TRIAL DAY 1 – SAN DIEGO, CALIFORNIA – TUESDAY, JUNE 4, 2002, 1:30 P. M.
Defense Feldman opening statement,
WITNESSES:
Julie Hennes (Van Dam’s neighbor),
Karsten Heimburger (one of the 2 volunteers who found Danielle’s body)
1
2 –OCC–
3
4 THE COURT: IN THE WESTERFIELD MATTER, THE RECORD WILL
5 REFLECT THE APPEARANCE OF COUNSEL AND MR. WESTERFIELD.
6 YES, MR. FELDMAN.
7 MR. FELDMAN: YOUR HONOR, JUST SOMETHING THAT CAME TO MY
8 ATTENTION OVER THE NOON HOUR. THERE’S A COUPLE OF THINGS THAT
9 ARE HAPPENING WITH REGARD TO THE JURY. AS THE COURT I’M SURE IS
10 AWARE, THERE’S A PRETTY SUBSTANTIAL CROWD OUTSIDE. THERE ARE
11 NEWSPAPERS THAT ARE OPEN. YOU KNOW WE’RE ON THE NEWSPAPERS
12 TODAY. I’M CONCERNED ABOUT THE JURY’S EXPOSURE TO THAT, AND I’M
13 NOT SAYING IT’S ADVERSE, AND I DON’T KNOW WHAT THE CONTROL IS,
14 EXCEPT TO RENEW THE SEQUESTRATION ISSUE.
15 IN ADDITION, I’M CONCERNED THAT IT WAS REPORTED TO
16 ME OVER NOON THAT, APPARENTLY, THERE ARE PEOPLE OUTSIDE THE
17 COURTROOM HANDING OUT THE BUTTONS THAT YOUR HONOR CAUGHT, THAT I
18 STILL DON’T THINK I’VE SEEN ONE YET. BUT TO THE EXTENT THERE’S
19 ANY ABILITY TO CONTROL THE DISSEMINATION OF THAT SORT OF THING,
20 I WOULD REQUEST THAT THAT BE DONE.
21 THE COURT: WELL, I THINK AS LONG AS — I DON’T — WELL,
22 DO THE PEOPLE DESIRE TO GET INVOLVED IN THIS?
23 MR. DUSEK: NO.
24 THE COURT: I DON’T THINK I CAN CONTROL PEOPLE THAT WANT
25 TO HAND OUT THE BUTTONS AS LONG AS THEY’RE NOT IN HERE. IF I
26 FIND OUT THAT THERE ARE BUTTONS ON PERSONS IN THE HALLWAY OF
27 THIS COURTROOM, I’M GOING TO ORDER THEM OUT.
28 NOW, I KNOW THE LAWYERS HAVE NO PROBLEM WITH THIS,
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1 BUT THE PUBLIC CERTAINLY MUST UNDERSTAND WHAT FORM OF
2 INTIMIDATION THAT IS, AND I’M NOT GOING TO TOLERATE IT. PERIOD.
3 ALL RIGHT. LET’S GET THE JURY.
4 MR. FELDMAN: THANK YOU, YOUR HONOR.
5 THE COURT: WELCOME BACK, LADIES AND GENTLEMEN. TO
6 BUTCHER A LINE FROM THE WIZARD OF OZ, TOTO, WE’RE NOT IN SAN
7 DIEGO ANYMORE. LADIES AND GENTLEMEN, I DID SOMETHING IN THIS
8 TRIAL THAT I DO IN EVERY TRIAL I HAVE EVER DONE FOR ALMOST 20
9 YEARS OF DOING THIS JOB, AND THAT IS, I GAVE YOU THE PHONE
10 NUMBER FOR THIS COURTROOM. AND I GAVE YOU THE PHONE NUMBER WITH
11 THE UNDERSTANDING YOU WOULD USE IT IN CASE OF AN EMERGENCY.
12 LITTLE DID I KNOW THAT EVERY WEIRDO, WACKO AND
13 DIMESTORE COMEDIAN IN THIS COUNTRY WAS GOING TO CALL MY LINE
14 WITH SUGGESTIONS ABOUT MY HAIRDO, MY WEIGHT. SO, LADIES AND
15 GENTLEMEN, I’M GOING TO HAVE TO ADAPT TO WHERE THAT EYE GOES,
16 BUT I’M GOING TO TELL YOU RIGHT NOW TO HANG ONTO THE LINE THAT
17 YOU NOW HAVE, AND WE’RE MAKING ARRANGEMENTS TO GET ANOTHER LINE
18 THAT IS GOING TO HAVE AN ANSWERING BOX ON IT. AND WE WILL SLIP
19 YOU THE NUMBER AND ASK THAT YOU KEEP IT AS SECRET AS ANYTHING
20 THAT YOU CHERISH.
21 ALSO, IT HAS COME TO MY ATTENTION THAT A PERSON OR
22 PERSONS UNKNOWN IS HANDING OUT BADGES IN THE COURTHOUSE AND IN
23 THE COURT AREA WITH THE PICTURE OF DANIELLE VAN DAM ON IT.
24 NEEDLESS TO SAY, YOU’RE GOING TO SEE PICTURES OF
25 DANIELLE, AND YOU HAVE IN THIS COURTROOM. THOSE WILL BE THE
26 PICTURES YOU WORK WITH. PEOPLE ARE ENTITLED TO BRING WHATEVER
27 THEY WANT AND WEAR WHATEVER THEY WANT. BUT FOR WHAT IT IS
