13 – Day 4- June 10th 2002 – Transcript criminal trial David Westerfield

TRIAL DAY 4 – PART 2
SAN DIEGO, CALIFORNIA, MONDAY, JUNE 10, 2002, (morning 2)


WITNESSES:
Denise Kemal, Richard Brady


4058
1 THE COURT: WELCOME BACK, LADIES AND GENTLEMEN.


2 THE JURY COMMISSIONER’S CALLED AND ALERTED US TO

3 THE FACT THAT, I’M NOT SURE, BUT ONE OF YOU HAS BROUGHT IN FOUR

4 DOZEN KRISPY KREME DONUTS, IS THAT RIGHT? IS THAT AN ACCURATE

5 STATEMENT?

6 WERE THEY FOR YOUR COLLEAGUES?

7 ALTERNATE JUROR NO. 13: YEAH.


8 THE COURT: ALL RIGHT. YOU’RE GOING TO ARRANGE TO

9 DISTRIBUTE THEM?

10 ALTERNATE JUROR NO. 13: THEY LEFT.


11 THE COURT: THEY’RE GONE?

12 ALTERNATE JUROR NO. 13: WELL, NOT ALL FOUR DOZEN.


13 THE COURT: OKAY. YOU KNOW, THEY ASKED ME WHAT I SHOULD

14 DO WITH THEM AND I THOUGHT I WOULD JUST LEAVE IT UP TO ALL OF

15 YOU. SO YOU ALL LOOK CONTENT FROM YOUR BREAK, SO I GUESS

16 THEY’VE BEEN WELL TAKEN CARE OF. WELL, THANK YOU, JUROR 13, I’M

17 SURE.


18 OKAY. MR. FELDMAN YOU MAY CONTINUE.


19

20 BY MR. FELDMAN:

21 Q. JUST FOR A MOMENT, I WANT TO REDIRECT YOU TO THE

22 25TH OF JANUARY.


