WAS A JOKE OR SOMETHING LIKE

3 THAT AND HE WALKED AWAY.

4 Q. HOW LONG DID HE REMAIN WITH THEM?

5 A. OH, AT THAT — THAT MOMENT I DON’T KNOW, MAYBE 20

6 SECONDS.

7 Q. AND WHERE WERE YOU POSITIONED DURING THIS TIME, MR.

8 BROWN?

9 A. AT THE MAIN WELL NEAR THE CORNER OF THE BAR WHERE

10 MR. WESTERFIELD WAS STANDING.

11 Q. IS THAT VISIBLE IN ANY OF THE PHOTOGRAPHS ON

12 EXHIBIT 31?

13 A. YEAH, ACTUALLY IT IS, IN PHOTO “E”.

14 Q. PHOTO “E” IS TO DEPICT THE PHOTOGRAPH ON THE

15 BOTTOM.

16 A. OH, I’M SORRY.

17 Q. THE LETTERS ARE AT THE TOP OF THE PHOTOGRAPH?

18 A. ALL RIGHT. IT’S “C.”

19 Q. ALL RIGHT.

20 A. AND IT’S IN THE FAR RIGHT CORNER OR TOP — YEAH,

21 TOP RIGHT. WHOOPS.

22 Q. WOULD THAT BE THE FAR END OF THE BAR THAT’S VISIBLE

23 THERE?

24 A. YES.

25 Q. HOW LONG WERE YOU WORKING THAT SPOT THAT NIGHT?

26 A. WELL, WE — WE MOVE QUITE A BIT BEHIND THE BAR. WE

27 GOT TAPS AROUND THE OTHER SIDE, LIKE RIGHT IN THE MIDDLE, AND SO

28 WE’LL MOVE AROUND, GET DRINKS. WE’LL GET BOTTLES IN THE BACK
3973
1 AND SO FORTH. AND SO — BUT THAT’S WHERE WE DROP THE SERVERS’