28 WORTH, I’M JUST ASKING YOU SIMPLY TO DISREGARD THOSE BADGES OR
3394
1 PHOTOS WHEN YOU SEE THEM.
2 ALL RIGHT. MR. FELDMAN, ON BEHALF MR. WESTERFIELD.
3 MR. FELDMAN: WOULD THAT THE CASE WERE SO SIMPLE. WOULD
4 THE CASES WERE BLACK AND WHITE. WOULD THAT THIS NOT BE A CASE
5 ENTIRELY DETERMINED BY CIRCUMSTANTIAL EVIDENCE.
6 THIS IS WHAT THE EVIDENCE WILL SHOW, LADIES AND
7 GENTLEMEN. DAVID WESTERFIELD IS A 50 YEAR-OLD MAN. HE’S A
8 DESIGN ENGINEER. HE HAS PATENTS. THE PATENTS THAT HE’S BEEN
9 INVOLVED IN, THE INVENTIONS THAT HE’S BEEN INVOLVED IN RELATE TO
10 PROSTHETIC DEVICES THAT BENEFIT MANY IN OUR SOCIETY.
11 HE’S DIVORCED. HE HAS TWO GROWN CHILDREN, EACH IN
12 COLLEGE. HE PARENTS THEM. HE SUPPORTS THEM. HE PROVIDES FOR
13 THEM, AND HE HAS DONE SO ALL HIS LIFE. TWO WEEKS A MONTH HE HAS
14 CUSTODY OF HIS CHILDREN. COINCIDENTALLY, ON SUPER BOWL WEEKEND,
15 AS LAW ENFORCEMENT FLOODED HIS HOUSE, HIS SON WAS UPSTAIRS IN
16 THE HOUSE. THAT WE’LL SPEAK OF LATER.
17 YOU WILL LEARN THAT MR. WESTERFIELD IS A MAN THAT
18 ENJOYS THE DESERT, THAT HE IS A MAN THAT ENJOYS CAMPING, THAT HE
19 DOES HAVE A MOTOR HOME, BUT THAT THERE’S ABSOLUTELY NOTHING
20 UNUSUAL ABOUT THE BEHAVIOR THAT HE ENGAGED IN ON SUPER BOWL
21 WEEKEND, BECAUSE THE PROSECUTION IS GOING TO PRESENT TO YOU
22 WITNESSES WHO ARE GOING TO TELL YOU HE’S DONE IT BEFORE, HE’LL
23 DO IT AGAIN. THERE’S NOTHING WRONG WITH IT. HE DIDN’T DO
24 ANYTHING WRONG. DEPENDS ON THE SPIN YOU PUT ON THE EVIDENCE.
25 I AGREE WITH MR. DUSEK TO A CERTAIN EXTENT. WE
26 TALKED THREE DISCREET TIME PERIODS. LET’S START ON THE 25TH OF
27 JANUARY THIS YEAR.
28 BRENDA VAN DAM WAS MARRIED TO DAMON VAN DAM. SHE
3395
1 WAS VERY CLOSE FRIENDS WITH BARBARA EASTON AND VERY CLOSE
2 FRIENDS WITH DENISE KEMEL. KEMEL APPARENTLY IS AN AIRLINE
3 STEWARDESS WHO WAS ABOUT TO BE SENT OUT, SO THEY WERE GOING TO
4 HAVE A GIRLS NIGHT OUT. SOUNDS OKAY. THEY’RE HAVING A GIRLS
5 NIGHT OUT. DAMON’S GOING TO STAY HOME ON THE 25TH AND GONNA
6 WATCH THE KIDS, JUST LIKE ANY OTHER FAMILY WOULD DO, JUST LIKE
7 ANY OTHER FAMILY PICTURE.
8 AND SO KEMEL AND BARBARA EASTON ON THE 25TH GO TO
9 THE VAN DAM RESIDENCE. THEY SMOKE A LITTLE BIT OF MARIJUANA,
10 JUST LIKE ANY OTHER FAMILY, THEY HAVE A LITTLE BIT TO DRINK, AND
11 THEN THE WOMEN LEAVE DAMON AND THE CHILDREN AND GO TO DAD’S BAR
12 FOR THE GIRLS NIGHT OUT.
13 THIS ISN’T JUST GIRLS NIGHT OUT. THIS IS GIRLS
14 NIGHT OUT TO PARTY. AND, IN FACT, THE TESTIMONY WILL BE THAT ON
15 THE 25TH OF JANUARY, BRENDA VAN DAM CONSUMED BETWEEN THREE AND
16 FIVE DRINKS. DENISE KEMEL THE SAME OR MORE, AND BARBARA EASTON
17 THE SAME OR MORE. AND THE GIRLS WERE GETTING DOWN WHICH, IN MY
18 SLANG MEANS, IN MY PARLANCE MEANS THEY WERE DANCING. THEY WERE
19 DANCING. THEY WERE ROCKING OUT AT DAD’S BAR. NO QUESTION ABOUT
20 IT. IN FACT, THE BARTENDER LATER SAID, YOU KNOW, THOSE GIRLS,
21 THEY WERE PARTYING SO HARD, THEY WERE BEING SO FLIRTATIOUS, I
22 REMEMBER, WHEN HE WAS ASKED SOMETIME LATER BY LAW ENFORCEMENT.
23 IT WAS ON THE 25TH THAT BRENDA VAN DAM SAW DAVID
24 WESTERFIELD AT DAD’S, BECAUSE DAVID WESTERFIELD, TOO, WENT TO
25 DAD’S. DAVID WESTERFIELD WENT TO DAD’S WITH HIS FRIENDS, GARRY
26 HARVEY AND JEFF FEECE.