23 A. OKAY.


24 Q. ON THE 25TH, THE WOMEN WERE DANCING IN A VERY

25 PROVOCATIVE MANNER, ISN’T THAT TRUE? YOU ALL?

26 A. YES.


27 Q. SO PROVOCATIVE A MANNER THAT ON THE 1ST, WHEN YOU

28 WENT BACK, SOME GUY CAME UP TO YOU AND MENTIONED IT, ISN’T THAT
4059
1 TRUE?

2 A. YES.


3 Q. AND THIS GUY WAS BOTHERING YOU, ISN’T THAT RIGHT?

4 A. YES.


5 Q. BUT YOU CONTINUED ON THE 1ST TO BASICALLY ENGAGE IN

6 THE SAME KIND OF PROVOCATIVE BEHAVIOR THAT YOU HAD ENGAGED IN ON

7 THE 25TH?

8 A. NO.


9 Q. WAS BARBARA ENGAGING IN THE SAME KIND OF BEHAVIOR?

10 A. NO.


11 Q. ISN’T IT TRUE THAT YOU TOLD DETECTIVES THAT, IN

12 FACT, BARBARA — BARBARA WAS PLAYING PROVOCATIVE POOL WITH

13 WHOMEVER SHE WAS PLAYING?

14 A. THEY HIT IT OFF. THEY — THEY SEEMED TO HAVE HIT

15 IT OFF.


16 Q. WHEN YOU TOLD THE DETECTIVES THAT BARBARA WAS

17 PLAYING PROVOCATIVE POOL, WHAT DID YOU MEAN TO COMMUNICATE BY

18 YOUR USE OF THE WORD “PROVOCATIVE”?

19 A. I DON’T BELIEVE THAT I SAID IT IN THOSE WORDS, BUT

20 I BELIEVE THAT SHE WAS FLIRTATIOUS. THEY WERE.


21 Q. WHO IS “THEY”?

22 A. BARBARA AND KEITH.


23 Q. THEY WERE — WHEN YOU SAY “FLIRTATIOUS,” WHAT DO

24 YOU MEAN TO COMMUNICATE?

25 A. JUST FLIRTING, FRIENDLY.


26 Q. SEXUAL INNUENDO?

27 A. I DIDN’T HEAR THE CONVERSATION.


28 Q. COULD YOU SEE IT?
4060
1 A. THE DEMEANOR WAS FLIRTATIOUS.


2 Q. AND I’M ASKING YOU, WITH REGARD TO THE DEMEANOR

3 WERE THERE SEXUAL INNUENDOS THAT YOU COULD SEE?

4 MR. DUSEK: OBJECTION, VAGUE.


5 THE COURT: SUSTAINED.


6 YOU NEED NOT ANSWER, MA’AM.


7

8 BY MR. FELDMAN:

9 Q. DURING YOUR FIRST SERIES OF INTERVIEWS — I’M GOING

10 TO GO TO THE 1ST, BUT BEFORE I GET BACK TO THE 1ST, DURING YOUR

11 FIRST SERIES OF INTERVIEWS WITH THE POLICE, YOU NEVER ONCE

12 MENTIONED ANYTHING ABOUT SEEING DAVID WESTERFIELD AT THE BAR ON

13 THE 25TH, ISN’T THAT TRUE?

14 A. THAT’S TRUE.


15 Q. NOR DID YOU EVER ONCE MENTION SEEING DAVID

16 WESTERFIELD AT THE BAR ON THE 1ST DURING THE FIRST SERIES OF

17 INTERVIEWS BEFORE THE MEDIA HAD FOCUSED ON MR. WESTERFIELD AS A

18 SUSPECT?

19 A. NO, I DID.


20 Q. TO WHOM?

21 A. I BELIEVE IT WAS FRANK.


22 Q. WHEN YOU SAY “FRANK” YOU MEAN GRBAC; IS THAT RIGHT?

23 A. YES.


24 Q. SO IT’S YOUR TESTIMONY TODAY THAT YOU TOLD FRANK

25 GRBAC THAT DAVID WESTERFIELD WAS AT THE BAR BY NAME ON THE 1ST

26 AND THAT HE MADE SOME REMARK ABOUT — WELL, YOU TOLD THAT TO

27 GRBAC, RIGHT?

28 A. I PROBABLY DIDN’T SAY “DAVID WESTERFIELD” BECAUSE I
4061
1 DIDN’T KNOW HIS NAME, BUT DAVE THE NEIGHBOR, POSSIBLY.


2 Q. AND DID YOU TELL GRBAC ON THE 3RD THAT YOU HAD SEEN

3 WESTERFIELD ON THE 2ND?

4 A. YES, I DID.


5 Q. AND DID YOU TELL GRBAC ON THE 3RD THAT MR.


6 WESTERFIELD HAD SAID SOMETHING ABOUT LEAVING AT 9 O’CLOCK AT THE

7 BAR ON THE 1ST?

8 A. YES, I DID.


9 Q. AND THAT’S SOMETHING YOU READ IN THE NOTES THAT YOU

10 REVIEWED BEFORE COMING TO COURT TODAY?

11 A. NO.


12 Q. ARE YOU TELLING US THAT YOUR RECOLLECTION OF THAT

13 STATEMENT IS BASED ON YOUR MEMORY AS OPPOSED TO SOMETHING YOU’VE

14 READ?

15 A. I REMEMBERED THE NEXT DAY. I DIDN’T — THERE’S

16 NOTHING THAT I DON’T REMEMBER ABOUT THAT THE 2ND.


17 Q. SO, ARE YOU A PERSON, DO YOU FEEL, THAT YOUR MEMORY

18 GETS BETTER WITH THE PASSAGE OF TIME?

19 A. WHATEVER I SAY IS WHAT I REMEMBER, AND I HAD A

20 CONVERSATION WITH HIM ON THE 2ND.


21 Q. LET ME ASK YOU THE SAME QUESTION.


22 DO YOU FEEL THAT YOUR MEMORY GETS BETTER AS TIME

23 PASSES?

24 A. YES.


25 Q. AND HOW IS IT THAT YOU FEEL OR WHAT IS IT THAT YOU

26 DO THAT CAUSES YOUR MEMORY TO GET BETTER WITH THE PASSAGE OF

27 TIME?

28 MR. DUSEK: OBJECTION, ASSUMES FACTS NOT IN EVIDENCE.
4062
1 THE COURT: AT THIS POINT IT’S GETTING PRETTY FAR AFIELD,

2 MR. FELDMAN.


3 JUROR NO. 8: I KNOW.


4 THE COURT: SUSTAINED. LET’S MOVE ON.


5

6 BY MR. FELDMAN:

7 Q. YOU WERE INTERVIEWED BY A DETECTIVE NAMED FISHER

8 DOWNTOWN, DO YOU RECALL THAT? MAYBE IT MIGHT HAVE BEEN AT

9 NORTHEASTERN, MIGHT HAVE BEEN DOWNTOWN?

10 A. DOWNTOWN, I REMEMBER HERGENROETHER.


11 Q. HERGENROETHER WAS A LATER INTERVIEW, DO YOU RECALL

12 THAT?

13 A. YES.


14 Q. HERGENROETHER INTERVIEW, THAT WAS AROUND THE 24TH

15 OR THE 27TH, DO YOU RECALL THAT?

16 A. YES.


17 Q. AND THAT WAS VIDEO-TAPED, DO YOU RECALL THAT?

18 A. YES.


19 Q. DO YOU RECALL ASKING HERGENROETHER ABOUT THE FACT

20 THAT YOU WERE BEING VIDEO-TAPED, CORRECT?

21 A. YES.


22 Q. AND I WANT TO DIRECT YOUR ATTENTION TO EARLIER THAN

23 HERGENROETHER, ANOTHER INTERVIEW YOU HAD WITH ANOTHER OFFICER

24 NAMED FISHER, OKAY?

25 A. OKAY.


26 Q. DURING YOUR COMMUNICATION WITH FISHER, WHICH I

27 BELIEVE WAS ON FEBRUARY THE 3RD, YOU NEVER MENTIONED THAT DAVID

28 WESTERFIELD HAD SAID ANYTHING ABOUT LEAVING AT 9 O’CLOCK, ISN’T
4063
1 THAT TRUE?

2 A. I DON’T RECALL EVER SAYING THAT DAVE SAID THAT HE

3 LEFT AT — AT THE BAR. NOW YOU’RE CONFUSING ME. I SPOKE TO HIM

4 ON THE 2ND.


5 Q. I’M SORRY. WHEN YOU SAY “HIM,” WHO ARE YOU

6 REFERRING TO?

7 A. DAVE.


8 Q. WESTERFIELD?

9 A. YES.


10 Q. YOU TALKED TO WESTERFIELD ON THE 2ND ON THE STREET?

11 A. YES.


12 Q. OUTSIDE SABRE SPRINGS, RIGHT?

13 A. ACROSS THE STREET FROM HIS HOUSE.


14 Q. AND IT’S YOUR TESTIMONY TODAY THAT IN THAT

15 COMMUNICATION THAT YOU HAD —

16 A. YES, IT WAS THEN THAT HE SAID — I’M SORRY.


17 Q. NO, NOT A PROBLEM. IT WAS THEN ON THE 2ND THEN, AS

18 YOU RECOLLECT IT, THAT MR. WESTERFIELD SAID HE HAD LEFT THE BAR

19 AROUND 9:00?

20 A. YES.


21 Q. BUT YOU NEVER TOLD THAT TO THE POLICE, DID YOU?

22 A. I BELIEVE I TOLD FRANK THAT. I TOLD ONE OF THEM.


23 IT COULD HAVE BEEN HERGENROETHER OR —

24 Q. PARDON?

25 A. — OR FRANK. I’M NOT SURE WHICH ONE I TOLD THAT

26 TO.


27 Q. WHEN YOU TALKED TO THIS DETECTIVE FISHER, DID YOU

28 EVER MENTION ANYTHING TO HIM ABOUT SEEING MR. WESTERFIELD ON THE
4064
1 1ST?

2 A. TO BE QUITE HONEST, I REMEMBER MY INTERVIEW WITH

3 FRANK, HERGENROETHER, BUT I’M NOT RECOLLECTING FISHER.


4 Q. WHEN YOU GOT TO DAD’S ON FEBRUARY THE 1ST THERE

5 WERE STILL KIDS AROUND; IS THAT CORRECT, AT DAD’S?

6 A. SORRY?

7 Q. WHEN YOU GOT TO DAD’S ON FEBRUARY THE 1ST, THERE

8 WERE KIDS AROUND AT DAD’S?

9 A. YES.


10 Q. THAT WAS A LITTLE BIT — I DON’T KNOW, THAT CAUSED

11 YOU SOME CONCERN. IS THAT A FAIR STATEMENT?

12 A. YES, OUT OF THE ORDINARY.


13 Q. BECAUSE?

14 A. BECAUSE IT WAS A BAR AND IT WAS GETTING LATE.


15 Q. SO WHEN THE KIDS WERE THERE, WAS IT THEN THAT YOU

16 STARTED TO HAVE ANY ALCOHOL?

17 A. SITTING AT THE BAR, YES.


18 Q. IN LOOKING AT THE CHART BEHIND YOU, SPECIFICALLY

19 COURT EXHIBIT 31, DO YOU SEE WHERE ON THIS CHART THE KIDS WERE?

20 A. YES.

21 Q. CAN YOU PLEASE JUST USE THE POINTER AND POINT IT

22 OUT?

23 A. THEY’RE ON THE DANCE FLOOR. THE TABLES AREN’T

24 THERE. THEY TAKE THE TABLES DOWN.


25 Q. I’M SORRY, I NEED TO STOP YOU. JUST FOR THE

26 RECORD, WHAT YOU JUST DID, I JUST WANT TO CONFIRM WHAT YOU DID,

27 OKAY, MA’AM? YOU POINTED TO AN AREA IN COURT EXHIBIT 31

28 PHOTOGRAPH “B”, AND MORE SPECIFICALLY YOU POINTED TO AN AREA
4065
1 ABOUT MID PHOTOGRAPH, IS THAT RIGHT?

2 A. YES.


3 Q. THANK YOU. COULD YOU PLEASE CONTINUE?

4 A. THE TABLES AREN’T THERE. THERE’S MUSIC BUT IT’S

5 NOT THE BAND, IT’S JUST REGULAR MUSIC. AND THERE WERE KIDS

6 PLAYING AND DANCING ON THE FLOOR THERE. THERE MIGHT HAVE BEEN A

7 TABLE OR TWO OVER HERE BUT MOST OF IT HAD BEEN CLEARED OFF.


8 Q. I’M SORRY. YOU JUST SAID THERE MIGHT HAVE BEEN A

9 TABLE OR TWO OVER HERE, AND YOU MOVED THE POINTER TO AN AREA

10 CLOSE TO WHERE?

11 A. IN THE CORNER OVER HERE, YEAH.


12 Q. I’M SORRY. WHEN YOU USE THE WORD “HERE” I NEED TO

13 JUST DESCRIBE FOR THE RECORD —

14 A. OKAY.


15 Q. YOU’RE POINTING TO COURT EXHIBIT 31 PHOTO “B” TO AN

16 AREA JUST ABOUT WHERE YOU GOT THIS CIRCLE DRAWN AND TO THE LEFT

17 PART OF THE CIRCLE, IS THAT RIGHT?

18 A. RIGHT, ON THE DANCE FLOOR. I’M NOT POSITIVE OF

19 THAT.


20 Q. OKAY.


21 A. BUT THEY WERE DANCING ON THIS FLOOR AND JUST

22 PLAYING AND —

23 Q. WHEN YOU SAY “THEY” YOU MEAN THE KIDS?

24 A. YES.


25 Q. OKAY.


26 SO YOU WERE GOING TO DAD’S EXPECTING, I GUESS, MORE

27 OF AN ADULT CROWD, AND TO YOUR SURPRISE THERE WERE STILL

28 FAMILIES THERE?
4066
1 A. YES, BUT WE WERE EARLY. WE DID GET THERE EARLY

2 SO —

3 Q. WHEN YOU SAY EARLY, ABOUT WHAT TIME DO YOU RECALL

4 GETTING THERE?

5 A. ABOUT 8:15, 8:20.


6 Q. CAN I INFER THEN FROM YOUR ANSWER — IS IT FAIR TO

7 INFER FROM YOUR ANSWER THAT IT WAS ALSO THE CASE THAT YOU

8 STARTED TO GET HIGH EARLIER THAN USUAL?

9 MR. DUSEK: OBJECTION, VAGUE.


10 THE COURT: DO YOU UNDERSTAND THE QUESTION, MA’AM?

11 THE WITNESS: NO.


12 THE COURT: SUSTAINED.


13

14 BY MR. FELDMAN:

15 Q. BASED ON YOUR ANSWER, DO YOU USUALLY SMOKE

16 MARIJUANA BEFORE 8:30 IN THE EVENING?

17 MR. DUSEK: OBJECTION, IRRELEVANT.


18 THE COURT: SUSTAINED.


19

20 BY MR. FELDMAN:

21 Q. SPECIFICALLY DIRECTING YOUR ATTENTION TO THE 2ND —

22 I’M SORRY, THE 1ST OF FEBRUARY, WAS IT UNUSUAL FOR YOU TO SMOKE

23 MARIJUANA AS EARLY AS YOU SMOKED ON THAT DAY?

24 MR. DUSEK: OBJECTION, IRRELEVANT, 352.


25 THE COURT: SUSTAINED. SUSTAINED.


26 YOU NEED NOT ANSWER, MA’AM.


27 ///

28 BY MR. FELDMAN:
4067
1 Q. WHEN YOU WERE AT THE BAR, DO YOU RECALL WHO

2 PURCHASED THE FIRST ROUND OF DRINKS?

3 A. YES, DAVE DID.


4 Q. AND HOW MANY DRINKS WERE PURCHASED, IF YOU RECALL?

5 A. ONE.


6 Q. ONE FOR JUST FOR YOU?

7 A. OH, HE PURCHASED THREE TOTAL, ONE TIME.


8 Q. I’M SORRY?

9 A. THREE TOTAL.


10 Q. ONE FOR YOU?

11 A. ONE FOR BARBARA AND ONE FOR BRENDA.


12 Q. ALL RIGHT.


13 DO YOU RECALL WHAT KIND OF DRINKS THEY WERE?

14 A. BRENDA AND I HAD A VODKA CRANBERRY AND BARBARA

15 MIGHT HAVE HAD EITHER A VODKA CRANBERRY OR A VODKA TONIC, I’M

16 NOT SURE.


17 Q. ALL RIGHT.


18 DO YOU RECALL WHETHER OR NOT MR. WESTERFIELD HAD

19 ANYTHING — WHAT APPEARED TO BE A DRINK WITH HIM AT OR NEAR THE

20 TIME HE PURCHASED THE DRINKS FOR YOU ALL?

21 A. I DON’T RECALL.


22 Q. DO YOU RECALL WHETHER OR NOT ANYBODY WAS SEATED AT

23 THE BAR NEAR HIM OR NEXT TO HIM?

24 A. HE WASN’T SEATED AT THE BAR.


25 Q. OKAY. WHERE WAS HE?

26 A. HE WAS STANDING AT THE END OF THE BAR.


27 Q. WHEN YOU SAY “END OF THE BAR,” I’D LIKE YOU TO, IF

28 YOU COULD, PLEASE LOOK AT THE EXHIBIT BEHIND YOU. IT’S 31, AND
4068
1 YOU KNOW, CAN YOU SHOW US, WHEN YOU SAY “THE END OF THE BAR”

2 WHAT YOU MEAN — WHERE YOU MEAN TO COMMUNICATE?

3 A. HE WAS STANDING HERE WHEN WE FIRST —

4 Q. I’M SORRY. WHEN YOU SAY “HERE” COULD YOU DESCRIBE

5 IT, PLEASE?

6 A. AT THE END OF THE BAR. AND THEN ONCE WE SAT DOWN,

7 HE CAME OVER AND BOUGHT US A DRINK. THESE THREE SEATS, ONE,

8 TWO, THREE ARE WHERE WE SAT, AND HE STOOD RIGHT HERE BEHIND THIS

9 CHAIR, THE FIRST CHAIR, AND BOUGHT A DRINK.


10 Q. ALL OF YOUR ANSWERS HAVE SPECIFICALLY RELATED TO

11 COURT EXHIBIT 31 PHOTOGRAPH “B” AND THE LEFT SIDE OF PHOTOGRAPH

12 “B” ; IS THAT RIGHT, MA’AM?

