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

DAY 4 – SAN DIEGO, CALIFORNIA, MONDAY, JUNE 10, 2002 (afternoon 2)


WITNESSES:
Garry Harvey (truck driver, Westerfield’s friend, was at Dad’s cafe on Feb 1st),
Yvette Wetli (nurse, bartender, friend of Westerfield & Garry Harvey, was at Dad’s cafe on Feb 1st 2002)


4175
1 THE COURT: WELCOME BACK, LADIES AND GENTLEMEN.

2 ALL RIGHT. MR. DUSEK.

3 MR. DUSEK: GARRY HARVEY.

4

5 -GARRY HARVEY,+

6 PLAINTIFF’S WITNESS, HAVING BEEN SWORN, TESTIFIED AS FOLLOWS:

7

8 THE COURT: PLEASE HAVE A SEAT, SIR.

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

10 SPELL IT FOR THE RECORD.

11 THE WITNESS: GARRY HARVEY, G-A-R-R-Y, H-A-R-V-E-Y.

12

13 DIRECT EXAMINATION+

14 BY MR. DUSEK:

15 Q. ARE YOU EMPLOYED, MR. HARVEY?

16 A. YES, I AM.

17 Q. WHAT TYPE OF WORK DO YOU DO?

18 A. DRIVING A TRUCK.

19 Q. I WOULD LIKE TO DIRECT YOUR ATTENTION BACK TO

20 FEBRUARY OF THIS YEAR. AT THAT TIME WHERE WERE YOU LIVING?

21 A. IN FALLBROOK.

22 Q. WERE YOU LIVING WITH ANYONE?

23 A. YES.

24 Q. WHO WAS THAT?

25 A. JEFF FEECE.

26 Q. WHO IS HE?

27 A. THAT’S MY ROOMMATE. JUST A FRIEND I’VE KNOWN FOR

28 FOUR OR FIVE YEARS.
4176
1 Q. WHEN YOU DRIVE UP 15 TO GET TO YOUR RESIDENCE UP

2 THERE, WHAT OFFRAMP DO YOU TAKE?

3 A. MISSION.

4 Q. DO YOU KNOW THE DEFENDANT IN THIS CASE, DAVID

5 WESTERFIELD?

6 A. YES, I DO.

7 Q. DO YOU SEE HIM IN COURT TODAY?

8 A. YES. HE’S AT THE DEFENDANT’S TABLE.

9 Q. WEARING WHAT?

10 A. DARK SUIT.

11 MR. DUSEK: MAY THE RECORD REFLECT HE’S IDENTIFIED THE

12 DEFENDANT?

13 THE COURT: CERTAINLY.

14

15 BY MR. DUSEK:

16 Q. HOW LONG HAVE YOU KNOWN HIM, SIR?

17 A. FOUR YEARS.

18 Q. DO YOU RECALL WHERE IT WAS THAT YOU FIRST MET HIM?

19 A. BIG STONE LODGE IN POWAY.

20 Q. WHAT’S THAT?

21 A. IT’S A BAR AND A RESTAURANT AND THEY PLAY COUNTRY

22 MUSIC AND DANCING.

23 Q. IS THAT THE PLACE RANDY JONES USED TO OWN?

24 A. YES. IT’S NO LONGER IN BUSINESS.

25 Q. HOW WAS IT THAT YOU MET HIM THERE?

26 A. I WENT IN WITH A FRIEND TO SHOOT POOL ONE NIGHT,

27 AND HE WAS AT ONE OF THE TABLES, AND I KNEW ONE OF THE PEOPLE

28 THAT HE WAS WITH.
4177
1 Q. IN FEBRUARY OF THIS YEAR DO YOU KNOW WHERE MR.

2 WESTERFIELD LIVED?

3 A. YES.

4 Q. WHERE DID HE LIVE?

5 A. ON MOUNTAIN PASS IN POWAY, SABRE SPRINGS AREA.

6 Q. HOW DO YOU KNOW HE LIVED THERE?

7 A. I WAS THERE THREE TIMES.

8 Q. DO YOU KNOW HOW LONG HE HAD LIVED THERE?

9 A. NOT FOR SURE. APPROXIMATELY FOUR YEARS, I THINK.

10 Q. WHAT TYPE OF VEHICLES DID HE HAVE, TO YOUR

11 KNOWLEDGE?

12 A. TOYOTA 4 RUNNER, MOTOR HOME, A VOLKSWAGEN BUG AND I

13 THINK HE HAS A DUNE BUGGY.

14 Q. IN THE TIME THAT YOU’VE KNOWN HIM HOW MANY MOTOR

15 HOMES HAS HE HAD?

16 A. TWO.

17 Q. DO YOU KNOW WHEN HE GOT THE MOST RECENT ONE?

18 A. NO. I’D SAY PROBABLY SOMETIME DURING THE SUMMER.

19 Q. THIS PAST SUMMER?

20 A. YES.

21 Q. DO YOU KNOW WHERE HE KEPT THAT MOTOR HOME?

22 MR. BOYCE: OBJECTION, MOVE TO STRIKE. SPECULATION, YOUR

23 HONOR.

24 THE COURT: UNLESS IT’S WITHIN YOUR PERSONAL KNOWLEDGE,

25 SIR, YOU MAY ANSWER.

26 THE WITNESS: I DO NOT KNOW FOR SURE.

27 ///

28 ///
4178
1 BY MR. DUSEK:

2 Q. DID MR. WESTERFIELD —

3 MR. BOYCE: MOVE TO STRIKE, YOUR HONOR.

4 THE COURT: “I DO NOT KNOW FOR SURE,” STRIKE? NO. IT

5 WILL STAY. NEXT QUESTION.

6

7 BY MR. DUSEK:

8 Q. DID MR. WESTERFIELD TELL YOU WHERE HE KEPT HIS

9 MOTOR HOME?

10 A. SOMEWHERE OFF OF MIDLAND.

11 Q. IN WHAT CITY?

12 A. IN POWAY.

13 Q. ARE YOU FAMILIAR WITH DAD’S CAFE IN POWAY?

14 A. YES, I AM.

15 Q. HOW DO YOU KNOW THAT PLACE?

16 A. I KNOW THE OWNER OF THE PLACE. I’VE KNOWN HIM FOR

17 ABOUT SIX YEARS.

18 Q. WHAT TYPE OF PLACE IS IT?

19 A. RESTAURANT AND BAR.

20 Q. HOW LONG HAVE YOU BEEN GOING THERE?

21 A. SINCE SEPTEMBER, AFTER BIG STONE LODGE CLOSED DOWN

22 OR — NO, IT WOULD BE IN NOVEMBER SINCE BIG STONE LODGE CLOSED

23 DOWN.

24 Q. NOVEMBER OF 2001?

25 A. YES. I’VE BEEN THERE, YOU KNOW, MANY TIMES BEFORE

26 THAT UNDER DIFFERENT NAMES, THE PLACE IT WAS CALLED.

27 Q. WERE YOU STILL GOING THERE WHEN YOU WERE LIVING IN

28 FALLBROOK?
4179
1 A. YES.

2 Q. ISN’T THAT KIND OF FAR?

3 A. YES.

4 Q. WHY DO YOU KEEP GOING THERE?

5 A. BECAUSE I KNEW A LOT OF PEOPLE THERE FROM — THAT

6 USED TO GO TO BIG STONE LODGE THAT WENT IN THERE.

7 Q. I’D LIKE TO DIRECT YOUR ATTENTION TO I THINK ABOUT

8 THREE DATES; FIRST BEING JANUARY 25TH OF 2002.

9 WERE YOU AT DAD’S THAT EVENING?

10 A. IS THAT A FRIDAY?

11 Q. YES.

12 A. YES.

13 Q. DID YOU MEET UP WITH ANYBODY THERE?

14 A. YES.

15 Q. WHO?

16 A. DAVE CAME IN THERE ABOUT — IT WAS PROBABLY AFTER 9

17 O’CLOCK.

18 Q. WERE YOU INTENDING TO MEET HIM THERE THAT EVENING?

19 A. I’M NOT SURE.

20 Q. WHO GOT THERE FIRST, YOU OR THE DEFENDANT?

21 A. I WAS THERE — ACTUALLY, I WAS WALKING OUT OF THE

22 PARKING LOT, BECAUSE ONE OF THE GIRLS THAT WORKED THERE, ONE OF

23 HER FRIENDS GOT IN AN ACCIDENT. I TOOK HER FRIEND DOWN TO POWAY

24 AND POMERADO ROAD TO THE ACCIDENT, TOOK HER AND HER FRIENDS BACK

25 TO THE HOUSE, AND WENT BACK AND GOT THE GIRL THAT WAS ACTUALLY

26 INVOLVED IN THE ACCIDENT, TOOK HER TO THE HOUSE. WE MET DAVE IN

27 THE PARKING LOT AS WE WERE LEAVING. HE WAS GOING IN.

28 Q. “HE” DAVID WESTERFIELD WAS GOING —
4180
1 A. INTO DAD’S AS WE WERE GOING OUT TO GO TO THE

2 ACCIDENT.

3 Q. AND AFTER YOU COMPLETED THE ACCIDENT WORK DID YOU

4 COME BACK TO DAD’S?

5 A. YES, I DID.

6 Q. DO YOU KNOW HOW LONG THE DEFENDANT WAS AT DAD’S

7 THAT EVENING, IF YOU CAN APPROXIMATE FOR US?

8 A. I’D SAY HE PROBABLY LEFT SOMETIME BETWEEN 11:00,

9 MAYBE 12:00.

10 Q. WHAT TIME DID YOU LEAVE?

11 A. PROBABLY SOMEWHERE AROUND 1:00 OR 2:00.

12 Q. DID YOU KNOW AN INDIVIDUAL BY THE NAME OF BRENDA

13 VAN DAM?

14 A. I HAD MET HER THAT NIGHT.

15 Q. WAS SHE THERE THAT EVENING?

16 A. YES.

17 Q. WAS SHE WITH ANYONE?

18 A. YES.

19 Q. DESCRIBE THE PEOPLE SHE WAS WITH.

20 A. SHE WAS WITH A TALL GIRL, HER NAME WAS BARBARA, AND

21 SHE WAS WITH A DARK HEADED GIRL NAMED DENISE.

22 Q. WHAT WERE THEY DOING?

23 A. THEY CAME TO THE BAR AND WAS HAVING A COUPLE OF

24 DRINKS AND THEN THEY MET SOME OTHER PEOPLE.

25 Q. SEE ‘EM DANCE?

26 A. ON THAT NIGHT, I’M NOT SURE.

27 Q. DID YOU DANCE?

28 A. OH, DENISE DID DANCE THEN. I’M NOT SURE THAT THE
4181
1 OTHER ONES — NO, I DID NOT DANCE.

2 Q. HAVE YOU EVER DANCED AT DAD’S?

3 A. NO, I HAVE NOT.

4 Q. DID YOU SEE WHAT THE DEFENDANT WAS DOING AT DAD’S

5 THAT EVENING?

6 A. HE WAS STANDING AT THE BAR, HAD SOME DRINKS.

7 Q. WHEN YOU LEFT DAD’S THAT EVENING WHERE DID YOU GO?

8 A. I’M NOT SURE IF I WENT TO O’HARLEY’S OR NOT THAT

9 NIGHT AFTER I LEFT THERE OR IF I WENT STRAIGHT HOME.

10 Q. WHAT IS O’HARLEY’S?

11 A. IT’S ANOTHER BAR IN POWAY.

12 Q. ALL RIGHT.

13 NOW, FROM THAT FRIDAY NIGHT/SATURDAY MORNING ON THE

14 25TH, 26TH, WHEN IS THE NEXT TIME YOU HAD CONTACT WITH MR.