27 YOU HEARD IT IN MR. DUSEK’S OPENING STATEMENT.
28 THESE ARE HIS FRIENDS. MR. WESTERFIELD OBSERVED THE BEHAVIORS
3396
1 OF THOSE WOMEN AS THEY FLIRTED FROM TABLE TO TABLE, AS THEY
2 MOVED FROM TABLE TO TABLE, AS THEY DANCED FROM TABLE TO TABLE,
3 AS THEY DRANK FROM TABLE TO TABLE. AND MR. WESTERFIELD
4 PURCHASED A DRINK FOR MRS. VAN DAM ON THAT VERY DAY, THE 25TH.
5 BUT SHE DIDN’T KNOW HIM. THEY DIDN’T KNOW EACH OTHER. THEY
6 JUST LIVED TWO HOUSES DOWN. THEY DIDN’T KNOW EACH OTHER. AT
7 LEAST, THAT’S THE TESTIMONY OF BRENDA VAN DAM.
8 SO, SOMEWHERE AROUND CLOSING, THIS IS 2 O’CLOCK IN
9 THE MORNING NOW ON FRIDAY THE 25TH, WHILE HER HUSBAND IS HOME
10 ALONE, THE GIRLS ROLL BACK TO THE VAN DAM RESIDENCE. BARBARA
11 AND DENISE GO OFF TO WHEREVER WHEREVER BARBARA AND DENISE GO OFF
12 TO, AND BRENDA GOES UPSTAIRS AND GOES TO BED. THAT’S DISCREET
13 PERIOD NUMBER ONE. WE’LL CALL THAT THE INTRO.
14 SOME DAYS GO BY. IN THE DAYS THAT PASS, TURNS OUT
15 DANIELLE VAN DAM AND BRENDA VAN DAM AND ONE OF THE MALES, ONE OF
16 THE YOUNG CHILDREN, I THINK IT’S DERRICK OR DILLON, I CAN’T
17 RECALL, I’M SORRY, ARE OUT ON THE STREET SELLING GIRL SCOUT
18 COOKIES. NO QUESTION. AND THEY GO TO DAVID WESTERFIELD’S
19 HOUSE. KNOCK ON THE DOOR. HE OPENS THE DOOR AND SAYS COME ON
20 IN, AND THEY ALL GO IN. IN COMES DANIELLE, IN COMES DILLON AND
21 IN COMES BRENDA. HI, WE’RE YOUR NEIGHBORS. WE’RE HERE TO SELL
22 YOU GIRL SCOUT COOKIES, AND WHILE YOU’RE BUYING GIRL SCOUT
23 COOKIES, SIR, COULD YOU PLEASE — ARE YOU WILLING TO MAKE A
24 CONTRIBUTION TO CHARITY? AND YOU’LL SEE ON THE RECEIPT, MR.
25 WESTERFIELD MAKES A CHARITY CONTRIBUTION ON THAT VERY DATE.
26 THERE IS A PROBLEM WITH THE EVIDENCE, HOWEVER. THE
27 PROBLEM WITH THE EVIDENCE IS WE DON’T KNOW WHAT THE DATE IS. WE
28 DON’T KNOW WHETHER IT’S TUESDAY THE 29TH, WEDNESDAY THE 30TH OR
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1 THURSDAY THE 31ST, BECAUSE THERE’S TESTIMONY AS TO EACH OF THOSE
2 DAYS AND THE RECEIPT IS UNDATED.
3 WE DO KNOW THAT DANIELLE VAN DAM HAS PREVIOUSLY
4 BEEN DISCIPLINED BY HER PARENTS FOR GOING OUTSIDE WITHOUT
5 SUPERVISION. WE KNOW THAT DAMON VAN DAM HAS COMPLAINED THAT
6 DANIELLE HAS BEEN OUTSIDE WITHOUT SUPERVISION. WE KNOW SHE’S A
7 CHILD. CHILDREN PLAY. THAT’S THE EVIDENCE. AND, OF COURSE,
8 IT’S THE TRUTH.
9 SO, ACCORDING TO THE TESTIMONY OF BRENDA VAN DAM,
10 SHE DOESN’T KNOW MR. WESTERFIELD AT ALL, DOESN’T KNOW THE MAN’S
11 NAME, HASN’T EVER MET HIM BEFORE, AND SHE’LL SAY HE SAID HI, MY
12 NAME’S DAVID WESTERFIELD. AND — INSTEAD OF GUM — HE HANDS HER
13 A BUSINESS CARD, SAYS SPECTRUM DESIGN ON IT, DAVID WESTERFIELD.
14 THEY TALK SOME MORE. DAVID SAYS, YOU KNOW, I HAVE
15 PARTIES. WHILE THEY’RE TALKING THE CHILDREN ARE PLAYING.
16 BRENDA WILL TELL YOU THAT THEY WERE 15 MINUTES INSIDE THAT
17 HOUSE. FIFTEEN MINUTES INSIDE THE HOUSE. SOMEBODY SHE HAD
18 NEVER MET BEFORE. SOMEBODY SHE DIDN’T KNOW. SOMEBODY IN WHOSE
19 HOUSE SHE HAD NEVER BEEN BUT ONCE, BECAUSE SHE WAS IMPRESSED
20 WITH HIS CABINETRY. BECAUSE SHE LIKED THE CORIAN THAT WAS ON
21 THE KITCHEN COUNTER. SHE LIKED THE REPLACEMENT HANDLES THAT HE
22 PLACED IN HIS KITCHEN. AND SO SHE WANTED TO COME IN AND INSPECT
23 IT. AND SHE DID. AND WHILE SHE DID, KIDS WILL BE KIDS, THE