13 A. THAT’S RIGHT.


14 Q. THANK YOU.


15 DID THERE COME A TIME WHEN OTHER DRINKS WERE

16 PURCHASED FOR YOU AND YOUR FRIENDS?

17 A. YES, WHEN WE WERE PLAYING POOL.


18 Q. SO IS IT THE CASE THAT YOU ONLY HAD ONE DRINK

19 BETWEEN THE TIME YOU ARRIVED AND THE TIME YOU STARTED TO PLAY

20 POOL?

21 A. ONE OR TWO, I’M NOT POSITIVE.


22 Q. SO IT COULD HAVE BEEN TWO DRINKS, IS THAT WHAT

23 YOU’RE TELLING US?

24 A. IT COULD HAVE BEEN TWO, YES.


25 Q. AND IF IT WAS TWO, WHAT WOULD THE SECOND DRINK HAVE

26 BEEN?

27 MR. DUSEK: OBJECTION, SPECULATION UNLESS IT WAS.


28 THE COURT: AS TO YOURS AND ANY PERSONAL KNOWLEDGE OF THE
4069
1 OTHERS, YOU MAY ANSWER.


2 THE WITNESS: THE SAME THING, VODKA CRANBERRY.


3

4 BY MR. FELDMAN:

5 Q. ALL RIGHT.


6 DO YOU RECALL WHETHER OR NOT — WERE THE DRINKS

7 STRONG, DO YOU RECALL?

8 A. NO, NORMAL.


9 Q. NORMAL, IS THAT WHAT YOU SAID?

10 A. YES.


11 Q. AND IS IT THE CASE THAT YOU MET SOMEBODY THAT WAS A

12 FRIEND OF MR. WESTERFIELD’S THAT NIGHT, DIDN’T YOU, NAMED JEFF?

13 A. YES, BUT IT DIDN’T APPEAR THAT HE WAS FRIENDS OF

14 DAVE’S OR GARRY’S.


15 Q. ALL RIGHT.


16 BUT YOU RECALL AT LEAST BEING WITH SOMEONE NAMED

17 JEFF, IS THAT RIGHT, THAT EVENING?

18 A. YES. I ASKED HIM TO PLAY POOL AND THEN INTRODUCED

19 HIM TO GARRY AND BAR — AND BRENDA.


20 Q. AND DIDN’T JEFF BUY YOU A DRINK?

21 A. YES, HE DID.


22 Q. IN FACT, JEFF BOUGHT SHOTS FOR THE TABLES, IS THAT

23 RIGHT?

24 A. YES, HE DID.


25 Q. AND AFTER THAT, IS IT THE CASE THAT RICH BOUGHT

26 SHOTS?

27 A. NO. RICH BOUGHT A SHOT FOR BRENDA, KEITH AND

28 BARBARA. AND I KIND OF MADE A JOKE TO HIM THAT OH, YOU BUY THEM
4070
1 A DRINK AND NOT ME. I WAS JUST KIND OF JOKING.


2 Q. OKAY.


3 A. SO AT THAT POINT — I ALWAYS FORGET HIS NAME, THE

4 BLOND GUY.


5 Q. DID YOU SAY THE BLOND GUY OR THE BLACK GUY?

6 A. THE BLOND GUY. I FORGET HIS NAME ALL THE TIME.


7 Q. GARRY?

8 A. NO. GARRY’S THE SHORT ITALIAN GUY.


9 Q. THERE’S KEITH. DOES THAT NAME RING A BELL?

10 A. NO. THE ONE WHO WAS SUPPOSEDLY DAVE’S FRIEND. HE

11 BOUGHT ME A SHOT AFTER I GAVE HIM SOME — I JUST GAVE THEM A

12 HARD TIME THAT HE BOUGHT THEM A DRINK AND NOT ME.


13 Q. SO ULTIMATELY YOU GOT EVENED UP?

14 A. YEAH.


15 Q. AND AFTER YOU GUYS GOT EVENED UP, IT WAS THEN THAT

16 YOU DECIDED TO GO OUTSIDE AND HAVE SOMETHING TO SMOKE?

17 A. AFTER WE WERE DONE PLAYING POOL, YES.


18 Q. ABOUT WHAT TIME WAS IT THAT YOU FINISHED PLAYING

19 POOL?

20 A. I’D SAY ABOUT 11 O’CLOCK.


21 Q. SO SOMEWHERE ABOUT 11 O’CLOCK, YOU, BRENDA AND

22 DENISE WENT OUT INTO THE PARKING LOT, IS THAT RIGHT?

23 A. YES, BRENDA, BARBARA —

24 Q. I’M SORRY — YOU, BARBARA AND BRENDA?

25 A. — AND RICH AND KEITH.


26 Q. OH, SO THE FIVE OF YOU WENT TOGETHER?

27 A. YEAH, WE WENT OUTSIDE TO THE CAR.


28 Q. AND THE LADIES GOT INTO THE CAR, IS THAT RIGHT?
4071
1 A. YES.


2 Q. AND BRENDA WAS IN THE DRIVER’S SIDE, RIGHT?

3 A. YES.


4 Q. AND YOU WERE IN THE MIDDLE?

5 A. UH-HUH.


6 Q. AND BARBARA WAS, I GUESS, IN THE PASSENGER SIDE,

7 RIGHT?

8 A. YES.


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

10 A. YES.


11 Q. AND THERE WAS MUSIC THAT GOT TURNED ON, DIDN’T IT?

12 A. YES.


13 Q. AND IT WAS REALLY LOUD MUSIC, WASN’T IT?

14 A. IT WAS LOUD BUT IT WASN’T TOO LOUD. I MEAN, WE

15 WERE TALKING AND SINGING, SO IT WASN’T LOUD ENOUGH THAT WE

16 WOULDN’T BE ABLE TO HEAR EACH OTHER TALK.


17 Q. BUT IT WAS LOUD ENOUGH TO GET YOU ALL TO BE

18 BASICALLY DANCING AND SINGING IN THE CAR, RIGHT?

19 A. WE WERE SINGING.


20 Q. AND SOMETHING ABOUT MACY GRAY?

21 A. THAT’S WHO WE WERE SINGING.


22 Q. I’M SORRY, I’M OLD. WHO IS MACY GRAY?

23 A. SHE’S JUST A SINGER.


24 Q. IS IT ROCK MUSIC? IS IT COWBOY MUSIC?

25 A. NO. IT’S — I DON’T KNOW. IT’S —

26 Q. UPBEAT? IS IT UPBEAT OR IS IT SLOW, HOW’S THAT?

27 A. IT’S UPBEAT.


28 Q. SO IS IT ALSO THE CASE THAT YOU LADIES WERE IN THE
4072
1 FRONT SEAT SMOKING THE MARIJUANA, LISTENING TO MACY GRAY, AND