2 DRINKS WHEN THEY ORDER DRINKS, SO I WOULD BE AROUND THAT AREA IN

3 AND OUT ALL NIGHT.

4 Q. DO YOU GET A BREAK, LUNCH BREAK OR DINNER OR

5 ANYTHING?

6 A. NO, NO.

7 Q. WOULD YOU STEP TO THE BOARD AND TAKE A RED FELT PEN

8 AND PUT THE INITIALS “DW” WHERE YOU SAW DAVID WESTERFIELD

9 HANGING OUT?

10 A. WHICH PHOTO?

11 Q. PHOTOGRAPH “B”. LET’S START WITH THAT ONE. MAKE

12 IT BIG ENOUGH SO WE CAN FIND IT LATER.

13 THAT DOESN’T WORK? LET’S SWITCH YOU TO BLACK.

14 THE COURT: LET’S GET RID OF THAT ONE. THANK YOU.

15

16 BY MR. DUSEK:

17 Q. YOU’VE DONE THAT?

18 A. YES.

19 Q. IS THAT LOCATION ALSO VISIBLE IN PHOTOGRAPH “C”?

20 A. YES, IT IS.

21 Q. COULD YOU MARK THAT ALSO WITH A “DW”?

22 A. (WITNESS COMPLYING.)

23 Q. THANK YOU, SIR.

24 DID YOU SEE WHAT BRENDA VAN DAM AND HER GIRLFRIENDS

25 WERE DOING THAT NIGHT?

26 A. THEY WERE CONVERSATING, JUST LIKE I SAID, IN

27 BETWEEN THEMSELVES.

28 Q. DID YOU SEE ‘EM DO ANYTHING ELSE?
3974
1 A. NO.

2 Q. REMEMBER SEEING THEM GO PLAY POOL AT ALL?

3 A. I REMEMBER GLANCING AND — BACK AND I CAN SEE

4 BRENDA’S RED SWEATER AND SHE WAS IN THE POOL AREA, YES.

5 Q. DO YOU KNOW WHO SHE WAS OVER THERE WITH?

6 A. NO.

7 Q. DO YOU KNOW WHERE THE DEFENDANT WAS AT THAT TIME?

8 A. NO.

9 Q. BRENDA VAN DAM AND HER FRIENDS APPEAR TO BE ACTING

10 INAPPROPRIATELY?

11 A. NO.

12 Q. DO YOU KNOW IF THEY DANCED THAT NIGHT?

13 A. NO.

14 Q. WHY NOT?

15 A. BAR’S VERY BUSY WHEN YOU HAVE A BAND THERE, YOU

16 HAVE A LOT OF ACTIVITIES. IT WAS A GOOD BAND. ALSO, THE FACT I

17 HIRED THE BANDS, WE HAVE BANDS THERE ALL THE TIME. FOR PEOPLE

18 TO DANCE IS NOT UNFAMILIAR, SO LIKE I WOULDN’T BE ALARMED IF I

19 SAW MR. WESTERFIELD DANCING OR ANYTHING LIKE THAT.

20 Q. WHAT ARE PEOPLE SUPPOSED TO DO WHEN THE BAND

21 STARTS?

22 A. DANCE.

23 Q. DO YOU DO ANYTHING WITH REGARD TO THE DANCE FLOOR

24 WHEN THE BAND STARTED?

25 A. WE MOVE THOSE TABLES THAT ARE ON THE DANCE FLOOR.

26 Q. THE DRINKS — DO YOU REMEMBER WHAT BRENDA VAN DAM

27 WAS DRINKING THAT NIGHT?

28 A. I DON’T RECALL.
3975
1 Q. DO YOU KNOW HOW MUCH SHE HAD TO DRINK?

2 A. I’M GUESSING TWO OR THREE DRINKS.

3 Q. WHY DO YOU SAY THAT?

4 A. BECAUSE I REMEMBER HER ORDERING A COUPLE DRINKS AND

5 THEN HER WINDING DOWN AND DRINKING A LOT OF WATER.

6 Q. WHAT DO YOU MEAN BY “WINDING DOWN”?

7 A. WELL, BASICALLY JUST NOT DRINKING ANY MORE. I

8 REMEMBER FILLING HER A GLASS OF WATER TWO OR THREE TIMES.

9 Q. WHEN WAS THAT IN THE EVENING?

10 A. THAT WAS LATER. MAYBE AFTER 10:00.

11 Q. HOW LONG — WERE YOU ABLE TO ESTIMATE HER STATE OF

12 SOBRIETY? SOBER OR NOT, DRUNK OR NOT, THAT’S WHAT I MEAN.

13 A. OH, I DON’T — I DON’T THINK SHE WAS DRUNK.

14 Q. WHY NOT?

15 A. JUST BECAUSE THE WAY SHE WAS REACTING IN FRONT OF

16 ME. SHE SEEMED VERY — SHE WAS IN GOOD SPIRITS BUT SHE WAS

17 CONTROLLING HERSELF IN THE ENVIRONMENT AROUND IT — HERSELF, I’M

18 SORRY.

19 Q. WHAT DO YOU MEAN BY THAT?

20 A. JUST — I MEAN, SHE WAS AWARE OF WHAT WAS GOING ON

21 IT SEEMED LIKE TO ME. SHE WAS TALKING TO HER FRIENDS AND SO

22 FORTH. SHE WASN’T SLURRING. SHE WASN’T ACTING, YOU KNOW, LIKE

23 A DRUNK PERSON WOULD.

24 Q. DO YOU KNOW HOW LONG MR. WESTERFIELD REMAINED AT

25 THE ESTABLISHMENT THAT NIGHT ABOUT?

26 A. LAST TIME I SAW DAVID WAS AROUND 10:30 OR SO.

27 Q. WHERE WAS HE THE LAST TIME YOU SAW HIM?

28 A. THE CORNER OF THE BAR.
3976
1 Q. THE PLACE THAT YOU’VE INDICATED ALREADY?

2 A. YES.

3 Q. HOW WAS IT THAT YOU NOTICED THAT HE WAS GONE?

4 A. ‘CAUSE WE PUT ALL THE SERVER DRINKS RIGHT THERE AND