24 KIDS WERE ALL OVER THE PLACE. UPSTAIRS, MR. WESTERFIELD TOLD
25 THE COPS, OF COURSE, DOWNSTAIRS, INDOORS, OUTDOORS, IN THE
26 GARAGE, OUT OF THE GARAGE. OF COURSE. BECAUSE MOM DIDN’T PAY
27 ATTENTION FOR 15 MINUTES WHEN SHE ENGAGED IN THAT COMMUNICATION
28 WITH MR. WESTERFIELD. NO, SHE DID NOT.
3398
1 WHAT SHE WAS DOING INSTEAD WAS DISCUSSING WITH HIM
2 HOW THEY MIGHT CONNECT UP AGAIN. AND WE KNOW THAT BECAUSE, IN
3 HER OWN HANDWRITING, SHE WROTE BRENDA VAN DAM, DAMON VAN DAM AND
4 THE PHONE NUMBER.
5 THE KIDS WALKED OUT, BUT NOT UNTIL AFTER THEY
6 JUMPED UP AND DOWN ON THE FURNITURE IN THE LIVING ROOM, NOT
7 UNTIL AFTER THEY JUMPED UP AND DOWN ON OTHER BED SHEETS THAT
8 WERE DOWNSTAIRS, AT THE TIME THE VAN DAMS CAME TO SELL THE
9 COOKIES, THAT MR. WESTERFIELD WAS PREPARING TO WASH, BECAUSE
10 HE’S A SINGLE PARENT AND, OF COURSE, HE’S GOING TO DO HIS OWN
11 LAUNDRY.
12 THAT VERY SAME DAY, DAVID WESTERFIELD SAID TO
13 BRENDA VAN DAM, AND SHE’S GOING TO TESTIFY TO THIS, HE SAID HEY,
14 WHAT YOU DOIN’ LATER IN THE WEEK? LET’S GO TO IN CAHOOTS. PUT
15 YOUR BOOTS ON, WE’RE GONNA GO TO IN CAHOOTS. WE CAN DANCE JUST
16 LIKE LAST WEEK. AND YOU KNOW? ONE OF THOSE WOMEN YOU WERE
17 WITH, I THOUGHT SHE WAS PRETTY CUTE. YOU KNOW, THE ONES YOU
18 WERE DANCING WITH? THE ONES YOU WERE REALLY DANCING WITH? THE
19 ONES WHO WERE DANCING IN THE FLIRTATIOUS WAY? I WAS KIND OF
20 INTERESTED IN THAT WOMAN, BARBARA. I WAS KIND OF INTERESTED IN
21 THAT WOMAN, DENISE. YOU KNOW THEM?
22 BOY, DOES SHE KNOW THEM. YOU’RE GONNA LEARN SHE
23 KNOWS THEM INTIMATELY WELL. YOU’RE GONNA LEARN THEY’RE AMONG
24 HER CLOSEST FRIENDS IN THE WORLD IN EVERY SENSE OF THE WORD. SO
25 IN 15 MINUTES, MR. WESTERFIELD AND MRS. VAN DAM MAKE THEIR
26 ARRANGEMENTS. AND THE ARRANGEMENT IS ULTIMATELY MADE THAT SINCE
27 DAMON VAN DAM THAT FRIDAY NIGHT IS GONNA BABY-SIT THE CHILDREN,
28 ACCORDING TO BRENDA — ACTUALLY THAT STORY CHANGES. I HAVE TO
3399
1 JUST DIGRESS FOR A MOMENT AND TELL YOU, I THINK THE FIRST STORY
2 THAT BRENDA TOLD DAVID THAT’S GOING TO BE IN EVIDENCE IS THAT
3 DAMON WAS GOING TO GO OFF SKIING ON THE WEEKEND WITH HIS FRIEND,
4 BILL LIBBY. AND YOU’LL LEARN ABOUT BILL LIBBY, TOO. LATER THAT
5 STORY BECOMES SOMETHING ALONG THE LINES OF WELL, MY HUSBAND IS
6 BABY-SITTING THE CHILDREN. AND LATER AT THE BAR ON THE 1ST OF
7 FEBRUARY SHE TELLS IT LIKE IT REALLY IS, DAMON’S AT HOME. AND
8 IT’S OVERHEARD.
9 RIGHT AFTER THAT PHONE CALL — I’M SORRY — RIGHT
10 AFTER MR. WESTERFIELD RECEIVES FROM MRS. VAN DAM THE BRENDA
11 PHONE NUMBER, BRENDA GETS ON THE PHONE. DAMON, YOU’RE NOT GONNA
12 BELIEVE WHAT’S JUST HAPPENED.
13 MR. DUSEK: OBJECTION, HEARSAY.
14 THE COURT: WELL, I’M NOT CERTAIN — THIS IS ARGUMENT,
15 LADIES AND GENTLEMEN. THIS IS NOT EVIDENCE. THAT’S THE REASON
16 YOU’RE NOT TAKING NOTES.
17 MR. DUSEK: NOT ADMISSIBLE EITHER, YOUR HONOR.
18 THE COURT: WELL, I’LL WELCOME TO HEAR YOU AT SIDE BAR,
19 COUNSEL, BUT I HAVE NO IDEA WHERE HIS TRAIN OF THOUGHT IS EVEN
20 GOING.
21 MR. DUSEK: WE BOTH DO.
22 THE COURT: ALL RIGHT.
23
24
25 (PROCEEDINGS NOT PART OF THE PUBLIC RECORD.)
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22 (THE FOLLOWING PROCEEDINGS WERE HELD IN
OPEN COURT IN THE PRESENCE OF THE JURY:)