2 MOVING YOUR HANDS DANCING?

3 A. WE HAD ONE JOINT, WHICH WAS THE SAME JOINT WE

4 SMOKED PRIOR TO LEAVING BRENDA’S. WE PASSED IT AROUND AND THEN

5 WE PUT IT OUT, AND WE WERE SINGING. I DON’T KNOW ABOUT THE

6 DANCING BIT, NO. WE WERE — WE WERE SINGING AND TALKING OUT THE

7 WINDOWS TO RICH AND KEITH, BUT WE WEREN’T DANCING AROUND. WE

8 WERE SITTING IN THE CAR.


9 Q. WAS BARBARA KIND OF CONNECTED TO KEITH IN ANY

10 PARTICULAR MANNER?

11 A. THEY WERE TALKING OUTSIDE THE WINDOW.


12 Q. WEREN’T THEY DOING MORE THAN TALKING OUTSIDE THE

13 WINDOW?

14 A. I DON’T RECALL SEEING THEM DO ANYTHING BUT TALK.


15 Q. YOU HAVE BEEN ASKED BEFORE WHETHER OR NOT YOU SAW

16 THEM KISSING, THAT’S CORRECT, ISN’T IT?

17 A. AND I DON’T RECALL SEEING THEM KISS.


18 Q. AND BY YOUR ANSWER YOU DON’T MEAN TO SAY THEY

19 WEREN’T KISSING. YOU MEAN TO COMMUNICATE YOU DON’T REMEMBER

20 WHETHER OR NOT THEY WERE KISSING, IS THAT A FAIR STATEMENT?

21 A. NO. I DIDN’T SEE THEM KISS.


22 Q. OKAY. SO IT’S YOUR TESTIMONY THEY DID NOT KISS?

23 A. NOT TO MY KNOWLEDGE.


24 Q. AND YOU WERE RIGHT NEXT TO BARBARA, RIGHT?

25 A. YES. BUT I WAS IN THE MIDDLE HUMP, AND I WAS

26 MAINLY MORE TALKING WITH BRENDA AND RICH.


27 Q. WHAT WERE BRENDA AND RICH DOING?

28 A. TALKING.
4073
1 Q. AND DID BRENDA TELL YOU THAT SHE HAD INVITED RICH

2 AND KEITH TO THE BAR THAT NIGHT?

3 A. NO.


4 Q. DID SHE TELL YOU THAT SHE HAD INVITED BILL LIBBY TO

5 THE BAR THAT NIGHT?

6 MR. DUSEK: OBJECTION, HEARSAY.


7 THE COURT: OVERRULED.


8 YOU CAN ANSWER WHETHER OR NOT YOU KNOW.


9

10 BY MR. FELDMAN:

11 Q. DO YOU KNOW LIBBY?

12 A. YES, I DO.


13 Q. WAS HE THERE THAT NIGHT?

14 A. NO.


15 Q. DID YOU KNOW RICH AND KEITH BEFORE THE 1ST OF

16 FEBRUARY?

17 A. I KNEW RICH AND I MET KEITH THAT NIGHT.


18 Q. AND HAD YOU MET RICH AT, FOR INSTANCE, A HALLOWEEN

19 PARTY?

20 A. YES. I MET — I’M NOT SURE IF IT WAS A HALLOWEEN

21 PARTY BUT HE HAS BEEN TO BRENDA’S WHEN I WAS THERE. I DON’T

22 KNOW IF IT WAS THE HALLOWEEN PARTY OR NOT.


23 Q. WELL, WERE BRENDA AND DAMON A FAIRLY SOCIABLE —

24 SOCIAL COUPLE?

25 MR. DUSEK: OBJECTION, VAGUE.


26 THE COURT: SUSTAINED. YOU NEED NOT ANSWER.


27 ///

28 BY MR. FELDMAN:
4074
1 Q. HAD YOU GONE TO THE VAN DAM’S RESIDENCE WITH YOUR

2 HUSBAND OR OTHER FRIENDS AND MET OTHER PEOPLE AT THE VAN DAM

3 RESIDENCE?

4 MR. DUSEK: OBJECTION, IRRELEVANT, 352.


5 THE COURT: SUSTAINED.


6 YOU NEED NOT ANSWER, MA’AM.


7 MR. FELDMAN: YOUR HONOR, AT SOME POINT LATER I’D LIKE TO

8 ADDRESS THAT.


9 THE COURT: YOU’LL BE WELCOME AT THE BREAK.


10 MR. FELDMAN: LATER, THANK YOU.


11 Q. HOW MUCH TIME WOULD YOU ESTIMATE YOU SPENT IN THE

12 CAR OR THE EXCURSION OR WHATEVER BEFORE YOU WENT BACK INSIDE THE

13 BAR?

14 A. NOT LONG, ABOUT 10 MINUTES.


15 Q. AFTER THAT PERIOD OF TIME FINISHED WHERE DID YOU

16 GO?

17 A. INSIDE BACK TO THE BAR.


18 Q. DID YOU HAVE ANYTHING ELSE TO DRINK?

19 A. YES.


20 Q. AND WHAT WAS THAT?

21 A. SAME THING, VODKA CRANBERRY, AND I KNOW I HAD A BIG

22 GLASS OF WATER.


23 Q. AT SOME POINT DIDN’T SOMEBODY BUY SHOTS OF TEQUILA?

24 A. THAT WAS AT THE POOL TABLE.


25 Q. SO, IN ADDITION TO THE VODKA CRANBERRIES YOU WERE

26 DRINKING, YOU ALSO HAD A SHOT OF TEQUILA; IS THAT CORRECT?

27 A. YES, AND WATER IN BETWEEN.


28 Q. AND MARIJUANA?
4075
1 A. COUPLE OF DRAGS.


2 Q. AND THE BEER THAT YOU HAD EARLIER?

3 A. YEAH, HALF A BEER, AND A RED BULL AT THE BAR BUT

4 THAT DOESN’T — I DON’T THINK THAT HAS ALCOHOL IN IT.


5 Q. NOW, IS IT YOUR PRESENT RECOLLECTION THAT MR.


6 WESTERFIELD LEFT BUT ONLY AFTER THE BAND STARTED TO PLAY?

7 A. YES.


8 Q. AND WHEN YOU STOPPED PLAYING POOL YOU DON’T RECALL

9 SEEING MR. WESTERFIELD, IS THAT THE CASE?

10 A. YES.


11 Q. BUT HE DID APPEAR AT THE BAR AFTER THAT CLOSER TO

12 MIDNIGHT, ISN’T THAT TRUE?

13 A. YES.


14 Q. AND IS IT THE CASE THAT THERE REALLY WASN’T A POINT

15 THAT WHOLE NIGHT WHEN YOU WERE WITHOUT A DRINK?

16 A. WE DRANK WATER THROUGHOUT THE NIGHT HERE AND THERE

17 BUT, NO.


18 Q. I’M SORRY?

19 A. THERE WASN’T A POINT WHERE I DIDN’T HAVE A DRINK.


20 Q. DID YOU TELL DETECTIVE HERGENROETHER THAT THERE WAS

21 NO POINT THAT NIGHT THAT YOU DID NOT HAVE A DRINK?

22 A. YES.


23 Q. YOU TOLD ME EARLIER ON CROSS THAT SOME GUY THERE

24 WAS — HAD MENTIONED THAT HE HAD SEEN YOU ALL THE WEEK BEFORE

25 AND WAS KIND OF BOTHERSOME TO YOU THAT NIGHT.


26 AT WHAT POINT IN THE EVENING DID THAT OCCUR?

27 A. SHORTLY AFTER WE GOT THERE.


28 Q. DID THAT — DID ANYONE ELSE BOTHER YOU THAT NIGHT
4076
1 AT ALL?

2 A. NO.


3 Q. WHEN YOU DECIDED TO LEAVE THE BAR YOU WAITED UNTIL

4 CLOSING TIME, IS THAT RIGHT?

5 A. WE WERE OUT IN THE SMOKING ROOM AND SOMEONE CAME

6 OUT AND SAID IT’S TEN TO 2:00, LAST CALL. THE LIGHTS WENT ON,

7 AND SO WE DECIDED TO LEAVE THEN AT TEN TO 2:00.


8 Q. AND YOU DROVE TO BRENDA’S HOUSE?

9 A. BRENDA WENT OUT AND GOT THE CAR WHILE WE FINISHED

10 OUR CIGARETTES, YES, AND WE DROVE TO THE HOUSE.


11 Q. AND THEN YOU DROVE TO BRENDA’S HOUSE, RIGHT?

12 A. WELL, WE STARTED TO, AND THEN WE CAME BACK FOR THE

13 CIGARETTES AND WE WENT BACK TO BRENDA’S.


14 Q. WHEN YOU GOT TO BRENDA’S, WHERE WERE RICH AND

15 KEITH, IF YOU RECALL?

16 A. THEY DIDN’T COME UNTIL AFTER US.


17 Q. IF YOU RECALL, HOW MUCH TIME AFTER YOU?

18 A. PROBABLY FIVE MINUTES, SIX, SEVEN MINUTES.


19 Q. ALL RIGHT.


20 A SHORT PERIOD OF TIME?

21 A. YEAH.


22 Q. WHEN YOU WENT IN THE HOUSE AFTER — IT’S ABOUT 2

23 O’CLOCK, OKAY? I’M JUST TRYING TO GET CLOSE TO —

24 A. YES.


25 Q. IT’S NOW THE EARLY MORNING HOURS OF THE 2ND?

26 A. YES, IT’S 2:00 A.M.


27 Q. YOU SAID — I THINK YOU TOLD US ON DIRECT YOU WERE

28 FEELING SICK, AND SO — OR YOU WERE AFRAID THAT IF YOU DIDN’T
4077
1 EAT YOU WOULD GET SICK, IS THAT RIGHT?

2 A. I WAS HUNGRY. I WAS JUST HUNGRY. I WANTED TO EAT.


3 Q. WELL, YOU TOLD MR. DUSEK THAT IF YOU DIDN’T EAT YOU

4 WERE GOING TO GET SICK. WHAT DOES THAT MEAN?

5 A. I WAS HUNGRY AND I WANTED TO EAT SO THAT I WOULDN’T

6 THROW UP.


7 Q. DOES THAT MEAN YOU HAD BEEN DRINKING ON AN EMPTY

8 STOMACH?

9 A. NO. WE STOPPED AT MCDONALDS ON THE WAY TO

10 BRENDA’S, BARB AND I.


11 Q. BUT YOU DID FEEL THAT YOU HAD SO MUCH TO DRINK THAT

12 NIGHT YOU WERE GETTING THE QUEASIES. YOU WERE QUEASY?

13 A. WELL, I ONLY HAD A COUPLE OF BURGERS AND SOME

14 FRENCH FRIES. I WAS HUNGRY.


15 Q. SO YOU ALL GO IN THE HOUSE, AND WHAT’S THE FIRST

16 THING YOU DO?

17 A. WE WALK IN AND WE GO UPSTAIRS.


18 Q. SO THE FIRST THING YOU DID WAS YOU ENTERED WITH

19 BRENDA AND BARBARA, IS THAT RIGHT?

20 A. YES.


21 Q. YOU WALKED INTO THE FRONT DOOR; IS THAT CORRECT?

22 A. YES.


23 Q. I’M TRYING NOT TO BREAK ANYTHING.


24 AFTER ALL THAT, I’VE MANAGED TO GET UP ON THE BOARD

25 COURT EXHIBIT 14.


26 A. OKAY.


27 Q. WE’RE TOLD THIS IS AN EXHIBIT BOARD OF THE VAN DAM

28 RESIDENCE.
4078
1 CAN YOU TELL ME, DOES THIS LOOK TO BE AN ACCURATE

2 REPRESENTATION OF THE WAY THE VAN DAM RESIDENCE APPEARED ON

3 FEBRUARY 1 WHEN YOU GOT THERE?

4 A. YES.


5 Q. AND SIMILARLY, THIS IS HOW IT LOOKED WHEN YOU GOT

6 BACK AT ABOUT 2 O’CLOCK IN THE MORNING, IS THAT RIGHT, MA’AM?

7 A. YES.


8 Q. NOW YOU TOLD US YOU WENT IN THE FRONT DOOR AND

9 DIRECTLY UP THE STAIRS, IS THAT RIGHT?

10 A. YES.


11 Q. NOW, DO WE SEE THE SECOND STORY HERE?

12 A. NO.


13 Q. DO YOU SEE THE SECOND STORY?

14 A. NO.


15 Q. I’M NOW SHOWING YOU EXHIBIT 19, AND I’M PICKING UP

16 IN PHOTOGRAPH “A” THE STAIRWELL?

17 A. YES.


18 Q. IS THIS THE STAIRWELL THAT YOU WALKED UP, MA’AM?

19 A. YES.


20 Q. AND IN PHOTOGRAPH “B” YOU SEE THE LANDING OF THE

21 STAIRWELL?

22 A. YES.


23 Q. AND YOU GO PASS THAT?

24 A. YES.


25 Q. AND IN PHOTOGRAPH “F” AND IN PHOTOGRAPH “H” WE SEE

26 KIND OF A HALLWAY?

27 A. YES.


28 Q. WHICH OF THESE, IF YOU RECALL, IS THE VAN DAM
4079
1 MASTER BEDROOM, IF EITHER?

2 A. WELL, IT’S THE HALLWAY TO THE BEDROOMS, AND IF YOU

3 LOOK AT “F,” YOU COME UP THE STAIRS RIGHT HERE. IF YOU MAKE A

4 RIGHT, THAT’S BRENDA AND DAMON’S ROOM. YOU MAKE A LEFT, THESE

5 ARE THE KIDS’ ROOM.


6 Q. OKAY. LET ME STOP YOU.


7 YOU POINTED TO EXHIBIT F, AND WHEN YOU SAID ‘HERE,”

8 YOU WERE POINTING TO THE AREA WHERE THE DOOR — WE CAN SEE THE

9 DOOR IN 19F, IS THAT RIGHT, MA’AM?

10 A. YES.


11 Q. OKAY.


12 EXCUSE ME. CAN I HAVE A WORD WITH COUNSEL?

13 (PAUSE)