15 WESTERFIELD?

16 A. PROBABLY ON WEDNESDAY OF THAT WEEK.

17 Q. WHY DO YOU SAY WEDNESDAY?

18 A. WE WENT TO IN CAHOOTS, MET DOWN THERE.

19 Q. WHERE IS IN CAHOOTS?

20 A. MISSION VALLEY.

21 Q. WHAT IS IT?

22 A. IT’S A BAR/DANCE CLUB.

23 Q. DID YOU MEET UP WITH ANYBODY DOWN THERE?

24 A. I WAS SUPPOSED TO MEET SOME PEOPLE THAT WERE

25 SUPPOSED TO GO DOWN THERE WITH ME AND THEY DECIDED NOT TO GO AT

26 THE LAST MINUTE BECAUSE SOMETHING CAME UP.

27 DAVE WAS GONNA GO DOWN THERE AND HE WAS GONNA MEET

28 SOME PEOPLE FROM WORK THERE OR SOME SUPPLIERS.
4182
1 Q. DID THOSE PEOPLE SHOW UP?

2 A. YES.

3 Q. MALE OR FEMALE?

4 A. THERE WAS TWO FEMALES AND THERE WAS TWO OF THE

5 ROOMMATES — OR NEIGHBORS.

6 Q. AND — IN CAHOOTS?

7 A. YES.

8 Q. DO YOU KNOW THE NAME OF THE NEIGHBORS?

9 A. NO, I DON’T.

10 Q. BRENDA —

11 A. NO, NOT THOSE NEIGHBORS. THEY WERE NEIGHBORS OF

12 THE SUPPLIERS.

13 Q. I GOTCHA.

14 NOW I’D LIKE TO — WELL, FIRST OF ALL, IN CAHOOTS,

15 WHAT TYPE OF A PLACE IS IT?

16 A. COUNTRY BAR DANCING.

17 Q. NOW, I’D LIKE TO MOVE ON TO FEBRUARY 1ST OF THIS

18 YEAR.

19 DID YOU GO TO DAD’S THAT EVENING?

20 A. YES, I DID.

21 Q. WERE THERE ANY PLANS FOR YOU TO MEET ANYONE AT

22 DAD’S?

23 A. YEAH. I WAS SUPPOSED TO MEET DAVE DOWN THERE THAT

24 NIGHT BETWEEN 8:00 AND 8:30.

25 Q. HOW WERE THOSE ARRANGEMENTS MADE?

26 A. BECAUSE WE WERE WORKING OUT SOME BUSINESS DEALS FOR

27 MANUFACTURING SOME PARTS — MY ROOMMATE AND HIS DAD WERE GONNA

28 MANUFACTURE SOME PARTS FOR HIM. AND AFTER THEY GOT FINISHED
4183
1 TALKING TO HIM ON THE PHONE, DAVE TALKED TO ME ON THE PHONE AND