5 HE — WHEN SOMEONE’S NOT STANDING THERE YOU JUST NOTICE THEY’RE

6 NOT THERE, SO —

7 Q. HOW ABOUT HIS FRIENDS OR HIS FRIEND GARRY, DO YOU

8 KNOW IF HE WAS STILL THERE?

9 A. NO, HE WAS NOT THERE.

10 Q. WHEN PEOPLE BUY DRINKS — FORGET ABOUT PEOPLE.

11 WHEN BRENDA VAN DAM WAS GETTING HER DRINKS, DO YOU KNOW HOW SHE

12 WAS PAYING FOR THEM?

13 A. CASH.

14 Q. AND HOW ABOUT WHEN MR. WESTERFIELD WAS BUYING

15 WHATEVER DRINKS HE HAD?

16 A. CASH.

17 Q. IS THERE ANY RECEIPTS OR ABILITY AT DAD’S TO GO

18 BACK AND CHECK TO SEE HOW MANY ANYBODY WAS HAVING?

19 A. NO.

20 Q. DID YOU TRY?

21 A. THE ONLY WAY WE’D BE ABLE TO DO THAT IS IF THEY PAY

22 BY CREDIT CARD, AND THEN WE’D BE ABLE TO ESTIMATE HOW MUCH THEY

23 HAD AND SO FORTH. BUT WITH CASH WE HAVE SOMETIMES HIGH DOLLAR

24 AMOUNTS OF CASH TRANSACTIONS. IT’S HARD TO GO BACK AND FIND

25 THOSE.

26 Q. DID WE ASK YOU TO GO CHECK?

27 A. I BELIEVE ONE OF YOUR ASSISTANTS DID, YES.

28 Q. DID YOU SEE ANY INAPPROPRIATE BEHAVIOR ON THE PART
3977
1 OF BRENDA VAN DAM AT DAD’S THAT EVENING?

2 A. NO, I DID NOT.

3 Q. HOW ABOUT WITH HER TWO GIRLFRIENDS?

4 A. NO, I DID NOT.

5 Q. REGARDING MR. WESTERFIELD’S STATE OF SOBRIETY, DO

6 YOU HAVE AN OPINION ABOUT THAT?

7 A. I BELIEVE DAVID HAD A COUPLE DRINKS, AND MAYBE HE’S

8 FEELING GOOD AND HE HAS TAKEN THE EDGE OFF, BUT I DON’T THINK HE

9 WAS DRUNK BY ANY MEANS.

10 MR. DUSEK: THANK YOU, SIR.

11 THE COURT: ALL RIGHT.

12 CROSS-EXAMINATION.

13 MR. BOYCE: THANK YOU, YOUR HONOR.

14

15 CROSS-EXAMINATION+

16 BY MR. BOYCE:

17 Q. SO YOUR TESTIMONY IS THAT IT WAS A BUSY FRIDAY

18 NIGHT, IS THAT RIGHT?

19 A. YEAH.

20 Q. AND YOU WEREN’T PAYING ATTENTION TO EVERYBODY THAT

21 WAS DANCING THERE?

22 A. CORRECT.

23 Q. YOU DON’T SPECIFICALLY RECALL LOOKING UP AND SEEING

24 BRENDA AND DAVID WESTERFIELD DANCING, DO YOU?

25 A. NO.

26 Q. BUT THEY COULD HAVE DANCED AND YOU DIDN’T SEE THEM?

27

28 MR. DUSEK: OBJECTION, CALLS FOR SPECULATION, YOUR HONOR.
3978
1 THE COURT: SUSTAINED. YOU NEED NOT ANSWER.

2 BY MR. BOYCE:

3 Q. NOW, YOU KNOW DAVID WESTERFIELD FROM BEING IN THERE

4 ON PREVIOUS OCCASIONS, IS THAT RIGHT?

5 A. YES, I DO.

6 Q. YOU HADN’T SEEN HIM FOR SIX OR SEVEN MONTHS, SAY,

7 BEFORE JANUARY 25TH?

8 A. YES.

9 Q. THAT’S A CORRECT STATEMENT?

10 A. THAT’S CORRECT.

11 Q. AND BRENDA, YOU KNEW HER FROM HER FREQUENTING YOUR

12 BAR, IS THAT RIGHT?

13 A. SHE HAD COME IN I THINK TWO TIMES PREVIOUS, OR THAT

14 WAS HER SECOND TIME IN, YES.

15 Q. THREE WEEKENDS IN A ROW?

16 MR. DUSEK: OBJECTION, MISSTATES THE EVIDENCE.

17 THE COURT: THAT’S A QUESTION. YOU MAY ANSWER THAT.

18 THE WITNESS: I DON’T RECALL THREE WEEKENDS IN A ROW, NO.

19

20 BY MR. BOYCE:

21 Q. DO YOU RECALL SEEING HER THERE ON TWO OCCASIONS

22 BEFORE FEBRUARY 1ST?

23 A. YES.

24 Q. DO YOU RECALL SEEING HER IN THERE WITH SOME FRIENDS

25 OF HERS OR WHO APPEARED TO BE FRIENDS OF HERS, IS THAT RIGHT?

26 A. YES.

27 Q. AND HOW MANY GIRLS WERE WITH HER?

28 A. TWO.
3979
1 Q. DO YOU RECALL SEEING ANY MEN AS PART OF HER PARTY?

2 A. WE ARE TALKING ABOUT FEBRUARY 1ST?

3 Q. THAT’S CORRECT.

4 A. NO.

5 Q. I BELIEVE YOU NOTICED THAT THE GIRLS WERE PARTYING

6 HARD REGARDING DRINKING AND DANCING, AND THEY WERE VERY

7 FLIRTATIOUS WITH MALES IN THE BAR?

8 A. THAT STATEMENT WAS — I DON’T KNOW. I THINK IT WAS

9 FABRICATED A LITTLE BIT.

10 Q. THAT IS YOUR STATEMENT, ISN’T IT?

11 A. WELL, THAT’S WHAT THE OFFICER WROTE BUT —

12 Q. WHEN YOU SAY “THE OFFICER WROTE” —

13 MR. DUSEK: YOUR HONOR, MAY HE BE ALLOWED TO ANSWER THE

14 QUESTION?