14 THE COURT: TWENTY, COUNSEL.


15 MR. FELDMAN: TWENTY? THANK YOU. ACTUALLY, I WON’T BE

16 ABLE TO FIND 20 BECAUSE I’M LOOKING FOR IT. THANK YOU.


17 Q. MA’AM, I’M NOW TRYING TO DIRECT YOUR ATTENTION TO

18 WHAT’S BEEN PREVIOUSLY MARKED 20.


19 DO YOU RECOGNIZE THIS PARTICULAR — WHAT’S DEPICTED

20 IN THE EXHIBIT?

21 A. YES. THAT’S BRENDA AND DAMON’S ROOM.


22 Q. OKAY.


23 CAN YOU TELL ME, PLEASE, FIRST DO YOU SEE THE AREA

24 WHERE YOU’D WALK IN FROM THE HALLWAY THAT YOU JUST TOLD ME

25 ABOUT?

26 A. RIGHT HERE.


27 Q. WHEN YOU SAY RIGHT HERE YOU’RE POINTING TO THE AREA

28 THAT’S 20A DEPICTED IN THE PHOTO, IS THAT RIGHT, MA’AM?
4080
1 A. YES.


2 Q. AND AS YOU WALK THROUGH INTO THE BEDROOM — LET ME

3 DIRECT YOUR ATTENTION TO THE PHOTO ON THE RIGHT, “D”.


4 A. RIGHT.


5 Q. WHERE IS THE BATHROOM?

6 A. IF YOU WALK THROUGH THIS DOOR?

7 Q. YES.


8 A. DIRECTLY TO THE RIGHT —

9 Q. YES.


10 A. — IS THE BEDROOM —

11 Q. YES.


12 A. — IS THE BED. IF YOU MAKE A LEFT, THERE’S A

13 LITTLE HALLWAY THERE, JUST A LITTLE WALKWAY, AND THE BATHROOM IS

14 ON THE LEFT-HAND SIDE, AND THERE’S THE SINKS AND ON THE

15 RIGHT-HAND SIDE IS THE SHOWERS.


16 Q. ALL RIGHT.


17 IS THERE A DOOR THAT PROVIDES PRIVACY BETWEEN THE

18 BATHROOMS OR THE BATHROOM, RATHER, AND THE BEDROOM?

19 A. THERE’S A DOOR TO THE BATHROOM, BUT IF YOU WALK

20 AROUND HERE TO THE LEFT, THERE’S NO DOOR. YOU’LL GET — IF YOU

21 DON’T STOP, THE MIRROR’S THERE AND THE SINKS. TO THE LEFT OF

22 THE SINKS IS THE BATHROOM. THERE’S A DOOR TO THE BATHROOM. TO

23 THE RIGHT OF THE SINKS IS THE TUB.


24 Q. OKAY. YOU SAID “HERE.” AGAIN YOU’RE REFERRING TO

25 PHOTOGRAPH “A,” IS THAT RIGHT?

26 A. YES.


27 Q. THANK YOU.


28 SO WHEN YOU GOT TO THE — WHEN YOU WENT UPSTAIRS,
4081
1 DAMON WAS LAYING IN BED; IS THAT RIGHT?

2 A. YES.


3 Q. AND BARBARA WENT IN THROUGH THE HALLWAY, AND

4 INSTEAD OF TURNING LEFT TO THE BATHROOM, SHE TURNED INTO THE

5 AREA WHERE THE BED WAS; IS THAT CORRECT?

6 A. YES.


7 Q. AND SHE GOT INTO THE BED — ONTO THE BED, IN YOUR

8 WORDS; IS THAT CORRECT?

9 A. YES.


10 Q. WHAT WAS DAMON DOING?

11 A. HE WAS WATCHING TV. HE MIGHT HAVE BEEN SLEEPING,

12 I’M NOT SURE.


13 Q. WELL, DID SHE EMBRACE HIM?

14 A. NO. I THINK SHE JUST LAID NEXT TO HIM AND WAS

15 WAKING HIM UP.


16 Q. SO YOU DIDN’T EVER SEE DAMON PUT HIS ARM AROUND HER

17 AND KISS HER?

18 A. NO.


19 Q. AND YOU DIDN’T SEE BARBARA SNUGGLE UP TO HIM?

20 A. NO. I WENT TO THE BATHROOM AND THEN WENT DIRECTLY

21 DOWNSTAIRS.


22 Q. WHEN YOU WENT TO THE BATHROOM, DID YOU GO TO THE

23 BATHROOM WITH BRENDA?

24 A. YEAH, WE TOOK TURNS. I WENT AND THEN SHE WENT OR

25 VISA VERSA.


26 Q. DID YOU CLOSE THE DOOR? CLOSE THE DOOR?

27 A. NO.


28 Q. WHAT’S THE LINE OF SIGHT FROM DAMON LOOKING INTO
4082
1 THAT BATHROOM?

2 A. THE LINE OF SIGHT WOULD BE THE SINKS AND THERE’S A

3 MIRROR, THE SINK.


4 Q. THERE’S BATHROOMS DOWNSTAIRS, AREN’T THERE?

5 A. YES.


6 Q. AND BOTH YOU AND BRENDA NEEDED TO USE THE

7 FACILITIES AT THE SAME TIME, RIGHT?

8 A. YEAH.


9 Q. AND YOU’D BEEN TO THE HOUSE BEFORE, RIGHT?

10 A. YES.


11 Q. WHY DIDN’T YOU USE THE DOWNSTAIRS BATHROOM?

12 A. I DON’T KNOW. WE JUST WENT IN AND THEN I FOLLOWED

13 BRENDA UPSTAIRS.


14 Q. KNOWING THAT BRENDA’S HUSBAND WAS IN BED?

15 A. I DIDN’T THINK OF THAT.


16 Q. WHEN YOU GOT DONE DOING YOUR BUSINESS YOU WENT BACK

17 DOWNSTAIRS, IS THAT RIGHT?

18 A. YES.


19 Q. YOU DON’T HAVE A RECOLLECTION AS TO WHAT DAMON WAS

20 DOING WITH BARBARA AT THAT TIME; IS THAT CORRECT?

21 A. I — I — NO.


22 Q. WHEN YOU SAY NO, YOU MEAN TO AGREE?

23 A. I SAW THEM AS I WALKED OUT OF THE BEDROOM BUT SHE

24 WAS JUST LAYING ACROSS BRENDA’S SIDE OF THE BED AND THEY WEREN’T

25 DOING ANYTHING TO MY KNOWLEDGE.


26 Q. IN FACT, TO YOUR KNOWLEDGE DAMON NEVER CAME

27 DOWNSTAIRS THAT NIGHT, CORRECT?

28 A. I DON’T RECALL SEEING HIM IN THE KITCHEN, BUT I
4083
1 RECALL SEEING HIM IN THE DOORWAY OF THE GARAGE.


2 Q. DO YOU RECALL BEING INTERVIEWED BY A DETECTIVE

3 NAMED FISHER ON FEBRUARY THE 3RD, 2002, AT APPROXIMATELY 1:00

4 P.M.?

5 A. I REMEMBER FRANK GRBAC AND HERGENROETHER. FISHER,

6 HE ESCAPES ME. I DON’T RECALL HIM.


7 MR. FELDMAN: COUNSEL, PAGE 15 OF THE INTERVIEW.


8 Q. DO YOU THINK THAT LOOKING AT YOUR STATEMENT TO THE

9 DETECTIVE MIGHT REFRESH YOUR RECOLLECTION AS TO WHETHER OR NOT

10 YOU EVER SAID DAMON NEVER CAME DOWN AT ALL DOWNSTAIRS?

11 MR. DUSEK: OBJECTION, ASSUMES SHE NEEDS REFRESHING.


12 THE COURT: OVERRULED.


13 YOU CAN ANSWER.


14 THE WITNESS: YES, I’D LIKE TO SEE IT.


15 THE COURT: ALL RIGHT.


16 MR. FELDMAN: YES.


17 Q. MA’AM, I’M SHOWING YOU PAGE 15 OF A TRANSCRIPT OF

18 AN INTERVIEW THAT YOU HAD. IT’S THE DEFENSE’S BATE STAMP AND

19 IT’S NO. 339, AND YOU’LL SEE THAT IT’S BOLDFACED. PLEASE JUST

20 LOOK ANYPLACE AROUND THIS TO MAKE YOURSELF COMFORTABLE THAT I’M

21 SHOWING YOU IN CONTEXT WHAT I’M PRESENTING TO YOU.


22 A. YES. AND THEN DOWN HERE I SAID I DON’T RE —

23 Q. EXCUSE ME, FIRST QUESTION.


24 A. OKAY.


25 Q. DID YOU HAVE A CHANCE TO REVIEW THE DOCUMENT?

26 A. YES.


27 Q. OKAY. THE DOCUMENT INDICATES THAT YOU WERE ASKED

28 THE QUESTION “DID DAMON COME DOWNSTAIRS” AND YOU SAID “NO, HE
4084
1 DIDN’T COME DOWN AT ALL.” RIGHT? IT SAYS THAT IN THE

2 BEGINNING, RIGHT?

3 A. YES.


4 Q. AND THEN THE INTERVIEW SAID “OKAY” AND YOU SAID “I

5 DO KNOW THAT,” CORRECT?

6 A. AND THEN I SAID “I DON’T REMEMBER HIM COMING DOWN.


7 I DON’T REMEMBER HIM COMING DOWN.”

8 Q. SO YOU SAID BOTH. BOTH THAT HE NEVER CAME DOWN —

9 A. RIGHT.


10 Q. — AND THAT YOU DID NOT REMEMBER HIM COMING DOWN,

11 RIGHT?

12 A. YES. THAT’S —

13 Q. AND THIS IS TWO DAYS LATER THAN THE 1ST. IN OTHER

14 WORDS, THIS IS NOW FEBRUARY 3 THAT YOU MADE THESE STATEMENTS,

15 RIGHT?

16 A. YES. I DON’T RECALL SEEING HIM IN THE KITCHEN.


17 Q. ALL RIGHT.


18 IT’S CORRECT THAT YOU WERE ASKED WHETHER OR NOT THE

19 REASON YOU WEREN’T SURE IS BECAUSE THINGS WERE KIND OF FUZZY, IS

20 THAT RIGHT?

21 A. YES. I WAS CONCERNED WITH EATING AND LEAVING.


22 Q. WELL —

23 A. I DIDN’T —

24 Q. EXCUSE ME. I DIDN’T MEAN TO INTERRUPT.


25 A. GO AHEAD.


26 Q. IT’S THE CASE THINGS WERE FUZZY BECAUSE YOU HAD A

27 BIT TO DRINK?

28 A. NO. I WAS HUNGRY AND I WANTED TO EAT. I DIDN’T
4085
1 PAY ATTENTION TO WHAT EVERYONE ELSE WAS DOING. I WANTED TO EAT