2 ASKED ME IF I WAS GOING DOWN THERE THAT NIGHT, AND I TOLD HIM

3 YES, I’D BE DOWN THERE PROBABLY AROUND 8:00 OR 8:30.

4 Q. SO YOUR CONVERSATION WITH THE DEFENDANT WAS MAKING

5 ARRANGEMENTS TO MEET AT DAD’S?

6 A. YEAH. I WAS GONNA MEET HIM THERE.

7 Q. WHEN WERE YOU GOING TO GET THERE?

8 A. BETWEEN 8:00 AND 8:30.

9 Q. AND THE DEFENDANT, WHEN DID HE SAY HE’D BE THERE?

10 A. HE DIDN’T.

11 Q. ALL RIGHT.

12 WHO GOT THERE FIRST?

13 A. HE DID.

14 Q. ABOUT WHAT TIME DID YOU ARRIVE?

15 A. ABOUT 8:30.

16 Q. DID YOU GO WITH ANYBODY?

17 A. NO.

18 Q. HOW ABOUT YOUR ROOMMATE, JEFF FEECE, DID HE GO?

19 A. HE CAME DOWN THERE ABOUT — I THINK HE GOT THERE

20 ABOUT 9:15.

21 Q. SO IT WAS AFTER YOU?

22 A. YES.

23 Q. DID HE COME ALONE OR WITH SOMEONE?

24 A. BY HIS SELF.

25 Q. IN WHICH CAR?

26 A. IN HIS MUSTANG.

27 Q. DID YOU COME WITH ANYBODY?

28 A. NO.
4184
1 Q. WHEN YOU GOT THERE WHERE DID YOU GO?

2 A. WHAT DO YOU MEAN? AFTER I LEFT DAD’S?

3 Q. NO. AFTER YOU LEFT HOME AND ENDED UP AT DAD’S AND

4 YOU GOT TO DAD’S, WHERE DID YOU GO INSIDE?

5 A. I WENT TO THE BAR AND — THE LEFT SIDE OF THE BAR,

6 AND DAVE WAS THERE AND THAT’S WHERE I USUALLY NORMALLY SIT

7 AND —

8 Q. LET ME DIRECT YOUR ATTENTION TO THE PHOTOBOARD WE

9 HAVE BEHIND YOU, EXHIBIT 31. THE NUMBER’S IN THE LOWER RIGHT

10 HAND CORNER. IT’S LABELED AT THE TOP “DAD’S CAFE AND STEAK

11 HOUSE.” DO YOU SEE WHAT I’M REFERRING TO?

12 A. YES.

13 Q. PHOTOGRAPH “A”, WHAT DOES THAT SHOW US?

14 A. THE PARKING LOT AND THE BUILDING.

15 Q. PHOTOGRAPH “B”, WHAT DO WE SEE IN THERE?

16 A. INSIDE OF THE BAR.

17 Q. DO YOU SEE THE BAR IN THAT PHOTOGRAPH?

18 A. YES.

19 Q. WHAT SIDE OF THE PHOTOGRAPH? LEFT OR RIGHT, IN THE

20 MIDDLE?

21 A. LEFT.

22 Q. THE BAR ITSELF?

23 A. THE BAR ITSELF IS ON THE LEFT.

24 Q. DID YOU SEE WHERE YOU WENT ON THAT PHOTOGRAPH?

25 A. YES.

26 Q. WHERE? I THINK THERE MIGHT BE A POINTER THERE.

27 A. RIGHT HERE TO THIS CORNER.

28 Q. THAT WOULD BE THE CORNER CLOSEST TO THE CAMERAMAN
4185
1 ABOUT WHERE YOU’RE POINTING TO, THE FIRST RED SEAT?

2 A. YES.

3 Q. WHERE WAS THE DEFENDANT?

4 A. IN THE NEXT SEAT OVER.

5 Q. DID YOU SEE ANYBODY ELSE THERE THAT YOU RECOGNIZED?

6 A. A LOT OF PEOPLE. I KNOW A LOT OF PEOPLE THAT GO IN

7 THERE.

8 Q. ALL RIGHT.

9 BRENDA VAN DAM, DID YOU SEE HER THERE?

10 A. THEY CAME IN SHORTLY BEFORE THE BAND STARTED.

11 Q. AND YOU GOT THERE ABOUT WHAT TIME?

12 A. ABOUT 8:30.

13 Q. AND THE BAND STARTED ABOUT WHAT TIME?

14 A. 9 O’CLOCK.

15 Q. DID BRENDA VAN DAM COME IN ALONE OR WITH ANYONE?

16 A. SHE CAME IN WITH DENISE AND BARBARA.

17 Q. WHERE DID THEY GO?

18 A. CAME UP TO THE BAR ON THE OPPOSITE SIDE OF DAVE.

19 Q. AND DID WHAT?

20 A. I THINK ORDERED A DRINK.

21 Q. WAS THERE ANY INTERACTION BETWEEN YOU AND THE

22 DEFENDANT AND BRENDA VAN DAM AND HER FRIENDS?

23 A. EVERYBODY JUST SAID HI.

24 Q. WHAT DID BRENDA VAN DAM AND HER FRIENDS DO AFTER

25 THEY GOT THEIR DRINKS?

26 A. ORDERED DRINKS, STARTED TALKING, AND THEN WE

27 STARTED TALKING TO ‘EM. WE WERE TALKING ABOUT THE WAY THAT

28 DENISE WAS DANCING THE WEEK BEFORE.
4186
1 Q. OKAY.

2 DID ANYBODY BUY ANYONE DRINKS?

3 A. I THINK DAVE MIGHT HAVE BOUGHT ‘EM A ROUND THAT

4 NIGHT.

5 Q. HOW QUICKLY?

6 A. I DON’T KNOW IF IT WAS THAT ROUND OR MAYBE THE NEXT

7 ONE.

8 Q. WHAT WERE YOU DRINKING, SIR?

9 A. BACARDI AND COKE.

10 Q. WHAT SIZE?

11 A. TALL.

12 Q. CAN YOU GIVE US OUNCES HOW BIG A DRINK A TALL IS?

13 A. I DON’T KNOW, PROBABLY ABOUT SIX OR EIGHT OUNCES.

14 Q. WHAT’S THE NEXT THING THAT YOU RECALL HAPPENING?

15 A. A LITTLE BIT LATER JEFF CAME IN AND WE TALKED FOR A

16 COUPLE OF MINUTES, AND THEN SOMEBODY WANTED TO SHOOT POOL, SO —

17 I’M NOT SURE WHO INITIATED THAT CONVERSATION BUT WE ALL WENT

18 OVER — OR BRENDA, DENISE, ME AND JEFF WENT OVER AND SHOT POOL.

19 Q. AGAIN, LET ME DIRECT YOUR ATTENTION TO EXHIBIT 31

20 BEHIND YOU.

21 DO YOU SEE THE AREA WHERE THE POOL TABLES ARE?

22 A. YES.

23 Q. WHICH PHOTOGRAPH?

24 A. IT’S “D”.

25 Q. AND THERE ARE TWO TABLES IN THAT PHOTOGRAPH, TWO

26 POOL TABLES, CORRECT?

27 A. YES.

28 Q. DO YOU REMEMBER WHICH ONE YOU WERE PLAYING ON?
4187
1 A. YES, THIS ONE RIGHT HERE.

2 Q. WHICH IS THE CLOSEST TO THE CAMERA?

3 A. YES.

4 Q. WERE YOU AWARE WHO WAS PLAYING ON THE SECOND TABLE?

5 A. NO, I’M NOT.

6 Q. HOW WERE THE TEAMS ALIGNED ON THE TABLE YOU WERE

7 ON?

8 A. THE FIRST TWO GAMES IT WAS DENISE AND I AGAINST

9 JEFF AND BRENDA. THE LAST GAME WAS BRENDA AND I AGAINST JEFF

10 AND DENISE.

11 Q. HOW DID YOU DO?

12 A. I LOST ALL THE GAMES.

13 Q. WAS THERE ANY DRINKING GOING ON WHILE YOU GUYS WERE

14 PLAYING POOL?

15 A. YES.

16 Q. HOW LONG DID THE GAMES TAKE?

17 A. PROBABLY A COUPLE OF HOURS BECAUSE IN BETWEEN

18 PEOPLE SHOOTING, PEOPLE WERE GOING OFF IN DIFFERENT DIRECTIONS,

19 THEN TALKING, COMING BACK, SHOOTING.

20 Q. DID YOU GUYS HAVE TO GIVE UP THE TABLES ONCE YOU

21 STARTED PLAYING POOL?

22 A. NO.

23 Q. HOW ABOUT THE DEFENDANT, WHERE WAS HE OR WHAT WAS

24 HE DOING DURING THAT?

25 A. I’M NOT REALLY SURE. I SAW HIM AT THE BAR. TWICE

26 I LOOKED OVER AT THAT DIRECTION HE WAS AT THE BAR.

27 Q. WAS HE OVER IN THE POOL TABLE ROOM, AS FAR AS YOU

28 COULD TELL?
4188
1 A. NO.

2 Q. WAS THERE ANYTHING UNUSUAL GOING ON IN THE POOL

3 ROOM?

4 A. NO.

5 Q. ANY PROVOCATIVE ACTIONS OR PEOPLE COMING ON TO EACH

6 OTHER?

7 A. NO, NOT THAT I SAW.

8 Q. WERE YOU INTERESTED IN ANY OF THE FEMALES THERE?

9 A. NO.

10 Q. WHAT WERE YOU DOING?

11 A. SHOOTING POOL, RELAXING, LISTENING TO MUSIC.

12 Q. DID YOU KNOW THE BAND?

13 A. I THINK THEY PLAYED THERE A FEW TIMES.

14 Q. WHEN THEY START PLAYING HOW LOUD DO THEY GET?

15 A. PRETTY LOUD.

16 Q. ARE YOU ABLE TO TALK WHEN THEY’RE PLAYING LIKE

17 WE’RE TALKING HERE?

18 A. YOU HAVE TO SPEAK UP.

19 Q. WHY?

20 A. BECAUSE OF THE LOUD NOISES.

21 Q. ONCE YOU FINISHED PLAYING POOL, ARE YOU ABLE TO

22 ESTIMATE ABOUT WHAT TIME THAT WAS?

23 A. I’D SAY SOMETIME BETWEEN 11:30 AND 12:00.

24 Q. WERE YOU PAYING ATTENTION TO THE TIME?

25 A. NO, I WAS NOT.

26 Q. WHY NOT?

27 A. DIDN’T MATTER.

28 Q. ALL RIGHT.
4189
1 DID YOU HAVE A WATCH ON?

2 A. NO, I DIDN’T. I HAD A CELL PHONE THAT HAS THE TIME

3 ON IT.

4 Q. DID YOU REMEMBER CHECKING THAT, WHATEVER TIME IT

5 WAS AFTER YOU WERE DONE?

6 A. NO.

7 Q. IS THERE A CLOCK IN THE BAR THAT IS ACCESSIBLE TO

8 EVERYBODY?

9 A. YEAH, THERE’S ONE OVER BY THE BAR I DO BELIEVE BUT

10 I DIDN’T LOOK AT IT. I DIDN’T GO BACK OVER TO THE BAR.

11 Q. ONCE YOU FINISHED PLAYING POOL WHERE DID YOU GO?

12 A. I WALKED OUT THE FRONT DOOR AND THEN WENT TO

13 O’HARLEY’S.

14 Q. DO YOU KNOW IF DAVID WESTERFIELD WAS STILL AT DAD’S

15 WHEN YOU WENT TO O’HARLEY’S?

16 A. YES, HE WAS.

17 Q. HOW DO YOU KNOW?

18 A. ‘CAUSE I SAW HIM AT THE BAR.

19 Q. WAS HE WITH ANYONE?

20 A. NO.

21 Q. WHERE IS O’HARLEY’S?

22 A. IT’S ABOUT THREE MINUTES AWAY ON POWAY ROAD.

23 Q. FURTHER EAST ON POWAY ROAD?

24 A. YES.

25 Q. WHY WERE YOU GOING —

26 A. POWAY AND COMMUNITY. POWAY AND COMMUNITY ROADS.

27 Q. WHY WERE YOU GOING THERE?

28 A. TO SEE YVETTE, TO SEE WHAT TIME SHE WAS GETTING OFF
4190
1 THAT NIGHT.

2 Q. WHO’S YVETTE?

3 A. SHE IS A FRIEND OF MINE.

4 Q. HOW GOOD A FRIEND?

5 A. I’VE KNOWN HER ABOUT SIX YEARS.

6 Q. IS SHE YOUR GIRLFRIEND?

7 A. NO. WE DO THIS EVERY WEEK.

8 Q. WHICH IS WHAT, WHAT DO YOU DO?

9 A. SOMETIMES WE GO DOWN TO DAD’S. SOMETIMES WE DON’T.