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24 THE COURT: LADIES AND GENTLEMEN, SINCE THIS IS THE FIRST
25 OF PROBABLY MANY OF THESE SIDEBAR CONFERENCES, I THINK WE OUGHT
26 TO TALK ABOUT THAT.
27 THE PURPOSE OF A SIDEBAR CONFERENCE IS VERY SIMPLE.
28 I HAVE A CHOICE WHEN THE LAWYERS WANT TO TALK TO ME BEFORE
3401
1 SOMETHING THAT DOESN’T DIRECTLY DEAL WITH YOU. AND THAT IS, I
2 CAN HAVE ALL OF YOU LEAVE THE COURTROOM OR I CAN MAKE OPHELIA
3 HERE COME OVER HERE AND SIT ON A STEP, AND WE HAVE A LITTLE
4 FOOTBALL HUDDLE AND WE DISCUSS IT.
5 NOW, DON’T STRAIN AN EAR TRYING TO HEAR WHAT IT IS
6 WE’RE TALKING ABOUT, BECAUSE IF IT’S MEANT FOR YOU TO HEAR
7 YOU’RE GOING TO HEAR IT, AND IF YOU DON’T HEAR IT, YOU WEREN’T
8 GOING TO HEAR IT ANYWAY.
9 ALL RIGHT. MR. FELDMAN.
10 MR. FELDMAN: AS SOON AS BRENDA VAN DAM LEAVES MR.
11 WESTERFIELD’S HOUSE, SHE GETS ON THE TELEPHONE AND SHE CALLS HER
12 HUSBAND. DAMON, YOU’RE NOT GONNA BELIEVE WHAT JUST HAPPENED.
13 WELL, WHAT HAPPENED, HONEY? ONE OF OUR NEIGHBORS JUST INVITED
14 US TO AN ADULT PARTY. YOU MEAN SOMEBODY DOES THAT, TOO? NO.
15 THE VAN DAMS CONTINUE TO DISCUSS WHAT’S GONNA
16 HAPPEN ON FRIDAY NIGHT BECAUSE, BY NOW, DAVID WESTERFIELD AND
17 BRENDA VAN DAM HAVE DISCUSSED THE FACT THAT THEY’RE BOTH GOING
18 TO DAD’S ON FRIDAY NIGHT, FEBRUARY THE 1ST. AND THERE’S
19 ABSOLUTELY NO QUESTION FROM THE EVIDENCE THAT ON FRIDAY NIGHT,
20 FEBRUARY THE 1ST, BRENDA VAN DAM AND DAVID WESTERFIELD SAW EACH
21 OTHER AT DAD’S. NO ISSUE. NO DISPUTE.
22 SECOND DISCREET TIME, FEBRUARY 1ST. WELL, IT’S THE
23 SECOND WEEK IN A ROW THAT DENISE KEMEL IS BEING SENT OFF ON HER
24 VERY LAST LEGS TO GO MOVE TO THE EAST COAST. IT’S THE SECOND
25 WEEK IN A ROW FOR A GIRLS NIGHT OUT. IT’S THE SECOND WEEK IN A
26 ROW THAT THEY’RE GIVING DENISE A GOING AWAY PARTY.
27 BEFORE BARBARA AND DENISE GET TO THE VAN DAM
28 RESIDENCE, WHICH IS ABOUT 7:30, 8 O’CLOCK, 8:00, 8:30, DEPENDS
3402
1 ON WHOSE TESTIMONY YOU ADOPT, THE TWO WOMEN HAVE A BOTTLE OF
2 WINE TOGETHER, SO THAT BY THE TIME THEY SHOW UP — THIS IS NOW
3 DENISE KEMEL AND BARBARA EASTON — BY THE TIME THEY SHOW UP AT
4 THE VAN DAMS, THEY’RE A LITTLE BIT, IN BARBARA’S WORDS, TOASTED.
5 AND IN FACT, BARBARA EASTON STARTS TALKING TO
6 DANIELLE VAN DAM, AND BRENDA VAN DAM LATER TELLS POLICE “THAT
7 WAS MAKING ME VERY UNCOMFORTABLE. I DON’T WANT HER TALKING TO
8 MY DAUGHTER.” THIS WOMAN TALKING TO MY DAUGHTER? HUH-UH. SHE
9 DIDN’T EVEN KNOW HER.
10 AND SO INTO THE GARAGE THE WOMEN GO. THAT IS NOW
11 THE THREE WOMEN, DENISE, BRENDA AND BARBARA. AND WHAT DO THEY