15 THE COURT: NO. IT CAN BE COVERED IN THE QUESTION. GO

16 AHEAD, MR. BOYCE.

17

18 BY MR. BOYCE:

19 Q. WHEN YOU SAID “THE OFFICER WROTE” WHAT ARE YOU

20 REFERRING TO?

21 A. WHAT I MEANT BY THAT STATEMENT, IS THAT WHAT YOU

22 MEAN?

23 Q. WHEN YOU SAID WHAT THE OFFICER WROTE, WHAT WERE YOU

24 REFERRING TO?

25 A. WELL, I RECEIVED A REPORT TODAY OF WHAT MY

26 STATEMENT WAS AND THAT — AND THAT WAS NOT EXACTLY WHAT I SAID.

27 Q. WHO DID YOU RECEIVE A REPORT FROM?

28 A. I DON’T KNOW IF IT’S A REPORT. IT’S A STATEMENT
3980
1 FROM A POLICE — I RECEIVED IT FROM MR. DUSEK.

2 Q. AND WHEN YOU RECEIVED THAT REPORT DID SOMEONE

3 EXPRESS SOME CONCERN ABOUT THAT STATEMENT IN THE REPORT?

4 A. DID SOMEONE?

5 Q. YES.

6 A. ME.

7 Q. AND YOU WERE ASKED SOME QUESTIONS ABOUT THAT

8 STATEMENT, RIGHT?

9 A. BY — BY WHO? WHAT DO YOU MEAN?

10 Q. BY ANYONE?

11 A. THE ONLY TIME I WAS ASKED THAT QUESTION WAS BY THE

12 OFFICERS, AND AT THAT TIME I READ THIS AND I DID NOT AGREE WITH

13 THAT STATEMENT. BUT NO, THE ATTORNEYS HERE TODAY DID NOT ASK ME

14 ANYTHING REGARDING THAT QUESTION.

15 Q. WHEN YOU SAY THAT YOU WERE HANDED A REPORT BY MR.

16 DUSEK —

17 MR. DUSEK: OBJECTION, MISSTATES THE EVIDENCE.

18

19 BY MR. BOYCE:

20 Q. WHO HANDED YOU THE REPORT TODAY?

21 A. ACTUALLY, IT WASN’T MR. DUSEK. IT WAS HIS

22 ASSISTANT. I THINK HIS NAME’S BILL.

23 Q. BILL REICH?

24 A. YES.

25 Q. HE POINTED OUT THIS STATEMENT TO YOU, IS THAT

26 RIGHT?

27 A. NO, HE DID NOT.

28 Q. WHERE WERE YOU WHEN MR. REICH PRESENTED YOU WITH
3981
1 THIS REPORT?

2 A. I WAS UPSTAIRS ON THE ELEVENTH FLOOR.

3 Q. IN THE DISTRICT ATTORNEY’S OFFICE?

4 A. YES.

5 Q. THIS IS WHEN YOU WERE GOING OVER YOUR TESTIMONY

6 TODAY; IS THAT CORRECT?

7 A. I DIDN’T GO OVER MY TESTIMONY SO MUCH. THEY KIND

8 OF JUST WENT BALLPARK WHAT WAS GONNA HAPPEN.

9 Q. AND IT WAS DURING THIS TIME THAT YOU REVIEWED THE

10 REPORT THAT YOU JUST REFERRED TO; IS THAT RIGHT?

11 A. YES.

12 Q. AND YOU’RE PULLING OUT SOMETHING FROM UNDERNEATH

13 THE STAND, IS THAT RIGHT?

14 A. YEAH, IT’S A WITNESS STATEMENT IT SAYS.

15 Q. YOU HAD THIS ROLLED UP UP THERE?

16 A. CORRECT.

17 Q. AND THESE ARE THE STATEMENTS THAT YOU WERE GIVEN TO

18 BY MR. REICH, IS THAT RIGHT?

19 A. CORRECT.

20 Q. FROM THE DISTRICT ATTORNEY’S OFFICE?

21 A. CORRECT.

22 Q. WHEN DID YOU LEARN YOU WERE GOING TO TESTIFY TODAY?

23 A. A LONG TIME AGO, MAYBE FOUR MONTHS AGO.

24 Q. DID YOU RECEIVE A SUBPOENA?

25 A. YES, I DID.

26 Q. AND YOU WERE TOLD TO COME TO THE DISTRICT

27 ATTORNEY’S OFFICE TODAY, IS THAT RIGHT?

28 A. THAT’S CORRECT.
3982
1 Q. HOW LONG DID YOU SPEND WITH MR. REICH?

2 A. MAYBE 30 SECONDS.

3 Q. THIRTY SECONDS?

4 A. YES.

5 Q. THAT’S IT?

6 A. YES.

7 Q. AND IN THAT 30 SECONDS YOU NOTED THIS ONE

8 STATEMENT, IS THAT RIGHT?

9 A. I NOTED IT WHEN I READ IT.

10 Q. NOW, YOU WERE GIVEN — YOU’VE GOT MORE THAN ONE

11 PIECE OF PAPER UP THERE, DON’T YOU?

12 A. YES.

13 Q. THERE’S THREE PIECES OF PAPER ACTUALLY, AREN’T

14 THERE?

15 A. YES.

16 Q. THOSE ARE TWO DIFFERENT REPORTS?

17 A. YEAH, I BELIEVE SO.

18 Q. AND MR. REICH HANDED YOU THOSE THREE PIECES OF

19 PAPER AND ASKED YOU TO REVIEW THEM, DIDN’T HE?

20 A. HE ASKED ME TO LOOK OVER ‘EM.

21 Q. AND YOU DID ALL THAT IN 30 SECONDS?

22 A. YOU ASKED ME HOW MUCH TIME I SPENT WITH MR. REICH.

23 Q. YES.

24 A. AND I TOLD YOU IT WAS 30 SECONDS.

25 HOW MUCH TIME I REVIEWED THIS WAS TOTALLY

26 DIFFERENT.

27 Q. HOW WAS THAT DIFFERENT?

28 A. BECAUSE HE WAS NOT STANDING THERE THE WHOLE TIME.
3983
1 Q. WHEN YOU WERE REFERRING TO 30 SECONDS, THAT’S JUST