10 SO I WAS JUST SEEING IF SHE WAS GOING DOWN THERE THAT NIGHT. IF

11 SHE WAS, I WAS GONNA GO BACK DOWN THERE WITH HER. IF SHE

12 WASN’T, THEN I WAS GONNA GO BACK HOME.

13 Q. SHE WORKS AT O’HARLEY’S?

14 A. YES, SHE DOES.

15 Q. WHAT DOES SHE DO THERE?

16 A. SHE’S A WAITRESS — OR A BARTENDER.

17 Q. DO YOU KNOW WHAT TIME SHE GETS OFF?

18 A. IT VARIES, DEPENDING ON HOW BUSY THEY ARE.

19 Q. YOU DROVE YOUR CAR TO O’HARLEY’S?

20 A. YES, I DID.

21 Q. WHAT HAPPENED WHEN YOU GOT THERE?

22 A. I WENT IN THERE AND SHE WAS JUST FINISHING UP, AND

23 I HELPED HER CLEAN UP, TOOK ABOUT 45 MINUTES, AND THEN WE LEFT

24 THERE AND WENT BACK DOWN TO DAD’S.

25 Q. WHO DROVE BACK DOWN TO DAD’S?

26 A. YVETTE DROVE ME DOWN THERE.

27 Q. WHY?

28 A. SHE ASKED TO JUST TAKE ONE CAR.
4191
1 Q. HOW MUCH HAD YOU HAD TO DRINK THAT EVENING?

2 A. I HAD PROBABLY FOUR DRINKS BEFORE I WENT DOWN

3 THERE.

4 Q. OVER WHAT PERIOD OF TIME?

5 A. ABOUT THREE AND A HALF, FOUR HOURS.

6 Q. HOW WERE YOU FEELING?

7 A. FINE.

8 Q. WHEN YOU RETURNED TO DAD’S, ARE YOU ABLE TO

9 ESTIMATE FOR US ABOUT WHAT TIME IT WAS?

10 A. WHEN I RETURNED TO DAD’S?

11 Q. YES, WITH YVETTE.

12 A. IT HAD TO HAVE BEEN ABOUT 12:30, SOMEWHERE AROUND

13 THERE.

14 Q. AND AGAIN, ARE YOU ESTIMATING THAT OR ARE YOU

15 TELLING US THAT BECAUSE YOU REMEMBER LOOKING AT A CLOCK SOMETIME

16 DURING THAT PERIOD?

17 A. JUST ESTIMATING.

18 Q. WHERE DID YVETTE PARK HER CAR, DO YOU REMEMBER?

19 A. PULLED IN THE PARKING LOT. I DO BELIEVE IT WAS

20 ABOUT THE FOURTH OR FIFTH PARKING LOT (SIC) STRAIGHT IN ON THE

21 RIGHT. YOU PULL STRAIGHT IN THE DRIVEWAY — OR PULL IN THE

22 DRIVEWAY, PARK ON THE LEFT.

23 Q. AS WE LOOK AT 31 BEHIND YOU, AND I SUPPOSE PHOTO

24 “A” WOULD SHOW MOST OF THE PARKING LOT, IS THAT —

25 A. YEAH. IT WAS RIGHT IN THIS AREA, RIGHT PAST THIS

26 CAR HERE, IN THAT AREA I DO BELIEVE.

27 Q. WHICH IS ON THE EXTREME LEFT-HAND SIDE OF THAT

28 PHOTOGRAPH?
4192
1 A. YES.

2 Q. ONCE YOU GOT THERE WHERE DID YOU GO?

3 A. I WENT STRAIGHT TO THE BAR.

4 Q. HOW ABOUT YVETTE, WHERE DID SHE GO?

5 A. SHE CAME UP THERE WITH ME.

6 Q. DO YOU REMEMBER IF THE DEFENDANT WAS THERE WHEN YOU

7 GOT BACK TO DAD’S?

8 A. I DIDN’T SEE HIM.

9 Q. WERE YOU IN THE AREA WHERE HE WOULD CUSTOMARILY

10 HANG OUT?

11 A. YES.

12 Q. HOW LONG WOULD YOU SAY YOU REMAINED AT DAD’S ONCE

13 YOU RETURNED WITH YVETTE?

14 A. ABOUT AN HOUR.

15 Q. DOING WHAT?

16 A. HOUR AND A HALF. I SAT AT THE BAR DRINKING,

17 TALKING TO THE BARTENDER. YVETTE WENT TO TALK TO SOME OTHER

18 PEOPLE THAT SHE KNOWS, AND WATCHING TV.

19 Q. WHAT WERE THE OTHER PEOPLE DOING IN THE BAR?

20 A. JUST CARRYING ON CONVERSATIONS, DANCING, LISTENING

21 TO MUSIC.

22 Q. WAS THE BAND STILL PLAYING?

23 A. I DO BELIEVE IT WAS.

24 Q. DO YOU REMEMBER IF BRENDA VAN DAM AND HER TWO

25 FRIENDS WERE STILL THERE?

26 A. YES, THEY WERE.

27 Q. WHAT WERE THEY DOING?

28 A. THEY WERE IN A DIFFERENT ROOM.
4193
1 Q. WHAT DO YOU MEAN A DIFFERENT ROOM?

2 A. THEY WERE NOT AT THE BAR, SO THEY’RE IN — THEY

3 COULD HAVE BEEN IN THE SMOKING ROOM, THE POOL ROOM, ONE OF THE

4 OTHER ROOMS. I DIDN’T SEE ‘EM AT THAT TIME. THEY CAME UP TO

5 THE BAR — OR BARBARA CAME UP TO THE BAR AND THEN, YOU KNOW, I

6 DIDN’T SEE HER AGAIN FOR A WHILE.

7 Q. DID YOU THAT EVENING EVER SEE BRENDA VAN DAM DANCE?

8 A. NO, I DIDN’T.

9 Q. DID YOU EVER SEE BARBARA DANCE THAT EVENING, THE

10 TALL GAL?

11 A. NO, I DIDN’T.

12 Q. HOW ABOUT DENISE, THE SHORTER GAL, DID YOU SEE HER

13 DANCE?

14 A. ON THAT NIGHT I DON’T THINK SHE DID. I DON’T THINK

15 I SAW HER. THE WEEK BEFORE I SAW HER. I REALLY WASN’T PAYING A

16 LOT OF ATTENTION.

17 Q. SHE WAS DOING A LOT OF DANCING THE WEEK BEFORE?

18 A. YES.

19 Q. WERE YOU AWARE OF BRENDA VAN DAM AND HER FRIENDS

20 LEAVING DAD’S THAT EVENING?

21 A. YES.

22 Q. BEFORE OR AFTER YOU?

23 A. BEFORE. I DON’T KNOW IF THEY LEFT OR NOT BUT

24 THAT’S WHEN THEY SAID THEY WERE LEAVING. THEY WALKED AWAY FROM

25 THE BAR THEN.

26 Q. HOW WAS IT THAT YOU CAME TO LEAVE?

27 A. ABOUT THE TIME THE BAR CLOSED.

28 Q. IS THERE SOME SORT OF SIGN?
4194
1 A. YEAH. THEY CALL LAST CALL AND TURN THE LIGHTS ON.

2 Q. THEN WHAT DID YOU DO?

3 A. YVETTE AND I LEFT. SHE TOOK ME DOWN TO MY CAR. I

4 FOLLOWED HER — WHICH WAS DOWN AT O’HARLEY’S. I FOLLOWED HER

5 TO — TOWARDS ESCONDIDO.

6 Q. HOW LONG WOULD YOU SAY IT TOOK TO GET FROM DAD’S TO

7 O’HARLEY’S?

8 A. ABOUT THREE MINUTES.

9 Q. DID YOU DO ANY CHATTING ONCE YOU GOT UP THERE?

10 A. NOT REALLY.

11 Q. FROM THERE WHERE DID YOU GO? DO YOU REMEMBER THE

12 ROUTE THAT YOU TOOK?

13 A. YEAH. WE TOOK COMMUNITY ROAD TO TWIN PEAKS TO GET

14 TO POMERADO, TOOK A RIGHT, TOOK POMERADO TO 15 WHICH IS UP BY

15 LAKE HODGES.

16 Q. WERE YOU LEADING OR WAS SHE?

17 A. SHE WAS.

18 Q. HOW LONG DO YOU THINK IT TOOK YOU TO GET UP TO LAKE

19 HODGES/POMERADO?

20 A. TEN MINUTES.

21 Q. WHAT HAPPENED WHEN YOU GOT UP THERE?

22 A. THEY HAD SOME CONSTRUCTION GOING ON THERE WHERE

23 THEY HAVE THE CONES OUT AND SHE MISSED THE TURN.

24 Q. DID YOU?

25 A. NO, I DIDN’T.

26 Q. WHERE DID YOU GO ONCE YOU GOT ON THE FREEWAY?

27 A. I WENT NORTH TOWARDS FALLBROOK. I STOPPED AT DEER

28 SPRINGS ROAD AND — NORTH OF ESCONDIDO, AND I WENT IN THERE AND
4195
1 BOUGHT A BAG OF POTATO CHIPS.

2 Q. THEN WHAT?

3 A. THEN I WENT HOME.

4 Q. WHERE WAS JEFF WHEN YOU GOT HOME?

5 A. HE WAS ALREADY HOME.

6 Q. HOW DO YOU KNOW?

7 A. HIS CAR WAS THERE.

8 Q. AND DID YOU SEE WHERE YVETTE GOT OFF THE FREEWAY?

9 A. SHE GETS OFF AT WHERE THE MALL IS.

10 Q. THE NORTH COUNTY MALL?

11 A. YES, NORTH COUNTY MALL.

12 Q. DO YOU KNOW WHERE BRENDA VAN DAM — OR AT THAT TIME

13 DID YOU KNOW WHERE BRENDA VAN DAM LIVED?

14 A. NO. I JUST KNEW SHE WAS A NEIGHBOR OF DAVE’S.

15 Q. BUT YOU DON’T KNOW WHICH ONE?

16 A. NO.

17 Q. DO YOU KNOW IF THE DEFENDANT, SINCE YOU’VE KNOWN

18 HIM, HAS HAD ANY DOGS?

19 A. NO.

20 Q. NO, YOU DON’T KNOW OR NO, HE HASN’T?

21 A. NO, I DON’T KNOW.

22 Q. HAVE YOU BEEN TO HIS HOUSE?

23 A. YES, I HAVE.

24 Q. OVER WHAT PERIOD OF TIME?

25 A. OVER A TWO YEAR PERIOD, I WAS PROBABLY THERE THREE

26 TIMES.

27 Q. OVER THAT PERIOD OF TIME HAVE YOU EVER SEEN A DOG

28 AT HIS HOUSE?
4196
1 A. NO, I HAVEN’T.

2 Q. WHEN DID YOU FIRST HEAR ABOUT THIS CASE, SIR?

3 A. ON TUESDAY MORNING.

4 Q. WHY SO LONG?

5 A. WE DON’T HAVE LOCAL CHANNELS ON OUR TELEVISION

6 WHERE WE LIVE.

7 Q. SO HOW DID YOU —

8 A. I READ ABOUT — OR I WAS SCANNING THROUGH THE PAPER

9 AND SAW THERE WERE, YOU KNOW — THERE WAS A GIRL THAT WAS

10 MISSING, BUT I DIDN’T PAY ATTENTION TO IT. I DIDN’T READ THE

11 STORY OR ANYTHING.

12 ON TUESDAY, I WENT TO BREAKFAST AT A RESTAURANT IN

13 RAINBOW, AND ON THE WAY HOME I HEARD ABOUT IT ON THE RADIO, THAT

14 THEY HAD JUST CONFISCATED A VEHICLE FROM — IT WAS A BLACK 4

15 RUNNER ON MOUNTAIN PASS DRIVE ON SABRE SPRINGS, AND IT WAS A 49

16 YEAR-OLD MAN.

17 Q. SO YOU KIND OF PUT TWO AND TWO TOGETHER?

18 A. YES.

19 Q. WERE YOU CONTACTED BY LAW ENFORCEMENT REGARDING

20 YOUR ACTIVITIES ON THE EVENING OF FEBRUARY 1ST AND 2ND?

21 A. NO, I WAS NOT. OR NOT UNTIL — NOT UNTIL THE

22 FOLLOWING WEEK.

23 Q. ALL RIGHT.

24 A. IT WAS LIKE — I THINK IT WAS WEDNESDAY.

25 Q. DID THEY INTERVIEW YOU SEVERAL TIMES?

26 A. YES, THEY DID.

27 Q. DID YOU SPEAK WITH THEM?

28 A. YES, I DID.
4197
1 Q. DID THEY COME SEARCH OR EXAMINE YOUR RESIDENCE?