12 DO? WELL, TWO OF THE WOMEN, DEPENDING ON WHICH SPIN OF THE
13 TESTIMONY YOU BELIEVE, BARBARA AND DENISE HAVE A BOTTLE OF BEER.
14 SOMEBODY FIRES UP A JOINT. THE WOMEN START TO SMOKE IT. YOU
15 KNOW WHAT? THERE’S SOMETHING UNUSUAL ABOUT THIS GARAGE. THIS
16 GARAGE DOOR HAS BEEN ALTERED. IT’S BEEN ALTERED BY DAMON VAN
17 DAM. THE REASON IT’S BEEN ALTERED — THE MANNER IN WHICH IT’S
18 BEEN ALTERED BY DAMON VAN DAM IS TO MAKE IT IMPOSSIBLE, IF YOU
19 LOCK IT FROM THE INSIDE, TO COME INTO THE GARAGE FROM THE HOUSE.
20 IN OTHER WORDS, JUST LIKE YOUR HOUSE BUT REVERSED. SO THAT THE
21 VAN DAMS, ACCORDING TO DAMON, CAN SMOKE IN THE GARAGE.
22 AND WE ARE NOT JUST TALKING CIGARETTES OR CIGARS.
23 HE’LL SAY THAT. BUT POT, TOO, AND DRINK AND ENGAGE, IN HIS
24 WORDS, IN OTHER RISQUE BEHAVIORS.
25 THAT NIGHT, AS THE WOMEN STAYED IN THE GARAGE
26 GETTING HIGH, DRINKING, OUT COMES DAMON. HEY, WHAT’S UP? GIVE
27 ME A HIT. (INHALE) GIVE ME ANOTHER HIT. GIVE ME ANOTHER HIT.
28 HE’S ALREADY TWO BEERS GONE. HE’LL TELL YOU HE HAD TWO BEERS
3403
1 BEFORE HE EVER GOT TO THAT GARAGE. HAS A LITTLE BIT OF POT.
2 HONEY, IT’S A LITTLE COLD IN HERE, I THINK I’LL GO IN THE HOUSE,
3 AND THEN HE DOES. KEMEL MAY HAVE GOTTEN A PHONE CALL, AS
4 COUNSEL ARGUES, AND THE DOOR MAY HAVE BEEN LEFT OPEN. WE DON’T
5 KNOW BECAUSE NONE OF THE WITNESSES ARE ABLE TO REMEMBER.
6 MR. DUSEK: OBJECTION, ARGUMENTATIVE.
7 THE COURT: OVERRULED.
8 MR. FELDMAN: AND WE KNOW THAT BECAUSE THEY’RE GOING TO
9 TESTIFY TO IT, AND WE KNOW THAT BECAUSE THEY’LL TELL YOU HOW
10 IMPAIRED THEY WERE. THEY’RE GONNA TELL YOU HOW INTOXICATED THEY
11 WERE.
12 SO NOW THERE’S A DOOR OPEN. DAMON’S IN THE HOUSE,
13 AND THE WOMEN DECIDE IT’S TIME TO GO PARTY, BECAUSE IT’S FRIDAY
14 NIGHT AND IT’S DAD’S AND IT’S TIME FOR THE GOING AWAY PARTY
15 AGAIN FOR DENISE. SO OFF THE THREE WOMEN GO IN BRENDA VAN DAM’S
16 CAR TO DAD’S BAR. AND WHEN THEY GET TO DAD’S BAR, WHO DO THEY
17 SEE THERE? THEY SEE DAVID WESTERFIELD, WHO BUYS THEM A COUPLE
18 OF ROUNDS OF DRINKS. THEY SEE GARRY HARVEY THERE. THEY SEE
19 JEFF FEECE THERE. AND THEY’RE DRINKING AND THEY’RE DRINKING AND
20 THEY’RE DRINKING.
21 BUT THEY’RE NOT JUST DRINKING THERE. BRENDA, IN
22 SPECIFIC, IS PUTTING MOVES ON PEOPLE, MEANING, SHE’S BEHAVING IN
23 A SEXUALLY AGGRESSIVE MANNER, MEANING THAT THE FLIRTATIOUS
24 REMARK THAT THE BARTENDER MADE CONCERNING HER BEHAVIOR ON THE
25 25TH IS DUPLICATED ON THE 1ST OF FEBRUARY, ON THE EVENING OF THE
26 1ST OF FEBRUARY. SO SHE DOESN’T JUST DANCE WITH MR.