2 AND LEAVE.


3 Q. WELL, SO OKAY. SO YOU’RE NOT SURE — AT THIS

4 MOMENT WHAT’S YOUR MEMORY, DID HE COME DOWNSTAIRS OR DIDN’T HE

5 COME DOWNSTAIRS OR YOU GOT NO MEMORY?

6 A. I REMEMBER SEEING HIM, WHEN WE WENT OUT TO THE

7 GARAGE TO CLOSE THE DOOR, IN THE DOORWAY STANDING THERE, TO THE

8 HOUSE. BUT I DON’T RECALL SEEING HIM IN THE KITCHEN.


9 Q. YOU JUST SAID YOU REMEMBER HIM IN THE GARAGE WHEN

10 YOU CLOSED THE DOOR. I THINK —

11 A. OKAY.


12 Q. LET’S BACK UP FOR A SECOND. AFTER YOU’RE DONE

13 DOING YOUR BUSINESS IN THE UPSTAIRS, YOU WENT DOWNSTAIRS WITH

14 BRENDA, IS THAT RIGHT?

15 A. YES.


16 Q. BECAUSE BRENDA NOTICED OR YOU HAD NOTICED OR

17 SOMEONE HAD CALLED TO YOUR ATTENTION A BLINKING LIGHT, IS THAT

18 RIGHT?

19 A. YES.


20 Q. THEN YOU AND BRENDA WENT TO THE GARAGE, IS THAT

21 RIGHT?

22 A. YES.


23 Q. EITHER YOU OR BRENDA CLOSED THE DOOR, IS THAT

24 RIGHT?

25 A. BRENDA CLOSED THE DOOR WHEN WE GOT IN — WE SAW

26 THAT IT WAS OPEN AND SHE CLOSED THE DOOR AND THEN I TURNED

27 AROUND, I SAW DAMON STANDING THERE.


28 Q. OKAY. SO NOW IT’S YOUR RECOLLECTION THAT YOU SAW
4086
1 DAMON AT THE POINT THAT BRENDA CLOSED THE DOOR?

2 A. CLOSED THE DOOR, AND THEY WERE TALKING ABOUT IT BUT

3 I DON’T REMEMBER SEEING HIM IN THE KITCHEN.


4 Q. DO YOU RECALL THE QUESTION BEING PUT TO YOU BY THE

5 INTERVIEWER ON THE 3RD, QUOTE, “DID DAMON COME DOWNSTAIRS?” AND

6 YOUR ANSWER “NO, HE DIDN’T COME DOWN AT ALL.” DO YOU RECALL

7 THAT?

8 MR. DUSEK: OBJECTION, ASKED AND ANSWERED.


9 THE COURT: SUSTAINED.


10

11 BY MR. FELDMAN:

12 Q. AFTER THE DOOR WAS CLOSED, AS YOU’VE DESCRIBED IT,

13 WHAT’S YOUR NEXT RECOLLECTION OF SEEING DAMON?

14 A. I DON’T REMEMBER SEEING HIM.


15 Q. HOW WAS DAMON DRESSED WHEN YOU SAW HIM IN THE

16 GARAGE?

17 A. I DON’T REMEMBER WHAT HE WAS WEARING.


18 Q. DO YOU REMEMBER WHAT BRENDA WAS WEARING THAT NIGHT?

19 A. I REMEMBER, I THINK SHE WAS WEARING A RED SHIRT AND

20 BLACK PANTS.


21 Q. DO YOU REMEMBER WHAT THE MEN WERE WEARING, THAT IS,

22 KEITH AND RICH?

23 A. I COULD ONLY ASSUME BLUE JEANS AND A SHIRT.


24 Q. YOU’RE GUESSING ON THAT ONE, RIGHT.


25 A. YES.


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


27 THE COURT: ALL RIGHT.


28 (PAUSE)
4087
1 MR. FELDMAN: NO FURTHER QUESTIONS AT THIS TIME. THANK

2 YOU.


3 THE COURT: ANYTHING FURTHER, MR. DUSEK?

4 MR. DUSEK: YES, IF I MAY.


5

6 REDIRECT EXAMINATION +

7 BY MR. DUSEK:

8 Q. THE VAN DAM DOG, DOES THAT DOG MAKE ANY NOISE?

9 A. NO, SHE DOESN’T BARK.


10 Q. WHEN THE POLICE CONTACTED YOU AND BEGAN

11 INTERVIEWING YOU ABOUT YOUR KNOWLEDGE OF THIS CASE, DID YOU TELL

12 THEM WHO WAS WITH YOU AT THE VAN DAM HOME THAT EVENING?

13 A. YES.


14 Q. WHAT NAMES DID YOU TELL THEM WERE AT THE HOME?

15 A. BRENDA, BARBARA, RICH, KEITH AND ME.


16 Q. YOU DIDN’T WITHHOLD ANY OF THAT INFORMATION?

17 A. NO.


18 Q. YOU DIDN’T TELL THEM ABOUT A SEXUAL ENCOUNTER YOU

19 HAD IN HALLOWEEN OF 2000?

20 A. NO, I DIDN’T.


21 Q. ON THAT OCCASION WAS IT AFTER THE PARTY WAS OVER?

22 A. YES, AND EVERYONE WAS GONE.


23 Q. WERE THE KIDS AT HOME?

24 A. NO. THEY WERE NEVER HOME FOR HALLOWEEN PARTIES.


25 Q. WHEN YOU GOT THE PHONE CALL FROM DAMON VAN DAM

26 ASKING YOU ABOUT — OR TELLING YOU ABOUT DANIELLE MISSING, HOW

27 LONG WERE YOU ON THE PHONE WITH HIM?

28 A. ABOUT TWO MINUTES, IF THAT. HE JUST TOLD ME
4088
1 QUICKLY THAT THEY COULDN’T FIND HER, THAT SHE WAS MISSING AND —

2 MR. BOYCE: OBJECTION, HEARSAY.


3 THE COURT: OVERRULED.


4 YOU MAY ANSWER, MA’AM.


5 THE WITNESS: — THAT DANIELLE WAS MISSING.


6 MR. FELDMAN: YOUR HONOR, I’D ASK FOR A LIMITING

7 INSTRUCTION AS TO WHAT SHE’S RELATING.


8 THE COURT: OVERRULED. THE ANSWER STANDS. NEXT

9 QUESTION.


10

11 BY MR. DUSEK:

12 Q. AFTER YOU COMPLETED THAT PHONE CALL WITH DAMON, HOW

13 QUICKLY DID YOU GET OVER TO THE VAN DAM HOME?

14 A. WITHIN 15 MINUTES.


15 Q. AND WHEN YOU ARRIVED AT THE NEIGHBORHOOD, DID YOU

16 GET A CHANCE TO SPEAK WITH DAMON OR BRENDA VAN DAM BEFORE YOU

17 WERE INTERVIEWED BY THE POLICE DEPARTMENT?

18 A. NO.


19 Q. DID YOU SEE — WHERE WERE YOU INTERVIEWED BY THE

20 POLICE THAT FIRST TIME?

21 A. AT THE POLICE STATION IN PENASQUITOS.


22 Q. DID YOU SEE ANY OF THE OTHER INDIVIDUALS THAT HAD

23 BEEN IN THE HOME THE NIGHT BEFORE WHILE YOU WERE AT THE POLICE

24 STATION?

25 A. NO.


26 Q. YOU TALKED ABOUT SOME GUY BOTHERING YOU OR

27 PESTERING YOU ON THAT SECOND OCCASION AT DAD’S. DO YOU RECALL

28 THOSE QUESTIONS?
4089
1 A. YES.


2 Q. WHEN DID YOU FIRST RUN INTO HIM AT DAD’S ON THE 1ST

3 OF FEBRUARY?

4 A. SHORTLY AFTER WE GOT THERE. ACTUALLY, RICH AND

5 KEITH I THINK WERE THERE AT THAT POINT AND HE CAME OVER TO US.


6 Q. DID YOU SPEAK WITH HIM?

7 A. YES.


8 Q. WHAT DID HE SEEM LIKE?

9 A. HE SEEMED LIKE A NICE GUY. HE WAS JUST NOSEY.


10 Q. DID YOU DANCE WITH HIM?

11 A. NO.


12 Q. DID YOU SEE HIM LATER ON THAT EVENING?

13 A. YEAH, HE CAME AROUND EVERY — YOU KNOW, DURING THE

14 NIGHT HE’D POP AROUND AND SAY HEY, GIRLS, YOU KNOW.


15 Q. WERE THERE FELLOWS IN THE BAR DOING THE SAME THING,

16 TALKING TO YOU?

17 A. NOT REALLY. I WAS — HE WAS IN AND OUT. WE TALKED

18 TO PEOPLE. I MEAN, WHEN YOU’RE IN A SOCIAL ENVIRONMENT YOU DO.


19 Q. WHEN YOU ARRIVED IN THE VAN DAM RESIDENCE ON THE

20 1ST OF FEBRUARY, YOU INDICATED SOMEBODY WAS OUTSIDE WHEN YOU

21 FIRST ARRIVED?

22 A. YEAH. WHEN WE WERE WALKING UP TO THE HOUSE BRENDA

23 AND DANIELLE JUMPED FROM BEHIND THE TRUCK AND SCARED ME.


24 Q. ALL RIGHT.


25 THANK YOU, MA’AM.


26 A. OKAY.


27 THE COURT: ANYTHING FURTHER, MR. FELDMAN?

28 MR. FELDMAN: JUST BRIEFLY.
4090
1

2 RECROSS-EXAMINATION +

3 BY MR. FELDMAN:

4 Q. THE SEXUAL ENCOUNTER WHERE YOU DISCUSSED SWITCHING

5 PARTNERS THAT MR. DUSEK JUST RAISED, DID THAT OCCUR UPSTAIRS OR

6 DOWNSTAIRS IN THE HOUSE?

7 A. UPSTAIRS.


8 Q. AT THE BREAK DID MR. DUSEK AND YOU HAVE A

9 CONVERSATION CONCERNING ANYTHING HAVING TO DO WITH YOUR

10 TESTIMONY?

11 A. WE DID SPEAK.


12 Q. CONCERNING THE QUESTIONS THAT WERE JUST NOW PUT TO

13 YOU, RIGHT?

14 A. YES.


15 MR. FELDMAN: YOUR HONOR, I HAVE NO FURTHER QUESTIONS,

16 BUT I WISH TO HAVE THE WITNESS EXCUSED SUBJECT TO RECALL,

17 PLEASE.


18 THE COURT: ALL RIGHT. SUBJECT TO RECALL.


19 MR. DUSEK: AT HIS EXPENSE.


20 MR. FELDMAN: I WANT A SIDE BAR, PLEASE.


21 THE COURT: ALL RIGHT.


22 (THE FOLLOWING PROCEEDINGS WERE HELD
AT THE BENCH BETWEEN COURT AND COUNSEL:)
23

24 THE COURT: FIRST OF ALL, I NEED TO KNOW WHERE SHE

25 CURRENTLY RESIDES.


26 MR. DUSEK: FLORIDA.


27 THE COURT: FLORIDA, OKAY.


28 MR. DUSEK: AND SHE FLIES OUT OF BALTIMORE.
4091
1 THE COURT: SHE LIVES IN FLORIDA AND FLIES OUT OF

2 BALTIMORE.


3 MR. DUSEK: SHE USED TO LIVE IN SAN DIEGO AND FLY OUT OF

4 BALTIMORE.


5 THE COURT: OH, OKAY. ALL RIGHT.


6 MR. FELDMAN: THE REASON FOR THE REQUEST, YOUR HONOR, IS

7 BECAUSE IN DISCOVERY WE WERE NOT PROVIDED WITH AN AUDIO TAPE OF

8 THE FIRST INTERVIEW AND WE DIDN’T NOTICE THAT. THERE HAVE BEEN,

9 YOU KNOW — DISCOVERY APPEARS TO BE SOMEWHAT ONGOING.


10 ON I THINK LATE FRIDAY, OR WHENEVER LAST THE

11 LAWYERS HAD THE OPPORTUNITY TO COMMUNICATE LATE IN THE DAY, WE

12 OBTAINED COPIES OF A NUMBER OF TRANSCRIPTS. I THINK THAT’S —

13 WE HAD THEM PREPARED OVER THE WEEKEND, AND THAT WAS THE

14 TRANSCRIPTS THAT MR. DUSEK WAS REFERENCING. BUT ONE OF THE

15 THINGS THAT WE DON’T HAVE, AND WE HAVE FILED NUMEROUS INFORMAL

16 REQUESTS AND A FORMAL REQUEST, IS HER FIRST INTERVIEW WITH

17 GRBAC.


18 MR. BOYCE: AT 5 O’CLOCK IN THE AFTERNOON ON THE 2ND.


19 MR. FELDMAN: AND SO WE DON’T HAVE THAT. AND SO, IF

20 THERE’S SOMETHING IN THERE, I’M SURE WE ARE GOING TO GET IT. IF

21 THERE’S SOMETHING IN THERE THAT’S DIFFERENT THAN WHAT SHE HAS TO

22 SAY, I WANT GRBAC. I THINK, BECAUSE WE HAVEN’T HAD HER PROVIDED

23 DISCOVERY I THINK SHE’S SUBJECT TO RECALL.


24 THE FINAL ISSUE, I DON’T THINK WE NEED TO ADDRESS

25 THAT, BUT I WANTED THE COURT TO KNOW THE REASON WE WERE MAKING

26 THE REQUEST.


27 THE COURT: AS LONG AS THERE IS THAT ISSUE SHOULD YOU

28 NEED TO RECALL HER, I HAVE NO PROBLEM KEEPING HER SUBJECT TO
4092
1 RECALL, AS LONG AS WE KNOW WHERE SHE’S AT AND HOW TO GET IN