2 A. YES, TWICE.

3 Q. DID YOU LET ‘EM?

4 A. YES, WE DID.

5 Q. HOW DID THEY SEARCH THE HOUSE OR —

6 A. THE FIRST TIME THEY CAME IN THERE WAS A NUMBER OF

7 THEM THAT WERE THERE. THEY CAME UP AND SEARCHED THROUGH MY

8 ROOM. WE HAD TO STAY OUTSIDE. THEY SEARCHED THE PROPERTY. AND

9 THE SECOND TIME THEY CAME WITH HELICOPTERS AND DOGS.

10 MR. DUSEK: THANK YOU, SIR.

11 NO FURTHER QUESTIONS.

12 THE COURT: ALL RIGHT. CROSS-EXAMINATION.

13 MR. BOYCE: THANK YOU, YOUR HONOR.

14

15

16 CROSS-EXAMINATION+

17 BY MR. BOYCE:

18 Q. GOOD AFTERNOON, MR. HARVEY.

19 YOU LIVE WITH A PERSON BY THE NAME OF JEFF FEECE?

20 A. YES.

21 Q. YOU’VE KNOWN MR. WESTERFIELD FOR ABOUT FOUR YEARS,

22 I BELIEVE YOU TOLD US?

23 A. YES.

24 Q. AND YOU HAVE A BUSINESS RELATIONSHIP WITH MR.

25 WESTERFIELD, DON’T YOU?

26 A. NO, I DON’T. THE PEOPLE I LIVE WITH DO, THAT I WAS

27 KIND OF HELPING, YOU KNOW, THE TWO OF THEM ALONG.

28 Q. YOU WERE HELPING THEM IN SOME BUSINESS?
4198
1 A. TALKING TO JEFF AND TALKING TO DAVE.

2 Q. AND WHAT IS THAT BUSINESS RELATIONSHIP BETWEEN JEFF

3 FEECE AND MR. WESTERFIELD, TO YOUR KNOWLEDGE?

4 A. THEY WORKED OUT A CONTRACT ON THAT FRIDAY, I GUESS

5 IT WAS FEBRUARY 1ST, THEY HAD ALREADY — THEY HAD ALREADY BID ON

6 ANOTHER JOB PREVIOUS TO THAT AND THEIR BIDS WERE TOO HIGH.

7 Q. IN OTHER WORDS, MR. FEECE SUBCONTRACTS WITH MR.

8 WESTERFIELD TO DO SOME OF HIS ENGINEERING PROJECTS?

9 A. DAVE’S A DESIGNER AND THEY’RE A MACHINE SHOP.

10 Q. WERE YOU FAMILIAR WITH MR. WESTERFIELD’S PATENTS

11 THAT HE HAD?

12 MR. DUSEK: OBJECTION, IRRELEVANT, 3352.

13 THE COURT: SUSTAINED. YOU NEED NOT ANSWER.

14

15 BY MR. BOYCE:

16 Q. ANYWAY, YOU BECAME INVOLVED WITH MR. WESTERFIELD

17 AND MR. FEECE’S BUSINESS CONTRACTS, IS THAT RIGHT?

18 A. NO. I JUST TALKED TO THEM ABOUT IT A LITTLE BIT.

19 I WASN’T ACTUALLY INVOLVED IN IT.

20 Q. HAVE YOU EVER BEEN OVER TO MR. WESTERFIELD’S HOUSE?

21 A. YES, I HAVE.

22 Q. IN FACT, YOU WERE OVER THERE THREE WEEKS BEFORE THE

23 FEBRUARY 1ST BARBEQUE?

24 A. YES.

25 Q. DID YOU — YOU’VE MET HIS GIRLFRIENDS, HAVEN’T YOU?

26 MR. DUSEK: OBJECTION, IRRELEVANT, 352.

27 THE WITNESS: YES.

28 THE COURT: OVERRULED. THE ANSWER WAS YES. IT WILL
4199
1 STAND.

2

3 BY MR. BOYCE:

4 Q. DID YOU KNOW SUSAN LELEK?

5 A. YES.

6 Q. THAT WAS SOMEONE THAT WAS A GIRLFRIEND THAT WAS

7 LIVING WITH MR. WESTERFIELD?

8 MR. DUSEK: OBJECTION, IRRELEVANT.

9 THE COURT: SUSTAINED.

10 YOU NEED NOT ANSWER.

11 MR. BOYCE: IT’S FOUNDATIONAL, YOUR HONOR. I’LL TIE IT

12 UP WITH TWO MORE QUESTIONS.

13 THE COURT: AT THIS POINT THEN I’M NOT SURE — I DON’T

14 WANT TO GET INTO SOMETHING I’M GOING TO REGRET.

15 SIDE BAR.

16 (THE FOLLOWING PROCEEDINGS WERE HELD
AT THE BENCH BETWEEN COURT AND COUNSEL:)
17

18 THE COURT: ALL RIGHT. MR. BOYCE, MAKE YOUR OFFER OF

19 PROOF SO I HAVE SOME IDEA WHERE WE’RE GOING.

20 MR. BOYCE: ON DIRECT HE WAS ASKED IF HE KNEW WHETHER OR

21 NOT MR. WESTERFIELD HAD A DOG. WELL, MR. WESTERFIELD WAS LIVING

22 WITH SUSAN LELEK. SHE HAD A DOG THAT THEY WOULD TAKE IN THE

23 MOTOR HOME WITH THEM, AND ALSO WAS OVER AT THE HOUSE. AND I WAS

24 GOING TO ASK HIM IF HE WAS AWARE THAT MS. SUSAN LELEK HAD A DOG.

25 MR. DUSEK: IF HE’S AWARE, IT HAS TO BE BECAUSE SOMEBODY

26 TOLD HIM, BECAUSE HE SAID NEVER SAW A DOG IN THE HOUSE.

27 THE COURT: AT THIS POINT IN TIME THE STATE OF THE

28 EVIDENCE IS HE NEVER SAW A DOG OVER THERE. NOW, THAT MAY MEAN
4200
1 THAT HE JUST NEVER SAW ONE, BUT HOW ARE YOU GONNA — I MEAN,

2 WHAT’S THE RELEVANCE OF IS HE AWARE OF SOMETHING?

3 MR. BOYCE: I BELIEVE THE QUESTION MR. DUSEK ASKED WAS

4 DID HE HAVE A DOG. THIS WAS SUSAN LELEK’S DOG.

5 THE COURT: ALL RIGHT. YOU CAN CLEAR IT UP. I BELIEVE

6 THE QUESTION WAS DID HE EVER SEE A DOG OVER THERE. SO THE

7 QUESTION YOU’LL BE PERMITTED TO ASK IS DID HE EVER SEE A DOG OR

8 ANY INDICATION OF A DOG AT THE HOUSE, BUT THAT’S IT.

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

11 BY MR. BOYCE:

12 Q. WHEN YOU WERE OVER AT MR. WESTERFIELD’S HOUSE ON

13 THESE OCCASIONS, DID YOU EVER SEE A DOG?

14 A. NO, I DID NOT.

15 Q. THE BARBEQUE THAT YOU WERE AT ABOUT THREE WEEKS

16 BEFORE THIS OCCURRED, WAS MR. FEECE AT THAT BARBEQUE ALSO?

17 A. YES, HE WAS.

18 Q. ON JANUARY 25TH, ABOUT WHAT TIME DID YOU ARRIVE AT

19 DAD’S BAR?

20 A. I’M NOT SURE. PROBABLY AROUND 8:30.

21 Q. AND DID YOU TELL US THAT MR. WESTERFIELD ARRIVED

22 AFTER YOU HAD GOTTEN THERE?

23 A. YES.

24 Q. WAS BRENDA AND HER FRIENDS AT THE BAR OR DID THEY

25 ARRIVE AFTER YOU?

26 A. THEY ARRIVED AFTERWARDS. THEY ARRIVED AFTER I GOT

27 BACK FROM THAT ACCIDENT.

28 Q. THIS IS ON THE 25TH OF JANUARY?
4201
1 A. YES.

2 Q. BRENDA CAME UP TO YOU AND INTRODUCED HERSELF?

3 A. NO. SHE WALKED UP BEHIND US TO THE BAR TO GET A

4 DRINK AND DAVID ASKED HER, YOU KNOW, AREN’T YOU MY NEIGHBOR?

5 Q. AND THEN DID BRENDA INTRODUCE HERSELF TO YOU?

6 A. YES.

7 Q. THE GIRLS, MEANING BRENDA AND HER FRIENDS, REMAINED

8 AT THE BAR FOR A WHILE, IS THAT RIGHT?

9 A. YES.

10 Q. AND YOU WATCHED THEM, THEIR ACTIVITIES AROUND THE

11 BAR?

12 A. WE WERE LISTENING TO MUSIC AT THE BAR AND THEY WERE

13 STILL AT THE BAR. I COULDN’T HEAR A LOT OF WHAT WAS GOING ON.

14 Q. I BELIEVE YOU DESCRIBED THEM AS FLIRTING AROUND THE

15 BAR WITH DIFFERENT PEOPLE AND THEY WERE INTOXICATED?

16 A. THAT WAS LATER ON IN THE EVENING.

17 Q. BUT THAT WAS ON THE 25TH, IS THAT RIGHT?

18 A. YES.

19 Q. YOU DESCRIBED DENISE AS DANCING THAT NIGHT?

20 A. YES.

21 Q. SHE’S THE DARK HAIRED GIRL, IS THAT RIGHT?

22 A. YES.

23 Q. WAS SHE DANCING IN A PROVOCATIVE MANNER?

24 A. YES, SHE WAS.

25 Q. THIS WAS BRINGING ATTENTION FROM OTHER PEOPLE IN

26 THE BAR, IS THAT RIGHT?

27 A. YES.

28 Q. AND THIS WAS AT DAD’S?
4202
1 A. YES.

2 Q. HOW — WHAT WAS SHE DOING THAT CAUSED YOU TO

3 BELIEVE IT WAS PROVOCATIVE?

4 A. PROBABLY THE CLOSENESS, YOU KNOW, AND RUBBING UP

5 AGAINST EACH OTHER THE WAY THEY WERE DOING IT.

6 Q. WITH THE PERSON SHE WAS DANCING WITH?

7 A. YES.

8 Q. WAS SHE KISSING THE PERSON SHE WAS DANCING WITH ON

9 THE DANCE FLOOR?

10 A. I’M NOT SURE.

11 Q. DID YOU HEAR ANYONE ELSE IN THE VICINITY COMMENTING

12 ON THE WAY THEY WERE DANCING?

13 MR. DUSEK: OBJECTION, HEARSAY, RELEVANCY.

14 THE COURT: THAT CAN BE ANSWERED YES OR NO. NOT WHAT YOU

15 HEARD, BUT DID YOU HEAR CONVERSATION.

16 THE WITNESS: NOT REALLY THAT NIGHT. THE NEXT WEEK I

17 DID.

18

19 BY MR. BOYCE:

20 Q. COMMENTING ABOUT DENISE, THE WAY SHE WAS DANCING?

21 A. YES.

22 Q. THE NEXT WEEK BEING FEBRUARY 1ST, YOU AGAIN WERE AT

23 DAD’S?

24 A. YES, I WAS.

25 Q. AND BRENDA AND THE SAME TWO GIRLFRIENDS WERE AGAIN

26 AT DAD’S?

27 A. YES.

28 Q. THEY WERE AGAIN MOVING AROUND IN A FLIRTATIOUS
4203
1 MANNER?

2 A. NO, NOT WHEN I WAS THERE. I DIDN’T SEE IT ANYWAYS.

3 Q. WERE THEY GETTING INTOXICATED?

4 A. YEAH. THEY HAD QUITE A BIT TO DRINK.

5 Q. THEY MOVED AROUND THE BAR A LOT?

6 A. YES. I WASN’T WATCHING ‘EM BUT YES, THEY WERE

7 MOVING AROUND QUITE A BIT.

8 Q. FROM WHAT YOU SAW?

9 A. YES.

10 Q. AND THIS WAS THE TIME YOU AGAIN SAW DENISE DANCING?

11 A. ON THE 1ST OF FEBRUARY?

12 Q. YES.

13 A. YEAH, I THINK I DID SEE HER DANCE THAT NIGHT, TOO.

14 Q. YOU LEFT ABOUT 12:30 THAT NIGHT TO GO MEET YOUR

15 FRIEND, YVETTE?

16 A. I’M NOT SURE EXACTLY WHAT TIME IT WAS. IT WAS

17 11:30, 12:30, SOMEWHERE AROUND THERE.