27 WESTERFIELD, WHICH SHE’S GOING TO DENY. SHE DOESN’T JUST DANCE
28 WITH TWO OR THREE OTHER MEN, SHE DANCES WITH THE WOMEN AS WELL.
3404
1 AND ONE OF THE THINGS SHE COMPLAINS STRONGLY ABOUT
2 IS THAT BARBARA EASTON KEEPS RUNNING HER HAND ON DOWN HER
3 BREASTS WHILE SHE’S DANCING PUBLICLY, AND SHE FINDS IT PUBLICLY,
4 NOT PRIVATELY, PUBLICALLY EMBARRASSING, SO SHE WISHES SHE’D STOP
5 IT IN PUBLIC.
6 SHE GETS HER WISH FOR A WHILE. UP COMES RICH
7 BRADY. UP COMES KEITH STONE. RICH BRADY, HOW ARE YOU? YOU
8 COACHED MY KIDS’ SOCCER TEAM. YOU GOT ANY DRUGS? GOT ANY
9 MARIJUANA? RICH, YOU’VE SOLD ME POT BEFORE. COME ON.
10 RICH BRADY AND KEITH STONE, AS MR. DUSEK TOLD YOU,
11 LATER ARE SEEN OUTSIDE IN THE BAR. THE TESTIMONY WILL BE THAT
12 THE WOMEN WERE DANCING. I DON’T KNOW WHETHER THEY MOVED THE
13 CHAIRS INSIDE OF DAD’S OR NOT. I KNOW THE EVIDENCE WILL SHOW
14 YOU THAT THE WOMEN WERE DANCING WITH EACH OTHER AND DANCING WITH
15 OTHER MEN IN A MANNER DESIGNED TO SOLICIT OTHER MEN TO COME TO
16 BRENDA VAN DAM’S RESIDENCE THAT VERY EVENING TO ENGAGE IN
17 CERTAIN TYPES OF BEHAVIORS THAT I DON’T NEED TO LEAVE TO YOUR
18 IMAGINATION.
19 AND, IN FACT, THERE WILL BE WITNESSES TESTIFYING IN
20 THIS COURT, AT LEAST SEVERAL, WHO WILL SAY, YOU KNOW, BRENDA
21 KEPT ASKING ME TO COME HOME AND, YOU KNOW, I’M JUST NOT
22 COMFORTABLE WITH THAT BEHAVIOR AND I SAID NO. AND ANOTHER MAN
23 WILL TESTIFY, YOU KNOW, BRENDA, SHE WAS TRYING TO GET ME TO COME
24 HOME THAT NIGHT, I DON’T KNOW, TO BE WITH HER HUSBAND? I
25 COULDN’T DO THAT. I WAS TOO UNCOMFORTABLE.
26 SO, ALTHOUGH BRENDA WAS TRYING TO BRING COMPANY
27 HOME FOR DAMON, IT WASN’T WORKING. THE WOMEN NOW ARE THREE OR
28 FOUR DRINKS TO THE WIND ON TOP OF WHAT THEY HAD CONSUMED
3405
1 PREVIOUSLY, BUT THEY DECIDE WE’RE NOT HIGH ENOUGH JUST YET, WHAT
2 WE NEED TO DO IS SMOKE SOME MORE DOPE. SO WHAT THEY DECIDE TO
3 DO, AND WHAT THEY LITERALLY DO, IS GO SECRETLY OUT THE DOOR INTO
4 THE PARKING LOT, AND THEY GET INTO BRENDA’S CAR, AND THEY ROLL
5 DOWN THE WINDOWS SO THAT THE SMOKE CAN BLOW OUT, AND THEY FIRE
6 UP ANOTHER JOINT — OR A JOINT, AND THEY’RE TOKIN’ THE JOINT.
7 AND THEY’RE TURNING THE RADIO UP SO LOUD IT CAN BE HEARD, AND
8 THEY ARE ROCKING OUT. THEY ARE LITERALLY ROCKING OUT, AND UP
9 COMES RICH BRADY AND KEITH STONE.
10 NOW, KEITH HAS AN INTEREST IN BARBARA THAT NIGHT.
11 AND WE KNOW THAT BECAUSE BRENDA LATER TELLS DAMON THAT KEITH
12 SAID HE TOOK SOMETHING TO MAKE HIM MORE POTENT. HE TOOK A
13 LITTLE BLUE PILL WITH A “V” ON IT AND HE REALLY HAD THE HOTS.
14 HE REALLY WANTED BRENDA — I’M SORRY, BARBARA, AND DENISE.
15 AND SO WHAT HAPPENS, ACCORDING TO THE TESTIMONY OF
16 BARBARA OR DENISE OR BRENDA OR ALL, IS THAT WHILE THE WINDOWS
17 ARE DOWN AND THE WOMEN ARE GETTING HIGH AND THEY’RE DRINKING