2 WHEN YOU WERE IN THE PRESENCE OF MR. REICH; IS THAT CORRECT?

3 A. THAT’S CORRECT.

4 Q. WHO ELSE WAS PRESENT WHILE YOU WERE REVIEWING YOUR

5 STATEMENTS?

6 A. NOBODY.

7 Q. AND THIS WAS IN THE DISTRICT ATTORNEY’S OFFICE, IS

8 THAT RIGHT?

9 A. CORRECT.

10 Q. THE STATEMENT THAT YOU STATED THAT ALL OF THE GIRLS

11 PARTIED HARD REGARDING DRINKING AND DANCING AND THEY WERE VERY

12 FLIRTATIOUS WITH MALES IN THE BAR, YOU’RE SAYING NOW THAT YOU

13 DID NOT MAKE THAT STATEMENT TO DETECTIVE ROERSON?

14 A. NOT THOSE EXACT WORDS.

15 Q. AND THEN DETECTIVE ROERSON IS INCORRECT, IS THAT

16 RIGHT?

17 A. YES, BY STATING THAT, YES.

18 Q. NOW ALSO IN THE SAME STATEMENT — WELL, YOU NOTICED

19 THAT DAVE AND GARRY, REFERRING TO MR. WESTERFIELD AND GARRY

20 HARVEY, WERE HANGING OUT AT THE BAR; IS THAT CORRECT?

21 A. CORRECT.

22 Q. THEY HAD COME IN ABOUT 10 O’CLOCK THAT EVENING,

23 REFERRING TO FEBRUARY THE 1ST; IS THAT CORRECT?

24 A. I’M SORRY. WHAT DATE?

25 Q. FEBRUARY 1ST THEY HAD COME IN ABOUT — I’M SORRY —

26 8 O’CLOCK P.M.?

27 A. I BELIEVE IT WAS A LITTLE BIT BEFORE THAT, SO

28 BEFORE 8:00.
3984
1 Q. AND YOU NOTICED THEY WERE IN A GROUP AND TALKING

2 WITH BRENDA AND HER GIRLFRIENDS, IS THAT RIGHT?

3 A. TALKING ABOUT MR. WESTERFIELD?

4 Q. YES.

5 A. AND TALKING TO — MR. WESTERFIELD DID CONVERSATE

6 WITH BRENDA, YES.

7 Q. YOU TOLD DETECTIVE ROERSON THAT YOU NOTICED THAT

8 THEY, REFERRING TO DAVID WESTERFIELD AND GARRY HARVEY, WERE IN

9 THE GROUP AND TALKING WITH BRENDA AND HER GIRLFRIENDS, IS THAT

10 RIGHT?

11 A. YES.

12 Q. AND THAT’S A TRUE STATEMENT, ISN’T IT?

13 A. YES.

14 Q. YOU ALSO STATED THAT THE BAR WAS BUSY AND YOU DID

15 NOT NOTICE WHEN THEY ALL LEFT?

16 A. THAT’S CORRECT.

17 Q. SO AT THE MOMENT THAT MR. WESTERFIELD LEFT, YOU

18 AREN’T AWARE OF HIS STATE OF INTOXICATION OR SOBRIETY, ARE YOU?

19 A. THAT’S VERY CORRECT.

20 MR. BOYCE: NOTHING FURTHER. THANK YOU.

21 THE COURT: ANYTHING FURTHER, MR. DUSEK?

22 MR. DUSEK: YES.

23

24 REDIRECT EXAMINATION +

25 BY MR. DUSEK:

26 Q. EXPLAIN IN YOUR WORDS WHAT HAPPENED THE DAY WHEN

27 YOU SHOWED UP IN OUR OFFICE PREPARING TO TESTIFY.

28 A. I SHOWED UP. I CHECKED IN WITH THE RECEPTIONIST.
3985
1 I WAITED FOR A LONG TIME AND THEN —

2 Q. SORRY.

3 A. — AND THEN MR. BILL HANDED ME A STATEMENT STATING,

4 YOU KNOW, YOU MIGHT WANT TO LOOK AT THIS TO JUST TO REHASH MAYBE

5 WHAT YOU SAW OR WHATEVER. THAT’S ALL HE SAID.

6 Q. DID HE REMAIN THERE WITH YOU?

7 A. NO, HE DID NOT.

8 Q. SO WHAT DID YOU DO?

9 A. I READ IT AND I WAITED, AND THEN YOU GUYS BROKE FOR

10 LUNCH AND THEN THAT WAS IT.

11 Q. EVENTUALLY YOU CAME INTO MY OFFICE, DIDN’T YOU?

12 A. THAT IS CORRECT.

13 Q. AND WE CHATTED IN THERE?

14 A. YES.

15 Q. DO YOU REMEMBER THE FIRST THING YOU TOLD ME?

16 A. THIS WAS AN INCORRECT STATEMENT.

17 Q. WHAT WAS AN INCORRECT STATEMENT?

18 A. THE STATEMENT THAT THE OFFICER HAD WROTE DOWN.

19 Q. THAT STATEMENT WAS WHAT?

20 A. THAT SHE WAS — MR. BROWN, WHO WAS ME, STATED THAT

21 THEY WERE PARTYING HARD AND FLIRTATIOUS WITH MEN AND SO FORTH.

22 Q. THAT WASN’T TRUE?

23 A. NO. THE WAY I SAW IT IS BRENDA AND HER GIRLFRIENDS

24 WERE OUT THERE HAVING A FUN TIME, AS GIRLFRIENDS DO, AND THEY

25 WERE — THEY WERE NOT PARTYING HARD. I THINK OF PARTYING HARD

26 I’M THINKING LIKE A BEER, A SHOT OR A DRINK, A SHOT, A DRINK, A

27 SHOT, A DRINK, A SHOT. THEY WERE THERE TO HAVE A GOOD TIME.

28 THEY WERE IN GOOD SPIRITS BUT THEY WERE HAVING FUN, THAT’S ALL.
3986
1 Q. DID THEY APPEAR TO BE BEHAVING ANY DIFFERENTLY THAN