18 Q. BETWEEN 11:30 AND 12:30?

19 A. YES.

20 Q. WHEN YOU LEFT, DAVID WAS STILL AT THE BAR?

21 A. YES, HE WAS.

22 Q. ON THE NIGHT YOU WERE AT DAD’S, FEBRUARY 1ST, THIS

23 IS THE SECOND NIGHT WE’VE BEEN TALKING ABOUT, YOU WERE INVITED

24 OVER TO PLAY POOL WITH THE GIRLS?

25 A. YES.

26 Q. DID YOU INVITE DAVID OVER WITH YOU?

27 A. NO.

28 Q. DO YOU RECALL —
4204
1 A. I WASN’T THE ONE, YOU KNOW, THAT WAS INVITING.

2 SOMEONE ELSE WAS. I’M NOT SURE WHO IT WAS.

3 Q. DAVID, TO YOUR KNOWLEDGE, REMAINED AT THE BAR?

4 A. YES.

5 MR. BOYCE: NOTHING FURTHER.

6 THE COURT: ANYTHING FURTHER?

7

8 REDIRECT EXAMINATION +

9 BY MR. DUSEK:

10 Q. YOU MENTIONED YOU HAD BEEN AT THE DEFENDANT’S PLACE

11 THREE WEEKS BEFORE THIS INCIDENT, THE FINAL INCIDENT AT DAD’S ON

12 FEBRUARY 1ST?

13 A. YES.

14 Q. WAS HIS MOTOR HOME AROUND HIS HOUSE THAT DAY?

15 A. I DIDN’T SEE IT.

16 Q. HAD YOU EVER SEEN HIS MOTOR HOME AROUND HIS HOUSE?

17 A. I’VE NEVER SEEN HIS MOTOR HOME. I SAW HIS OLD ONE.

18 MR. DUSEK: THANK YOU, SIR.

19 THE COURT: ANYTHING FURTHER, MR. BOYCE?

20 MR. BOYCE: NO, YOUR HONOR.

21 THE COURT: IS THIS WITNESS BEING EXCUSED, GENTLEMEN?

22 MR. DUSEK: YES.

23 THE COURT: MR. BOYCE.

24 MR. BOYCE: YES, YOUR HONOR.

25 THE COURT: SIR, YOUR TIME WITH US IS DONE. YOU’RE FREE

26 OF THE SUBPOENA.

27 I JUST WANT TO REMIND YOU, YOU’RE STILL UNDER AN

28 ORDER NOT TO DISCUSS YOUR TESTIMONY WITH ANYONE UNTIL THE
4205
1 MATTER’S CONCLUDED, OKAY?

2 THE WITNESS: OKAY.

3 THE COURT: ALL RIGHT. YOU’RE FREE TO LEAVE AT THIS

4 TIME.

5 MR. BOYCE: YOUR HONOR, OUT OF AN ABUNDANCE OF CAUTION, I

6 REALIZE THAT HE COMES FROM OUT OF TOWN, BUT WE MIGHT NEED HIM ON

7 STANDBY. WE’LL MAKE WHATEVER ARRANGEMENTS IS NECESSARY.

8 THE COURT: OKAY. ALL RIGHT. THEY’LL CONTACT YOU,

9 HOWEVER, IF THEY NEED YOU, MR. HARVEY.

10 THE WITNESS: DO YOU WANT ME TO GIVE YOU MY CELL PHONE

11 NUMBER BEFORE I LEAVE?

12 THE COURT: IT MIGHT NOT BE A BAD IDEA.

13 MR. DUSEK: HE’S A TRUCKER.

14 THE COURT: THAT’S PROBABLY A VERY GOOD IDEA.

15 HOWEVER, DON’T MAKE IT AUDIBLE ENOUGH SO THAT IT

16 GOES OUT OVER THE WAVES.

17 THANK YOU, MR. HARVEY.

18 THE WITNESS: YOU’RE WELCOME.

19 THE COURT: ALL RIGHT. MR. DUSEK.

20 MR. DUSEK: YVETTE WETLI.

21

22 -YVETTE WETLI,+

23 PLAINTIFF’S WITNESS, HAVING BEEN SWORN, TESTIFIED AS FOLLOWS:

24

25 THE COURT: PLEASE HAVE A SEAT, MA’AM.

26 THE CLERK: WOULD YOU PLEASE STATE YOUR NAME AND SPELL IT

27 FOR THE RECORD?

28 THE WITNESS: YVETTE Y-V-E-T-T-E, W-E-T-L-I.
4206
1 DIRECT EXAMINATION+

2 BY MR. DUSEK:

3 Q. MISS OR MRS.?

4 A. MISS.

5 Q. ARE YOU EMPLOYED MISS WETLI?

6 A. YES, I AM.

7 Q. WHAT TYPE OF WORK DO YOU DO?

8 A. I’M A NURSE ASSISTANT, MEDICAL ASSISTANT DURING THE

9 WEEK AND I BARTENDER ON THE WEEKENDS.

10 Q. WHERE?

11 A. AT O’HARLEY’S.

12 Q. WHERE IS O’HARLEY’S LOCATED?

13 A. IT’S OFF COMMUNITY IN THE MALL PARKING LOT.

14 Q. WHEN DID YOU START WORKING THERE?

15 A. IT WILL BE A YEAR THIS MONTH.

16 Q. YOU’RE A BARTENDER THERE?

17 A. UM-HMM.

18 Q. YOU HAVE TO ANSWER WITH WORDS.

19 A. YES.

20 Q. WHEN DO YOU WORK?

21 A. I WORK THERE FRIDAY NIGHTS.

22 Q. I’D LIKE TO DRAW YOU YOUR ATTENTION TO FEBRUARY

23 1ST, GOING OVER TO FEBRUARY 2ND OF THIS YEAR.