2 TOUCH WITH HER, AND I’M ASSUMING WE KNOW THAT.


3 MR. FELDMAN: YES.


4 MR. DUSEK: UNLESS SHE GOES ON A FLIGHT.


5 THE COURT: NO. I UNDERSTAND IT WILL BE SUBJECT TO HER

6 WORK SCHEDULE, BUT YOU KNOW HOW TO GET IN TOUCH WITH HER. OKAY.


7 MR. FELDMAN: THANK YOU.


8 THE COURT: ALL RIGHT.


9 (THE FOLLOWING PROCEEDINGS WERE HELD IN
OPEN COURT IN THE PRESENCE OF THE JURY:)
10

11 THE COURT: MA’AM, YOUR TIME WITH US IS DONE RIGHT NOW.


12 YOU WILL BE SUBJECT TO RECALL, WHICH MEANS YOU’RE GOING TO HAVE

13 TO CONTINUE TO KEEP MR. DUSEK’S OFFICE APPRISED OF HOW TO GET IN

14 TOUCH WITH YOU SHOULD THAT NEED ARISE.


15 I JUST WANT TO REMIND YOU THAT YOU’RE UNDER AN

16 ORDER NOT TO DISCUSS YOUR CASE WITH ANYONE — I MEAN YOUR

17 TESTIMONY — UNTIL THIS MATTER’S RESOLVED, OKAY?

18 THE WITNESS: OKAY.


19 THE COURT: YOU’RE FREE TO LEAVE AT THIS TIME. THANK

20 YOU.


21 ALL RIGHT. MR. DUSEK.


22 MR. DUSEK: RICH BRADY.


23

24 ///

25 ///

26 ///

27 ///

28 -RICHARD BRADY,+
4093
1 THE PLAINTIFF’S WITNESS, HAVING BEEN SWORN, TESTIFIED AS

2 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: RICHARD BRADY, R-I-C-H-A-R-D, B-R-A-D-Y.


8

9 DIRECT EXAMINATION +

10 BY MR. DUSEK:

11 Q. GOOD MORNING, MR. BRADY.


12 ARE YOU EMPLOYED, SIR?

13 A. I’M SELF-EMPLOYED.


14 Q. WHAT TYPE OF WORK DO YOU DO?

15 A. DATA COMMUNICATIONS CABLING.


16 Q. ARE YOU MARRIED?

17 A. YES.


18 Q. HOW MANY KIDS?

19 A. TWO.


20 Q. WHAT PART OF TOWN DO YOU LIVE IN?

21 A. SABRE SPRINGS.


22 Q. HOW LONG HAVE YOU LIVED UP THERE?

23 A. FOUR AND A HALF YEARS.


24 Q. DO YOU KNOW THE VAN DAM FAMILY?

25 A. YES.


26 Q. HOW LONG HAVE YOU KNOWN THEM?

27 A. PROBABLY ABOUT A YEAR AND A HALF TO TWO YEARS.


28 Q. DO YOU RECALL HOW IT WAS THAT YOU GOT TO KNOW THEM,
4094
1 MET THEM?

2 A. MY YOUNGER SON AND THEIR YOUNGER SON WERE IN SCHOOL

3 TOGETHER.


4 Q. HOW MANY KIDS DO THEY HAVE?

5 A. RIGHT NOW THEY HAVE TWO.


6 Q. THEY USED TO HAVE THREE?

7 A. YES.


8 Q. DID YOU HAVE ANY CONTACT WITH ANY OF THEIR

9 CHILDREN?

10 A. YES.


11 Q. WHICH ONE?

12 A. WELL, ALL THREE ACTUALLY ON AND OFF BECAUSE, YOU

13 KNOW, YOU KNOW, MY WIFE AND BRENDA WERE FRIENDS SO, YOU KNOW,

14 BABY-SITTING, THINGS LIKE THAT.


15 Q. HOW FAR FROM THE VAN DAMS DID YOU LIVE?

16 A. PROBABLY ABOUT A HALF A MILE.


17 Q. LET ME DIRECT YOUR ATTENTION TO FEBRUARY 1ST OF

18 THIS YEAR. WERE YOU FAMILIAR WITH A PLACE CALLED DAD’S AT THAT

19 TIME?

20 A. YES.


21 Q. WHERE IS IT?

22 A. IT’S IN POWAY.


23 Q. WHAT IS IT?

24 A. IT’S A BAR AND A RESTAURANT.


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

26 COURT’S EXHIBIT 31 ON THIS BOARD BEHIND US.


27 DO YOU RECOGNIZE WHAT WE HAVE DEPICTED THERE?

28 A. THAT’S DAD’S.
4095
1 Q. AND HAD YOU BEEN THERE BEFORE?

2 A. COUPLE TIMES.


3 Q. FOR WHAT OCCASIONS?

4 A. THE LOCAL LITTLE LEAGUE HAS THEIR PARTIES THERE,

5 AND PROBABLY FOR DINNER ONCE OR TWICE.


6 Q. DID YOU GO TO DAD’S THAT EVENING, FEBRUARY 1ST OF

7 THIS YEAR?

8 A. YES.


9 Q. WHO DID YOU GO THERE WITH?

10 A. KEITH STONE.


11 Q. WHO IS KEITH?

12 A. HE’S MY EX-BROTHER-IN-LAW.


13 Q. EXPLAIN THE CONNECTION.


14 A. HE USED TO BE MARRIED TO MY WIFE’S SISTER.


15 Q. HOW LONG AGO?

16 A. THEY’VE BEEN DIVORCED FOR A FEW YEARS. I’M NOT

17 REALLY SURE HOW LONG.


18 Q. EVEN AFTER THE DIVORCE YOU MAINTAINED WHAT TYPE OF

19 RELATIONSHIP WITH HIM?

20 A. WE’RE GOOD FRIENDS.


21 Q. WHERE DID HE LIVE BACK THEN?

22 A. WHEN?

23 Q. FEBRUARY.


24 A. HE LIVED IN SABRE SPRINGS.


25 Q. HOW WAS IT THAT YOU CAME TO GO TO DAD’S THAT

26 EVENING?

27 A. KEITH HAD A FRIEND WHO HAD A BAND, AND HE CALLED ME

28 THAT EVENING ASKING ME IF I WOULD LIKE TO GO WITH HIM TO SEE THE
4096
1 BAND BECAUSE HE DIDN’T WANT TO GO BY HIMSELF. SO I WENT OVER

2 THERE TO — WITH HIM TO KEEP HIM COMPANY, HAVE A COUPLE BEERS

3 AND SEE THE BAND.


4 Q. DID YOUR WIFE GO ALONG?

5 A. NO.


6 Q. WHY NOT?

7 A. SHORT NOTICE. WE COULDN’T GET A BABY-SITTER.


8 Q. WHO DROVE TO DAD’S?

9 A. KEITH DID.


10 Q. WHO — DID HE COME TO YOUR HOUSE OR DID YOU GO TO

11 HIS?

12 A. NO, I WENT TO HIS HOUSE.


13 Q. ABOUT WHAT TIME WOULD YOU SAY YOU GOT TO DAD’S THAT

14 EVENING?

15 A. SOMETIME AFTER 9 O’CLOCK.


16 Q. WHY DO YOU SAY THAT?

17 A. BECAUSE I THINK I WENT DOWN TO KEITH’S AT ABOUT

18 9:00.


19 Q. FROM HIS PLACE HOW LONG DOES IT TAKE TO GET TO

20 DAD’S?

21 A. FIVE OR 10 MINUTES.


22 Q. WERE YOU — ANY DIFFICULTY GETTING INTO DAD’S?

23 A. NO.


24 Q. WAS THE BAND THERE?

25 A. YES.


26 Q. WHAT WERE THEY DOING?

27 A. PLAYING MUSIC.


28 Q. HAD THEY ALREADY SET UP?
4097
1 A. YEAH — I’M NOT REALLY SURE. YOU KNOW, IT SEEMS

2 LIKE THEY WEREN’T PLAYING WHEN WE GOT THERE BUT THEN THEY

3 STARTED.


4 Q. DESCRIBE FOR US WHAT HAPPENED WHEN YOU GOT INTO

5 DAD’S.


6 A. WHEN WE FIRST WALKED IN THE DOOR I RECOGNIZED — I

7 SAW BRENDA WITH SOME OF HER FRIENDS AT THE BAR, AND WE STOPPED

8 TO SAY HI TO THEM.


9 Q. DID YOU KNOW BRENDA AND HER FRIENDS WERE GOING TO

10 BE THERE?

11 A. NO.


12 Q. DID YOU KNOW THE NAME OF HER FRIENDS?

13 A. I KNEW A COUPLE OF ‘EM. I KNEW A COUPLE OF ‘EM. I

14 DIDN’T KNOW THEM ALL.


15 Q. THE FRIENDS THAT WERE AT DAD’S THAT EVENING —

16 A. YEAH.


17 Q. — WHO DID YOU KNOW?

18 A. I KNEW DENISE AND BARB.


19 Q. HOW LONG — WHICH ONE HAVE YOU KNOWN THE LONGEST?

20 A. I THINK I’VE KNOWN THEM BOTH ABOUT THE SAME TIME.


21 Q. ABOUT HOW LONG AGO?

22 A. MAYBE SIX MONTHS AGO.


23 Q. WHAT WERE THEY DOING WHEN YOU FIRST ARRIVED?

24 A. THEY WERE AT THE BAR DRINKING?

25 A. WHAT DID YOU DO?

26 A. WELL, WE FIRST — WE WALKED IN TO SAY HI, AND DAVID

27 WESTERFIELD WAS AT THE BAR WITH THEM AT THE TIME AND BRENDA

28 INTRODUCED US TO HIM, AND I THINK HE HAD SOME FRIENDS WITH HIM,
4098
1 AND AFTER THAT WE JUST WENT TO OUR OWN SPOT AT THE BAR AND