2 THE OTHER PATRONS AT YOUR PLACE?

3 A. NO, NOT AT ALL.

4 Q. AND QUESTIONS WERE ASKED ABOUT WHETHER OR NOT THE

5 DEFENDANT DAVID WESTERFIELD SPOKE WITH BRENDA VAN DAM AND HER

6 GIRLFRIENDS?

7 A. YES.

8 Q. WHEN DID THAT TAKE PLACE? AND USE YOUR WORDS,

9 PLEASE.

10 A. I BELIEVE LIKE, I GUESS — LIKE I SAID, I SAW — I

11 SAW THEM KIND OF JOKE IN BETWEEN EACH OTHER OR TALK, AND ONE

12 TIME DAVID WENT OVER, SAID SOMETHING TO BRENDA OR THE GROUP, AND

13 IT WAS KIND OF LIKE A JOKE, MAYBE 20 SECONDS, 30 SECONDS AND

14 THEN HE LEFT. IT’S LIKE OKAY, I TOLD MY JOKE AND I’M OUT.

15 THAT’S HOW IT WAS.

16 Q. CAN YOU DESCRIBE MR. WESTERFIELD’S PERSONALITY AS

17 HE SITS THERE IN THE BAR?

18 MR. BOYCE: ASKED AND ANSWERED.

19 MR. BOYCE: OBJECTION, IMPROPER CROSS.

20 THE COURT: WELL, IT’S VAGUE AND AMBIGUOUS. REPHRASE.

21

22 BY MR. DUSEK:

23 Q. ARE YOU FAMILIAR WITH THE TERM “A HARD SHELL”?

24 A. YES.

25 Q. WOULD YOU USE THAT TO DESCRIBE ANYONE INVOLVED IN

26 THIS CASE?

27 A. I WOULD SAY THAT I FELT DAVID KIND OF HAD A HARD

28 SHELL.
3987
1 Q. WHY?

2 A. JUST BECAUSE I — NORMALLY —

3 MR. FELDMAN: OBJECTION, IRRELEVANT. ALSO MOTION TO

4 STRIKE.

5 THE COURT: THE LAST PORTION WILL BE STRUCK.

6 MR. DUSEK: NOTHING FURTHER, YOUR HONOR.

7 THE COURT: ALL RIGHT.

8 ANYTHING FURTHER?

9

10 RECROSS-EXAMINATION +

11 BY MR. BOYCE:

12 Q. YOU SAID WHAT YOU BROUGHT TO MR. DUSEK’S ATTENTION

13 WAS THAT IT WAS INCORRECT THAT THE GIRLS WERE PARTYING HARD; IS

14 THAT RIGHT?

15 A. CORRECT.

16 Q. THAT WAS THE INCORRECT PART OF THAT STATEMENT?

17 A. THAT IS VERY TRUE.

18 Q. YOU DIDN’T SEE THEM HAVE ANY SHOTS THAT NIGHT, IS

19 THAT RIGHT?

20 A. I DIDN’T — I CAN’T RECALL.

21 Q. THEY MAY HAVE. YOU JUST DON’T KNOW?

22 A. THAT’S TRUE.

23 Q. WHAT TIME DID THEY LEAVE?

24 A. BRENDA, I BELIEVE THEY LEFT THE BAR AREA WHERE SHE

25 WAS SITTING PROBABLY AROUND 10:30-ISH OR SO.

26 Q. WHAT TIME DID THEY LEAVE DAD’S?

27 A. I DON’T KNOW. WE WERE BUSY AND I DON’T KNOW WHEN

28 THEY LEFT.
3988
1 Q. LAST TIME YOU SAW HER WAS 10:30 OR SO?

2 A. YEAH. AND WE HAVE OTHER PARTS OF THE BAR. THEY

3 COULD HAVE BEEN AT THE POOL TABLES AND SO FORTH.

4 Q. SO YOU DON’T KNOW IF THEY WERE PARTYING HARD AFTER

5 10:30, DO YOU?