24 WERE YOU WORKING AT O’HARLEY’S THAT FRIDAY/SATURDAY

25 NIGHT?

26 A. YES.

27 Q. WHAT’S YOUR SHIFT?

28 A. 6:00 TO CLOSE.
4207
1 Q. CLOSING IS WHAT?

2 A. IT DEPENDS. IT VARIES.

3 Q. ABOUT WHAT?

4 A. ANYWHERE FROM 12:30 TO 2:00.

5 Q. DO YOU KNOW THE DEFENDANT IN THIS CASE, DAVID

6 WESTERFIELD?

7 A. YES.

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

9 HE’S WEARING TODAY?

10 A. RIGHT THERE. HE’S WEARING A GRAY SUIT WITH A WHITE

11 SHIRT AND A COLORFUL TIE.

12 THE COURT: ALL RIGHT. THE RECORD WILL REFLECT

13 IDENTIFICATION.

14

15 BY MR. DUSEK:

16 Q. HOW LONG HAVE YOU KNOWN HIM?

17 A. I’D SAY FOUR YEARS.

18 Q. WHERE DID YOU FIRST MEET HIM?

19 A. AT THE BIG STONE LODGE IN POWAY.

20 Q. HOW?

21 A. I WAS A BARTENDER THERE ALSO AND I COCKTAILED AND

22 HE WAS A CUSTOMER IN THERE.

23 Q. WHEN DID YOU MOVE TO O’HARLEY’S?

24 A. JUNE OF 2001.

25 Q. DO YOU KNOW AN INDIVIDUAL BY THE NAME OF GARRY

26 HARVEY?

27 A. YES.

28 Q. IS HE THE FELLOW WHO JUST LEFT THE COURTROOM?
4208
1 A. UH-HUH. YES.

2 Q. HOW DO YOU KNOW HIM?

3 A. HE WAS ORIGINALLY ALSO A CUSTOMER AT THE BIG STONE

4 LODGE.

5 Q. WHAT’S YOUR RELATIONSHIP WITH HIM?

6 A. HE’S A FRIEND OF MINE.

7 Q. DO YOU KNOW IF GARRY HARVEY AND THE DEFENDANT ARE

8 FRIENDS OR ACQUAINTANCES?

9 A. ACQUAINTANCES, FRIENDS.

10 Q. HOW DO YOU KNOW?

11 A. BECAUSE JUST THROUGH HANGING OUT IN THE BAR AND

12 SEEING THEM DRINK TOGETHER AND —

13 Q. OKAY.

14 NOW, BACK TO FEBRUARY 1ST OF THIS YEAR, DID YOU

15 HAVE ANY CONTACT WITH GARRY HARVEY THAT EVENING?

16 A. YES.

17 Q. ABOUT WHAT TIME?

18 A. HE CAME INTO MY BAR AROUND 12:15 THAT EVENING.

19 Q. HOW ARE YOU COMING UP WITH THE TIME?

20 A. BECAUSE THAT’S ABOUT THE TIME HE CAME IN. BECAUSE

21 I KNOW FROM THE POINT THAT I LEFT THE BAR TO THE POINT THAT HE

22 WAS THERE AROUND, THAT’S WHERE I’M KIND OF WITH THAT TIMEFRAME.

23 Q. DID YOU CHECK A WATCH OR A CLOCK IN THE —

24 A. USUALLY AROUND 12 O’CLOCK. I LOOK AT THE CLOCK TO

25 SEE THE CROWD AND SEE WHEN I MIGHT BE GETTING OFF, YEAH.

26 Q. WHEN GARRY HARVEY SHOWED UP HOW BUSY WERE YOU?

27 A. NOT VERY.

28 Q. WHAT HAPPENED WHEN HE GOT THERE?
4209
1 A. HE HAD ASKED ME IF I WANTED TO GO BACK TO DAD’S

2 ‘CAUSE HE HAD BEEN HANGING OUT THERE, AND I SAID WELL, IF I GET

3 OUT OF HERE SOON ENOUGH I WILL.

4 Q. HAD YOU BEEN TO DAD’S BEFORE?

5 A. YEAH.

6 Q. HOW OFTEN?

7 A. I, YOU KNOW, A TOTAL TIMES?

8 Q. HOW FREQUENTLY DO YOU GO DOWN THERE?

9 A. PROBABLY EVERY OTHER WEEKEND. IT JUST DEPENDS. IF

10 I GET OFF EARLY, I LIKE TO GO THERE AND HAVE A DRINK.

11 Q. YOU CAN’T DRINK WHILE YOU’RE WORK?

12 A. NO.

13 Q. HOW LONG WOULD YOU SAY YOU WERE AT O’HARLEY’S WHILE

14 GARRY HARVEY WAS THERE WITH YOU?

15 A. THIRTY, 40 MINUTES TOPS.

16 Q. WHAT WERE YOU DOING DURING THAT TIME?

17 A. I JUST WENT IN AND SAT AT THE BAR.

18 Q. I’M SORRY.

19 HOW LONG WERE YOU AT O’HARLEY’S WHILE GARRY HARVEY

20 WAS THERE?

21 A. OH, I’M SORRY. LET’S SEE, FROM PROBABLY 30

22 MINUTES.

23 Q. WHAT WAS GOING ON?

24 A. I JUST STARTED CLEANING UP THE BAR AND DOING MY

25 USUAL ROUTINE TO CLOSE DOWN.

26 Q. ONCE YOU GOT CLOSED DOWN YOU WENT BACK TO DAD’S?

27 A. YES.

28 Q. WHO DROVE?
4210
1 A. I DID.

2 Q. WHY?

3 A. BECAUSE I DIDN’T FEEL LIKE WE NEEDED TWO CARS TO GO

4 OVER THERE WHEN IT’S LIKE A MILE AWAY. WE WERE GOING TO GO OVER

5 THERE TOGETHER ANYWAY.

6 Q. DESCRIBE FOR US GARRY HARVEY’S STATE OF SOBRIETY OR

7 INTOXICATION.

8 A. HE WASN’T BAD. I MEAN, HE WASN’T LIKE DRUNK

9 FALLING OVER BUT HE WAS KIND OF IN A HAPPY STATE, LAUGHING.

10 Q. BASED UPON WHAT YOU SAW, WAS HE IN A CONDITION TO

11 DRIVE?

12 A. I DIDN’T REALLY THINK ABOUT IT ONE WAY OR ANOTHER.

13 Q. COULD YOU TELL WHETHER OR NOT HE HAD BEEN DRINKING?

14 A. YEAH.

15 Q. WHERE DID YOU GO ONCE YOU GOT BACK TO DAD’S?

16 A. WHERE DID I GO AFTER DAD’S?

17 Q. NO. ONCE YOU ARRIVED AT DAD’S, I ASSUME YOU WENT

18 INSIDE?

19 A. I WENT STRAIGHT TO THE BAR, YEAH.

20 Q. WHAT HAPPENED?

21 A. I SAT DOWN TO ORDER A DRINK.

22 Q. DID YOU ORDER A DRINK?

23 A. YEAH, EXACTLY.

24 Q. WHAT DID YOU GET?

25 A. A CROWN AND COKE, I BELIEVE.

26 Q. DID YOU SEE THE DEFENDANT AT DAD’S AT THAT TIME?

27 A. NO.

28 Q. ABOUT WHAT TIME DO YOU THINK YOU WERE THERE?
4211
1 A. IT HAD TO HAVE BEEN BETWEEN 12:45 AND 1 O’CLOCK.

2 Q. WHY DO YOU SAY IT HAD TO BE BETWEEN THAT?

3 A. BECAUSE I LEFT O’HARLEY’S PROBABLY AROUND 12:45-ISH

4 AND IT TAKES A FEW MINUTES TO GET TO THE BAR, SO THAT’S WHY.

5 Q. AND YOU WERE AT DAD’S FOR ABOUT HOW LONG?

6 A. THIRTY, 40 MINUTES TOPS.

7 Q. WHERE WAS GARRY HARVEY WHEN YOU WERE — AT LEAST

8 YOU WERE TOGETHER AT DAD’S?

9 A. HE STAYED AT THE BAR ALSO.

10 Q. DID YOU DO ANYTHING WHILE YOU WERE THERE?

11 A. DID I?

12 Q. YEAH.

13 A. TALKED TO MY FRIEND.

14 Q. DID YOU DANCE?

15 A. I DIDN’T DANCE ON THE FLOOR, NO.

16 Q. WHERE DID YOU DANCE?

17 A. IF ANYTHING, IT WAS RIGHT BY THE BAR, JUST KIND OF

18 LIKE GOOFING AROUND, YOU KNOW.

19 Q. OKAY. DID YOU PLAY POOL AT ALL?

20 A. NO.

21 Q. WERE THERE PEOPLE DANCING?

22 A. YES.

23 Q. DO YOU KNOW WHO THEY WERE?

24 A. I MEAN, I WASN’T REALLY PAYING ATTENTION. I MEAN,

25 I PROBABLY — I KNOW A FEW PEOPLE THAT GO IN THERE, YEAH, BUT —

26 Q. AT THAT TIME DID YOU KNOW WHO BRENDA VAN DAM WAS?

27 A. NO.

28 Q. DO YOU KNOW IF SHE WAS THERE THAT EVENING?
4212
1 A. I DIDN’T NOTICE HER.

2 Q. WAS THE BAND STILL PLAYING?

3 A. I — YOU KNOW WHAT, I DON’T KNOW EXACTLY. I WASN’T

4 PAYING ATTENTION.

5 Q. WHEN IT GOT TIME — ABOUT WHAT TIME DID YOU LEAVE?

6 A. 1:30.

7 Q. WHERE DID YOU GO?

8 A. I WENT STRAIGHT HOME.

9 Q. FROM DAD’S?

10 A. NO. WELL, I WENT TO DROP OFF GARRY SO HE COULD GET

11 HIS CAR AT O’HARLEY’S, AND THEN I WENT HOME.

12 Q. SO YOU DROVE GARRY HARVEY BACK UP TO O’HARLEY’S?

13 A. YEAH, SO HE COULD GET HIS CAR.

14 Q. THEN HOW DID YOU GET FROM O’HARLEY’S TO YOUR HOME?

15 DO YOU REMEMBER THE ROUTE THAT YOU TOOK?

16 A. YES.

17 Q. WHERE DID YOU GO?

18 A. I JUST WENT DOWN — LET’S SEE — COMMUNITY. I TOOK

19 A LEFT ON TWIN PEAKS, AND THEN I WOULD TAKE A RIGHT ON POMERADO,

20 AND THEN I WENT ALL THE WAY DOWN TO THE FREEWAY THERE.

21 Q. WHERE DOES POMERADO JOIN THE FREEWAY?

22 A. IT’S BY THE BRIDGE IN BETWEEN — I GUESS IT WOULD

23 BE RANCHO BERNARDO AND WEST — IT’S LIKE WEST BERNARDO.

24 Q. DID ANYBODY DRIVE WITH YOU TO THAT LOCATION?

25 A. NO.

26 Q. YOU WERE ALONE IN YOUR CAR?

27 A. I WAS ALONE IN MY CAR.

28 Q. WHERE WAS GARRY HARVEY?
4213
1 A. HE WAS FOLLOWING BEHIND ME.

2 Q. HOW DO YOU KNOW?

3 A. BECAUSE HE SAID HE WAS GONNA FOLLOW BEHIND ME.

4 Q. DID YOU SEE HIM BACK THERE?

5 A. YEAH.

6 Q. WHEN YOU GOT ON THE FREEWAY DID YOU SEE WHERE GARRY

7 HARVEY WENT?

8 A. NO.

9 Q. DID YOU GO HOME?

10 A. I WENT HOME.

11 MR. DUSEK: THANK YOU, MA’AM.

12 THE COURT: ALL RIGHT.

13 CROSS-EXAMINATION.

14 MR. DUSEK: WHOOP?

15 THE WITNESS: OH, SORRY.

16

17 CROSS-EXAMINATION+

18 BY MR. FELDMAN:

19 Q. GOOD AFTERNOON.

20 A. GOOD AFTERNOON.

21 Q. BEFORE YOU CAME TO COURT TODAY, DID YOU HAVE THE

22 OPPORTUNITY TO REVIEW ANY STATEMENTS THAT YOU HAD PREVIOUSLY

23 GIVEN TO THE POLICE?

24 A. YES.

25 Q. IN PARTICULAR DID YOU REVIEW A STATEMENT THAT YOU

26 GAVE TO AN OFFICER NAMED — I THINK IT’S — I DON’T KNOW THAT I

27 AM GOING TO SAY IT RIGHT, RORRISON?

28 A. UM-HMM, YES.
4214
1 Q. SO YOU READ THE STATEMENT YOU GAVE TO DETECTIVE

2 RORRISON?

3 A. YES.

4 Q. DO YOU FEEL THAT THAT STATEMENT MAY HAVE REFRESHED

5 YOUR MEMORY AS TO WHAT OCCURRED ON FEBRUARY 1ST AND 2ND?

6 A. I FELT SOME OF IT DID BUT I DIDN’T FEEL IT WAS ALL

7 RIGHT.

8 Q. ALL RIGHT.

9 IN PARTICULAR — FIRST OF ALL, WITH REGARD TO YOUR

10 RELATIONSHIP WITH MR. HARVEY, YOU’RE JUST FRIENDS, RIGHT?

11 A. YES.

12 Q. APPARENTLY, THOUGH, HE’S TOLD US YOU HAVE SOME KIND