2 ORDERED DRINKS.


3 Q. YOU INDICATED THE NAME DAVID WESTERFIELD.


4 DO YOU SEE HIM IN COURT TODAY?

5 A. RIGHT THERE.


6 Q. WEARING WHAT?

7 A. THAT GRAY SUIT ON.


8 THE COURT: THE RECORD WILL REFLECT IDENTIFICATION.


9

10 BY MR. DUSEK:

11 Q. HAD YOU EVER SEEN HIM BEFORE THAT EVENING?

12 A. NO.


13 Q. WHAT WAS THE DEFENDANT DOING INSIDE THE BAR?

14 A. I THINK HE WAS DRINKING AT THE BAR.


15 Q. WITH ANYBODY OR —

16 A. I’M NOT REALLY SURE. THERE WAS A LOT OF PEOPLE

17 AROUND THAT AREA AND, OTHER THAN BRENDA AND THE TWO GIRLS, I’M

18 NOT REALLY SURE WHO HE WAS WITH OR WHO HE WASN’T WITH.


19 Q. WHERE DID YOU GO?

20 A. LIKE I SAY, THE BAR WAS REAL CROWDED THERE, SO

21 AFTER — AFTER WE SAID HI WE WENT AROUND TO A PLACE WHERE THERE

22 WAS NOBODY — WHICH WAS AROUND THE CORNER AND SAT THERE FOR A

23 WHILE.


24 Q. WHAT HAPPENED AT THAT POINT?

25 A. AT THAT POINT WENT OVER TO THE OTHER SIDE OF THE

26 BAR AND PLAYED SOME — STARTED PLAYING SOME POOL.


27 Q. WHO DID YOU GO OVER THERE WITH?

28 A. I KIND OF WENT BY MYSELF, AND I WAS TALKING TO ONE
4099
1 OF THE OWNERS OF THE BAR AND WALKED OVER THERE WITH HIM.


2 Q. DO YOU REMEMBER THE NAME OF THE OWNER?

3 A. PAT.


4 Q. HOW LONG HAVE YOU KNOWN HIM?

5 A. I’VE KNOWN HIM FOR THREE OR FOUR YEARS.


6 Q. HOW DO YOU KNOW HIM?

7 A. THROUGH LITTLE LEAGUE.


8 Q. WHEN YOU WERE OVER THERE WITH PAT ON THE POOL TABLE

9 AREA, DO YOU RECALL WHERE KEITH WAS, WHAT HE WAS DOING?

10 A. NO, NOT REALLY, ‘CAUSE I WALKED OVER THERE WITH

11 HIM, YOU KNOW, WITH PAT, AND HE INTRODUCED ME TO SOME PEOPLE HE

12 KNEW, AND THAT’S WHO I PLAYED POOL WITH OVER ON THE OTHER SIDE.


13 Q. DID THE OTHER PEOPLE YOU KNEW IN THE BAR, DID THEY

14 PLAY POOL THAT EVENING?

15 A. NOT THAT I SAW, YOU KNOW. I WASN’T REALLY — I

16 WASN’T PART OF THAT, YOU KNOW, GROUP. I KIND OF WENT OFF AND

17 DID MY OWN THING FOR A WHILE, YOU KNOW?

18 Q. WHAT DO YOU MEAN BY THAT?

19 A. LIKE I SAID, I KNEW PAT AND NO ONE ELSE DID, SO I

20 STARTED TALKING TO HIM AND I WAS ON THE OTHER SIDE OF THE BAR,

21 SO —

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

23 COURT’S EXHIBIT 31, THE PHOTO DISPLAY BOARD OF DAD’S THAT WE’VE

24 BEEN USING. DO YOU SEE THE AREA THAT YOU’RE TALKING ABOUT, THE

25 POOL AREA?

26 A. YES.


27 Q. PHOTOGRAPH?

28 A. “D”.
4100
1 Q. WAS THERE ANYBODY ELSE IN THAT AREA WHEN YOU WERE

2 OVER THERE WITH PAT?

3 A. IT WAS A LOT OF PEOPLE OVER THERE. THE BAR WAS

4 PRETTY CROWDED.


5 Q. WAS THERE ANYBODY IN THERE THAT YOU KNEW, EITHER

6 BRENDA AND HER FRIENDS OR MR. WESTERFIELD AND ANYBODY ELSE?

7 A. I DIDN’T — I DIDN’T SEE THEM. I DIDN’T SEE THEM

8 PLAYING POOL OR PLAYING ANY VIDEO GAMES. I WAS PLAYING THIS

9 GAME FOR A WHILE UP AGAINST THE WALL FACING THAT WAY.


10 Q. WHAT TYPE OF GAME’S THAT?

11 A. IT’S A GOLF VIDEO GAME.


12 THE COURT: COUNSEL, WE NEED TO BREAK FOR LUNCH.


13 ALL RIGHT. LADIES AND GENTLEMEN, WE’RE GOING TO

14 TAKE THE LUNCH BREAK. PLEASE REMEMBER THE ADMONITION OF THE

15 COURT NOT TO DISCUSS ANY OF THE EVIDENCE OR TESTIMONY AMONG

16 YOURSELVES OR WITH ANY OTHER PERSONS.


17 HAVE A PLEASANT LUNCH. WE’LL SEE YOU AT HALF PAST

18 1:00, 1:30.


19 (AT 12:00 P.M. THE JURY WAS EXCUSED
AND THE FOLLOWING PROCEEDINGS WERE HAD:)
20

21 THE COURT: ALL RIGHT. THE RECORD SHOULD REFLECT THE

22 JURORS AND ALTERNATES HAVE LEFT THE COURTROOM.


23 MR. FELDMAN, YOU WANTED TO RESERVE SOME TIME TO

24 MAKE A RECORD ON — I CAN’T EVEN REMEMBER WHAT THE POINT WAS NOW

25 BUT —

26 MR. FELDMAN: I ASKED A QUESTION CONCERNING OTHER PARTIES

27 AND WHETHER OR NOT THE VAN DAMS HAD BEEN SOCIAL PEOPLE, AND THAT

28 RELATES TO THE ISSUE OF ACCESS, YOUR HONOR, AND TO THEIR
4101
1 ALLOWING UPSTAIRS, WHICH IS THE REASON, I THINK AMONG OTHERS,

2 THAT THE COURT IS ADMITTING THE LINE OF INQUIRY THAT THE COURT

3 IS ADMITTING.


4 THE COURT: ALL RIGHT.


5 AND IF IF IT HAD ANYTHING TO DO WITH THE RELEVANT

6 TIME PERIOD WHICH I’M FOCUSING ON AND WHICH MY ORDERS RELATE TO,

7 I WOULD HAVE ALLOWED IT, BUT IT DIDN’T SO I DIDN’T ALLOW IT.


8 MR. FELDMAN: ONE FURTHER POINT.


9 THE COURT: YES.


10 MR. FELDMAN: THE COURT’S ADMONITION, YOUR HONOR I’D ASK

11 THE COURT TO PLEASE USE THE STATUTORY WHICH TELLS THE JURY — I

12 KNOW YOUR HONOR’S VERY, VERY DILIGENT ABOUT TELLING THEM NOT TO

13 TALK ABOUT THE CASE. BUT MY REQUEST IS THAT YOU ALSO ADVISE

14 THEM, AND YOU HAVE DONE SO BUT NOT IN EVERY INSTANCE, DON’T FORM

15 OR EXPRESS ANY OPINIONS. I KNOW YOU HAVE — THE COURT’S SAID

16 THAT FORMERLY BUT NOT THIS TIME.


17 MR. BOYCE: I NOTICED AT THE LAST RECESS THE MEDIA IS

18 COMMUNICATING WHICHEVER NEWS SOURCE THEY’RE FROM IN THE

19 HALLWAYS, AND I HEARD IN A VERY LOUD VOICE ONE OF THE NEWS MEDIA

20 PEOPLE TALKING ON THE PHONE RELATING THEIR INTERPRETATION OF

21 WHAT THE TESTIMONY IN THE CASE WAS.


22 THE COURT: ALL RIGHT. MR. BOYCE, I CAN CUT YOU RIGHT

23 OFF THERE BECAUSE THAT SHOULD NOT BE OCCURRING. THAT’S THE

24 REASON I’VE GOT THIS ROOM NEXT DOOR, SO I’M NOT SURE WHO’S DOING

25 WHAT, BUT I DON’T WANT TO HAVE ANY MEDIA PERSON COMMUNICATING

26 WITH ANYBODY IN THE HALLWAYS OF THIS COURTROOM. I WENT TO GREAT

27 LENGTHS TO CREATE THIS MECCA OVER HERE FOR THAT VERY REASON. SO

28 I’M GOING TO INSTRUCT MY STAFF, MY BAILIFFS, IF YOU SEE SOMEBODY
4102
1 MAKING A PHONE CALL OUT THERE, SHUT ‘EM OFF. THAT IS FOR

2 BRINGING THAT TO MY ATTENTION. THAT SHOULD NOT OCCUR. ALL

3 RIGHT.


4 MR. BOYCE: ONE OTHER VERY BRIEF NOTE.


5 THE COURT: ALL RIGHT.


6 MR. BOYCE: AND THAT IS, COUNSEL HAS NOTED THAT A COUPLE

7 OF THE WITNESSES CONTACTED ATTORNEYS. WE’RE ENTITLED TO KNOW

8 WHETHER THERE’S BEEN ANY IMMUNITY OFFERED TO EITHER OF THOSE

9 WITNESSES.


10 THE COURT: I DON’T KNOW THAT, BUT ARE YOU GOING TO

11 COMMUNICATE WITH COUNSEL OR DO YOU WANT TO MAKE A STATEMENT OF

12 ANY KIND, MR. DUSEK?

13 MR. DUSEK: NO ONE’S BEEN GIVEN ANY IMMUNITY.


14 THE COURT: SO YOU’RE ENTITLED TO KNOW IF IT, IN FACT,

15 OCCURS, BUT IF IT DOESN’T OCCUR, THERE’S NOTHING TO CHAT ABOUT.


16 MR. FELDMAN: THANK YOU.


17 THE COURT: WE’LL BE IN RECESS TILL 1:30.


18

19 (AT 12:04 P.M. THE NOON RECESS WAS
TAKEN UNTIL 1:30 P.M. OF THE SAME DAY.)
20

21 –O0O–

22

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14 - Day 4- June 10th 2002 - Transcript criminal trial David Westerfield
12 - Day 4- June 10th 2002 - Transcript criminal trial David Westerfield