6 A. THAT’S PROBABLY A TRUE STATEMENT, YES.

7 Q. THERE’S OTHER BARTENDERS THERE TOO, AREN’T THERE?

8 A. YES, THERE ARE.

9 Q. HOW MANY BARTENDERS DO YOU HAVE ON THAT FRIDAY

10 NIGHT?

11 A. JUST ME AND IVAN.

12 Q. WHEN YOU SAID MR. BILL, YOU’RE REFERRING TO MR.

13 REICH, RIGHT?

14 A. YES.

15 MR. BOYCE: THANK YOU, SIR.

16 THE COURT: ANYTHING FURTHER?

17 MR. DUSEK: NO, YOUR HONOR.

18 THE COURT: IS THIS WITNESS TO BE EXCUSED, COUNSEL?

19 MR. DUSEK: YES.

20 THE COURT: MR. BOYCE, ARE WE EXCUSING THIS WITNESS?

21 MR. BOYCE: OH, YES.

22 THE COURT: ALL RIGHT, SIR. YOUR TIME WITH US IS DONE.

23 YOU’RE EXCUSED FROM FURTHER ATTENDANCE. HOWEVER, YOU’RE STILL

24 UNDER A COURT ORDER NOT TO DISCUSS YOUR TESTIMONY WITH ANYONE

25 PENDING RESOLUTION IN THE CASE. OKAY? THANKS FOR COMING IN.

26 THE WITNESS: THANKS.

27 THE COURT: ALL RIGHT.

28 LADIES AND GENTLEMEN, I WANT TO GIVE YOU A HEADS UP
3989
1 ON MONDAY. ON MONDAY WE’RE GOING TO START AT 9:30, A HALF PAST