13 OF ROUTINE WHERE HE MAY GO TO MEET YOU ON FRIDAY NIGHTS WHEN

14 HE’S IN THE AREA, AND YOU WOULD HAVE A DRINK TOGETHER AND THAT

15 WOULD BE THAT, RIGHT?

16 A. YES.

17 Q. SO HE KIND OF LOOKS AFTER YOU, IS THAT A FAIR

18 STATEMENT, OR YOU LOOK AFTER HIM?

19 A. NO. I DON’T FEEL HE LOOKS AFTER ME BUT HE LIKES TO

20 HAVE A DRINK WITH ME OCCASIONALLY, TALK AFTER WORK.

21 Q. WITH REGARD TO THAT EVENING, YOU AND GARRY WENT TO

22 DAD’S BAR TOGETHER. THAT’S A FAIR STATEMENT, ISN’T IT?

23 A. YES.

24 Q. WHEN YOU GOT THERE, YOU SAT DOWN AT THE BAR AND HAD

25 SOMETHING TO DRINK, IS THAT RIGHT?

26 A. YES.

27 Q. WHEN YOU GOT THERE, GARRY IDENTIFIED TO YOU THREE

28 PEOPLE WHO HE HAD INDICATED WERE DAVID’S NEIGHBORS, IS THAT
4215
1 RIGHT?

2 A. NO.

3 Q. DO YOU RECALL READING THAT IN DETECTIVE RORRISON’S

4 STATEMENT?

5 A. YES.

6 Q. ALL RIGHT.

7 AND WHEN YOU TALKED TO DETECTIVE RORRISON, DO YOU

8 REMEMBER WHETHER OR NOT — THIS IS A MAN, ISN’T IT?

9 A. DOCTOR — YES.

10 Q. DO YOU REMEMBER WHETHER HE WAS TAKING NOTES?

11 A. YES.

12 Q. WAS HE TAKING NOTES?

13 A. YES.

14 Q. OKAY.

15 AND DID IT SEEM TO YOU THAT HE WAS TAKING NOTES AS

16 YOU WERE SPEAKING TO HIM?

17 A. YES.

18 Q. SO IT’S CORRECT THAT YOU TOLD DETECTIVE RORRISON

19 THAT SINCE YOU HAD SEEN BRENDA VAN DAM ON THE NEWS SINCE THE

20 EVENT, YOU RECOGNIZED HER AS A GROUP OF THREE WOMEN THAT WERE

21 PARTYING AT THE BAR?

22 A. THAT WAS ONE OF THE STATEMENTS I DIDN’T AGREE WITH.

23 Q. OKAY. YOU AGREE THAT YOU READ IT AND YOU JUST

24 DON’T THINK THAT IT’S ACCURATE?

25 A. EXACTLY.

26 Q. WHEN YOU TALKED TO DETECTIVE RORRISON, WERE YOU

27 TRYING TO BE AS ACCURATE AS YOU POSSIBLY COULD?

28 A. YES.
4216
1 Q. WERE YOU BEING CAREFUL TO PROVIDE HIM THE

2 INFORMATION THAT HE WAS ASKING FOR?

3 A. YES.

4 Q. YOU HAVE NOTHING TO HIDE?

5 A. RIGHT.

6 Q. SO IS IT CORRECT THAT AT THE BAR ON — WHEN YOU

7 ARRIVED WITH GARRY, THAT IS DAD’S BAR, THESE GIRLS WERE

8 INTOXICATED AND VERY FLIRTATIOUS?

9 MR. DUSEK: OBJECTION, VAGUE AS TO WHICH GIRLS.

10 THE COURT: I THINK HE’S ALREADY LAID THE FOUNDATION.

11 DO YOU UNDERSTAND WHO HE’S TALKING ABOUT, MA’AM?

12 THE WITNESS: YES.

13 THE COURT: ALL RIGHT. YOU MAY ANSWER THE QUESTION.

14 THE WITNESS: THE THREE GIRLS SPECIFICALLY?

15

16 BY MR. FELDMAN:

17 Q. YES.

18 A. I DIDN’T NOTICE THREE GIRLS SPECIFICALLY. I

19 NOTICED ONE.

20 Q. OKAY. AND DID YOU LATER LEARN THAT THAT WAS

21 BARBARA?

22 A. YES.

23 Q. AND YOU DESCRIBED BARBARA AS TALL AND BLONDE, IS

24 THAT RIGHT?

25 A. I DON’T KNOW ABOUT THE BLONDE PART, BUT SHE’S TALL.

26 Q. AND VERY AGGRESSIVE TOWARD YOU IN A SEXUAL SENSE?

27 A. SHE WAS AGGRESSIVE TOWARDS ME, YES.

28 Q. IN A SEXUAL SENSE?
4217
1 A. SEXUAL SENSE.

2 Q. THAT’S AT LEAST WHAT YOU TOLD THE DETECTIVE, RIGHT?

3 A. YES.

4 Q. AND BARBARA KEPT RUBBING YOUR BACK AND YOUR

5 BUTTOCKS?

6 A. NO.

7 Q. DID YOU TELL THE DETECTIVE THAT BARBARA KEPT

8 RUBBING YOUR BACK AND YOUR BUTTOCKS?

9 A. I DIDN’T MENTION MY BUTTOCKS.

10 Q. OKAY.

11 YOU MENTIONED YOUR BACK?

12 A. YEAH.

13 Q. AND IT IS THE CASE BARBARA WAS RUBBING YOUR BACK?

14 A. YES.

15 Q. YOU DIDN’T ASK HER TO DO THAT, DID YOU?

16 A. NO. I DIDN’T EVEN KNOW WHO SHE WAS.

17 Q. WAS IT MAKING YOU A LITTLE UNCOMFORTABLE?

18 A. YES.

19 Q. AND DID BARBARA ASK YOU TO STAY AND PARTY WITH HER?

20 A. SHE WANTED ME TO STAY THERE AND HAVE SOME DRINKS,

21 YES.

22 Q. AND DID THAT MAKE YOU FEEL UNCOMFORTABLE?

23 A. YES.

24 Q. AS A RESULT OF YOUR UNCOMFORT — DISCOMFORT, DID

25 YOU DECLINE HER OFFER?

26 A. YES.

27 Q. AT SOME POINT DID BARBARA PLACE HER HAND INSIDE

28 YOUR BLOUSE?
4218
1 A. YES. THAT WAS THE FIRST THING THAT HAPPENED WHEN I

2 GOT IN THE BAR.

3 Q. NOT HI, NICE TO MEET YOU, JUST —

4 A. YES.

5 Q. DID THAT MAKE YOU FEEL UNCOMFORTABLE?

6 A. YES.

7 Q. AND WAS BARBARA IN THE COMPANY OF A COUPLE OF OTHER

8 WOMEN?

9 A. I DON’T KNOW. I WAS SITTING THERE AND SHE WAS

10 STANDING THERE. SO AT THE BAR I JUST NOTICED HER.

11 Q. WHEN THE WOMAN STUCK HER HAND DOWN YOUR BLOUSE YOU

12 GRABBED THE WOMAN’S ARM, ISN’T THAT RIGHT, TO GET IT OUT OF

13 THERE?

14 A. YES.

15 Q. YOU SAID WHAT ARE YOU DOING THAT FOR? WHY ARE YOU

16 DOING THAT, OR SOMETHING LIKE THAT, RIGHT?

17 A. YES, UM-HMM.

18 Q. AND AT THAT POINT THE WOMAN SAID HER NAME WAS

19 BARBARA AND THAT SHE JUST WANTED TO HELP, RIGHT?

20 A. YES.

21 Q. NOW YOU ALSO HAD A FRIEND AT THE BAR WHOSE NAME WAS

22 CHEROKEE, IS THAT RIGHT?

23 A. YES.

24 Q. HAVE YOU TALKED TO CHEROKEE SINCE THIS EVENT?

25 A. YES.

26 MR. FELDMAN: THANK YOU VERY MUCH.

27 NO FURTHER.

28 THE COURT: ANYTHING FURTHER?
4219
1 REDIRECT EXAMINATION +

2 BY MR. DUSEK:

3 Q. WHAT HAPPENED WITH BARBARA WHEN YOU SHOWED UP?

4 A. WHAT HAPPENED WITH HER?

5 Q. YEAH. THIS HAND DOWN YOUR BLOUSE TYPE THING?

6 A. WHY DID SHE DO IT OR WHAT —

7 Q. WHAT HAPPENED?

8 A. WHAT HAPPENED AT THAT POINT?

9 Q. AT THAT POINT WHAT HAPPENED?

10 A. I GRABBED HER HAND AWAY, AND THE ONLY REASON — I

11 MEAN — INITIALLY SHE HAD DONE IT IS BECAUSE SOMEONE HAD THROWN

12 A PIECE OF ICE DOWN MY SHIRT.

13 Q. WHO HAD TOSSED THE ICE DOWN YOUR SHIRT?

14 A. ONE OF THE BARTENDERS AT DAD’S.

15 Q. YOU KNEW THE BARTENDER?

16 A. YEAH.

17 Q. WHERE WAS BARBARA WHEN THAT ICE GOT TOSSED IN?

18 A. SHE WAS JUST STANDING RIGHT NEXT TO ME.

19 Q. SHE REACHES IN TO GET IT OUT?

20 A. YES.

21 Q. HOW DRUNK WAS SHE?

22 A. SHE WAS INTOXICATED FOR SURE.

23 Q. AND YOU TOLD HER, YOU KNOW, YOU DON’T NEED ANY OF

24 THAT?

25 A. RIGHT.

26 MR. DUSEK: THANK YOU, MA’AM.

27 THE COURT: ANYTHING FURTHER?

28 MR. FELDMAN: EXCUSE ME, I’M SORRY. THANK YOU.
4220
1 THE COURT: ALL RIGHT.

2 MAY THIS WITNESS BE EXCUSED?

3 MR. FELDMAN: NO OBJECTION.

4 THE COURT: ALL RIGHT. THANK YOU VERY MUCH, MA’AM, FOR

5 COMING IN. YOU’RE FREE TO LEAVE THESE PROCEEDINGS.

6 I JUST WANT TO REMIND YOU THAT YOU’RE STILL UNDER

7 AN ORDER NOT TO DISCUSS YOUR TESTIMONY WITH ANYONE UNTIL THIS

8 CASE IS RESOLVED, OKAY?

9 THE WITNESS: YES, SIR.

10 THE COURT: ALL RIGHT.

11 THE WITNESS: THANK YOU.

12 MR. DUSEK: WE’RE DONE, YOUR HONOR.

13 MR. FELDMAN: NO SUCH LUCK.

14 THE COURT: ALL RIGHT.

15 MR. DUSEK ADVISES ME HE’S RUN OUT OF WITNESSES. DO

16 YOU MIND HOME GOING HOME EARLY TODAY? I SEE NO ONE BEING SORELY

17 DISAPPOINTED I’M GOING TO GO AHEAD AND LET YOU GO.

18 WE’RE GOING TO BE ABLE TO PUT IN A FULL DAY

19 TOMORROW, FOLKS. WE’RE GOING TO BE ABLE TO START RIGHT AT 9

20 O’CLOCK TOMORROW MORNING, SO IF YOU NEED TO MAKE A NOTE TO

21 YOURSELF, PLEASE DO SO.

22 PLEASE REMEMBER THE ADMONITION OF THE COURT NOT TO

23 DISCUSS THE TESTIMONY WITH ANYONE, EVEN WITH EACH OTHER, NOR

24 FORM ANY OPINIONS, NOR DISCUSS ANY OPINIONS UNTIL THE MATTER IS

25 RESOLVED AND IS HANDED OVER TO YOU FOR RESOLUTION IN THE JURY

26 ROOM.

27 HAVE A SAFE AND A PLEASANT EVENING. HOPEFULLY BY

28 NOW THE PADS AREN’T ALREADY SIX RUNS BEHIND, AND WE’LL SEE YOU
4221
1 TOMORROW MORNING AT 9:00 A.M.

2 (AT 4:08 P.M. THE JURY WAS EXCUSED
AND THE FOLLOWING PROCEEDINGS WERE HAD:)
3

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

5 AND ALTERNATES HAVE LEFT THE COURTROOM. FOLKS, I’VE RECEIVED A

6 COMMUNICATION FROM ONE OF THE JURORS THAT DISCLOSES A LITTLE BIT

7 WHO SHE IS. I NEED TO DISCUSS IT WITH COUNSEL, SO AT THIS TIME

8 WE’RE GOING TO CLEAR THE COURTROOM AND TERMINATE ANY BROADCAST

9 PLEASE.

10 THIS ISN’T GOING TO TAKE LONG, GENTLEMEN.

11

12

13 (SEALED PROCEEDINGS FOLLOW ON THIS DATE, PAGES 4224

14 THROUGH 4229 BOUND IN SEPARATE VOLUME 14-A. UNSEALED

15 PROCEEDINGS CONTINUE ON PAGE 4231. NOTHING OMITTED.)

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16 - Day 5- June 11th 2002 - Transcript criminal trial David Westerfield
14 - Day 4- June 10th 2002 - Transcript criminal trial David Westerfield