2 9:00, SO YOU CAN TAKE A LITTLE MORE TIME COMING IN. IF YOU NEED

3 TO LEAVE A NOTE TO YOURSELF OR WHATEVER, WE’RE GOING TO GET

4 STARTED RIGHT AT 9:30. PLEASE REMEMBER THE ADMONITION OF THE

5 COURT NOT TO DISCUSS ANY OF THE EVIDENCE OR TESTIMONY AMONG

6 YOURSELVES OR WITH ANY OTHER PERSONS.

7 HAVE A PLEASANT THREE DAYS OFF.

8 YES, JUROR 16?

9 JUROR NO. 16: WE’RE STARTING LATER. ARE WE CONCLUDING

10 AT THE SAME TIME?

11 THE COURT: WE’LL ALWAYS BE CONCLUDING AT 4:30.

12 JUROR NO. 16: ALL RIGHT.

13 THE COURT: THE ONLY ADJUSTMENT WE MIGHT MAKE IS IF WE

14 START LATE FOR VERY LONG WE MIGHT TAKE LESS LUNCH, BUT YOU CAN

15 ALWAYS COUNT ON 4:30.

16 JUROR NO. 16: OKAY.

17 THE COURT: ALL RIGHT. HAVE A PLEASANT WEEKEND.

18 REMEMBER, TOMORROW YOU’RE OFF. WE’LL SEE YOU ON MONDAY AT 9:30.

19 HALF PAST 9:00.

20 (AT 4:31 P.M. THE JURY WAS EXCUSED
AND THE FOLLOWING PROCEEDINGS WERE HAD:)
21

22 THE COURT: OKAY. THE RECORD SHOULD REFLECT JURORS AND

23 ALTERNATES HAVE LEFT THE COURTROOM.

24 COUNSEL, WE’VE RECEIVED A NOTE FROM JUROR EIGHT

25 THAT HER TWIN SONS ARE GRADUATING FROM HIGH SCHOOL ON MONDAY,

26 JUNE 17TH AT 5 O’CLOCK, AND SHE’D LIKE CONSIDERATION FOR GETTING

27 OUT EARLY. SO I’M ASSUMING WE COULD BREAK AT 4 O’CLOCK ON THE

28 17TH.
3990
1 IN ADDITION TO THAT, THIS IS NOTHING OF ANY GREAT

2 SIGNIFICANCE.

3 GET THIS THING OUT OF HERE. MOVE IT SOMEWHERE

4 ELSE. NO, NO, NO, NOT ANYBODY HERE. I’M REFERRING TO THE

5 PRODUCTION FOLKS. I’M THIS KIND OF PERSON. I’VE ALREADY

6 WHACKED IT A COUPLE TIMES.

7 SO — I DON’T KNOW WHY, BUT ANOTHER THING DOES

8 CONCERN YOU FOLKS. WE RECEIVED, I SUPPOSE THERE’S — IT’S LIKE

9 IN A GOLFING CHAMPIONSHIP WHEN SOMEBODY ON TELEVISION WATCHES

10 SOMEBODY VIOLATE A RULE BY GIVING OUT THE PHONE NUMBERS. WE’VE

11 RECEIVED A TELEPHONE CALL FROM AN INDIVIDUAL WHO IS APPARENTLY

12 GLUED TO THE TELEVISION, SO TO SPEAK, WHO CANNOT MAKE OUT THE

13 CONVERSATIONS BETWEEN THE TWO OF YOU BUT CAN MAKE OUT THE FACT

14 THAT MR. BOYCE AND MR. FELDMAN ARE WHISPERING.

15 I WANT TO MAKE SURE THAT THAT — APPARENTLY, THEY

16 CAN’T MAKE OUT WHAT IS BEING SAID, BUT THAT’S GETTING TOO CLOSE

17 TO A VIOLATION OF THE COURT’S ORDER. SO I WANT TO MAKE SURE

18 THAT WHEN THESE TWO GENTLEMEN ARE TALKING TO ONE ANOTHER, THEIR

19 MICROPHONE IS DEAD AS A DOORNAIL.

20 AUDIO TECH: YES, SIR, IT IS.

21 THE COURT: OKAY.

22 NOW, ARE WE GOING TO NEED TO GET TOGETHER TOMORROW

23 FOR ANY REASON OR ARE WE GOING TO BE ABLE TO TAKE — JUST DEAL

24 WITH OTHER THINGS?

25 MR. FELDMAN: YOUR HONOR, I DON’T HAVE AN ADDRESS TO

26 TOMORROW. THERE IS AN ISSUE ON MONDAY MORNING THAT AROSE OVER

27 NOON THAT I WOULD LIKE TO ADDRESS THE COURT ON IF THIS IS AN

28 APPROPRIATE TIME.
3991
1 THE COURT: SURE. WHILE WE’VE GOT THE TIME, IF IT AVOIDS

2 HAVING TO BRING EVERYBODY IN TOMORROW.

3 MR. FELDMAN: THE DEFENSE ISSUED A SUBPOENA FOR A WITNESS

4 WHO IS — I PREVIOUSLY REFERRED TO AS DANIELLE L., WHO I THINK,

5 BUT I DON’T RECALL, IS ON THE PROSECUTION’S WITNESS LIST.

6 THE WITNESS’ PARENT IS INDICATING THAT HE WANTS TO

7 NEGOTIATE WITH US BUT WE CAN’T NEGOTIATE, AND WE BASICALLY HAVE

8 TAKEN THE POSITION THERE’S A SUBPOENA OUT. THE WITNESS NEEDS TO

9 SHOW UP BECAUSE THE PARENT WON’T PERMIT US TO PLACE THE WITNESS

10 ON CALL. THAT MEANS — THE SUBPOENA READS FOR MONDAY MORNING AT

11 9 O’CLOCK. SO I WOULD ASK THAT MR. — I’VE ALREADY INDICATED,

12 YOUR HONOR, YOU KNOW I HAVE A PROBLEM IN SCHEDULING, IF AT LEAST

13 FOR PURPOSES PRESERVING JURISDICTION OVER THIS WITNESS, AT LEAST

14 SESSION BE CONVENED OR IN SOME MANNER WE PRESERVE JURISDICTION

15 ON THE WITNESS. I’M JUST CONCERNED ABOUT LOSING THE WITNESS.

16 THE COURT: WELL, THAT — I MEAN, THAT IS NOT GOING TO BE

17 DIFFICULT TO WORK OUT BECAUSE I’LL JUST HAVE EVERYBODY SHOW UP

18 AT 9 O’CLOCK AND YOU CAN JUST HAVE MR. BOYCE REPRESENTING YOU

19 AND WE’LL BRING THE WITNESS IN, THEN FIND OUT WHAT THE PROBLEM

20 IS AND ORDER THE PERSON BACK.

21 MR. FELDMAN: THE WITNESS IS A JUVENILE. THE PARENT

22 KNOWS ABOUT IT. WE DOTTED OUR I’S AND CROSSED OUR T’S. THE

23 PEOPLE HAVE SENT A LETTER.

24 MR. DUSEK: IF WE CONTACT THE THIRD PARTY, THE THIRD

25 PARTY WILL MAKE SURE THE WITNESS SHOWS UP.

26 MR. FELDMAN: WE’VE TRIED. WE COULDN’T GET SATISFACTION,

27 I DON’T KNOW. COULD I? —

28 THE COURT: YES.
3992
1 MR. FELDMAN: I’LL TRY THE THIRD PARTY AND CALL THE COURT

2 IF WE GET SATISFACTION. DOES THAT SOUND REASONABLE?

3 THE COURT: WHAT I WOULD SUGGEST, MR. FELDMAN, IN ORDER

4 TO INSURE THAT IF YOU DON’T WE ARE ALERTED TO IT IS CALL PEGGY

5 TOMORROW SO I CAN HAVE MIKE OR ONE OF THE BAILIFFS TO BE ON THE

6 LOOKOUT FOR THE PERSON ON MONDAY AND BASICALLY HOLD ON TO HIM

7 UNTIL WE CAN GET IN SESSION. THAT BEING THE CASE, LET’S MAKE IT

8 9:15 MONDAY MORNING FOR ANY LOOSE ENDS THAT MIGHT ARISE,

9 INCLUDING THIS ONE.

10 MR. FELDMAN: YES, YOUR HONOR. THANK YOU.

11 THE COURT: THERE’S NO OTHER REASON TO GET TOGETHER

12 TOMORROW THEN?

13 MR. DUSEK: NO.

14 MR. FELDMAN: NO. THANK YOU.

15 THE COURT: ALL RIGHT. WE’LL BE IN RECESS UNTIL MONDAY

16 AT 9:15.

17

18

19 (AT 4:35 P.M. AN ADJOURNMENT WAS TAKEN
UNTIL 9:15 A.M. MONDAY, JUNE 10, 2002.)
20
–O0O–
21

22

23

24

25

26

27

28

12 - Day 4- June 10th 2002 - Transcript criminal trial David Westerfield
10 - Day 3- June 6th 2002 - Transcript criminal trial David Westerfield