18 ADDITIONAL ALCOHOL, BARBARA AND KEITH START FRENCH KISSING.
19 NOW, THAT MAY BE OKAY, I DON’T KNOW. THAT’S JUST THE FACTS.
20 THAT’S WHAT THEY’RE DOING. THEY ARE OBSERVED TO DO THAT.
21 IT’S NOW 9:30, 10:00, 10:30. DAVID WESTERFIELD IS
22 INSIDE THE BAR STILL. THE WOMEN ARE OUTSIDE THE BAR STILL. BUT
23 THEY’RE PLAYING. THEY DON’T KNOW WHAT HE’S DOING. AND THERE’S
24 REALLY NOT GOING TO BE MUCH IN THE WAY AS TO WHAT DAVID WAS
25 DOING EXCEPT HE HAD ANOTHER DRINK AND LEFT A SHORT TIME LATER.
26 SO THE WOMEN APPARENTLY GET DONE DOING WHAT THEY’RE
27 DOING IN THE CAR AND THEY GO BACK INSIDE THE BAR, AND THEY
28 CONTINUE TO DRINK AND THEY CONTINUE TO DANCE, AND THEY CLOSE THE
3406
1 BAR DOWN FOR THE SECOND WEEK IN A ROW. ONLY THIS TIME BRENDA’S
2 BRINGING SOMEBODY HOME. SHE’S BRINGING THE TWO WOMEN, BARBARA
3 AND DENISE. AND SHE’S BRINGING HOME TWO MEN, RICH AND KEITH.
4 AND SHE IS GOING TO TELL YOU, RICH IS HER DRUG DEALER, AND KEITH
5 IS JUST SOMEBODY WHO’S — I DON’T KNOW — A RELATIVE?
6 INTERESTING RELATIONSHIPS HERE. INTERESTING EVIDENCE AS TO WHO
7 COMES IN THAT FRONT DOOR. INTERESTING AS TO WHO THEY ALLOW IN
8 THEIR DOOR. INTERESTING INTO THE RELATIONSHIPS.
9 WHEN THE MEN COME IN IT’S ABOUT 2:00, 2:30. THE
10 TESTIMONY FROM BRENDA WILL BE I CAME IN, I SAW THE LIGHT WAS
11 BLINKING. WE — ME AND DENISE IMMEDIATELY LOOKED AROUND. WE
12 SPOTTED THAT THE GARAGE DOOR WAS OPEN AND WE CLOSED IT. THIS IS
13 NOW AFTER 1:45.
14 REMEMBER MR. DUSEK TOLD YOU SOMEWHERE AROUND 1:45
15 DAMON CLAIMS TO HAVE WOKEN UP, THE LIGHTS BLINKING, THERE WAS A
16 FLASHING. THEY’VE GOT A 60-POUND WEIMARANER, BY THE WAY. IT’S
17 A BIG DOG. THIS DOG, YOU’RE GOING TO HEAR TESTIMONY, APPARENTLY
18 DOESN’T BARK MUCH, BUT WHEN IT BARKS, IT MIGHT POSE A SERIOUS
19 THREAT AT 60 POUNDS TO SOMEONE THAT’S NEVER BEEN IN THE
20 RESIDENCE BEFORE IN THE DARK OF NIGHT. SO THAT’S WHAT BRENDA
21 SAYS.
22 DENISE, WHAT HAPPENED? WELL, WHAT HAPPENED WAS
23 BRENDA AND I CAME IN THE HOUSE. WE WERE DRINKING PRETTY GOOD,
24 AND THE TWO OF US WENT UPSTAIRS, AND I SAW THAT DAMON WAS IN BED
25 AND WE WENT TO THE BATHROOM TOGETHER.
26 BARBARA, WHAT HAPPENED? WELL, WE GOT HOME. ME AND
27 BRENDA WENT UPSTAIRS. I GOT INTO BED WITH HER HUSBAND. WAS SHE
28 THERE? WELL, YEAH, SHE WAS THERE. WHAT DID HE DO? WELL, HE
3407
1 ROLLED OVER, HE PUT HIS ARMS AROUND ME, STARTED TO KISS ME. OH!
2 WAS SHE THERE THEN? WELL, I THINK SHE WAS THERE THEN. I DON’T
3 REMEMBER. I THINK SHE WAS THERE THEN, BUT SHE LEFT A LITTLE
4 WHILE LATER AND I STAYED IN BED WITH DAMON. AND THEY STAYED IN
5 BED JUST LONG ENOUGH FOR DAMON TO GET WHATEVER DAMON WANTED.
6 BECAUSE IN A WHILE, BRENDA WAS GETTING A LITTLE BIT
7 UNCOMFORTABLE WITH THE LENGTH OF TIME THAT BARBARA WAS STAYING
8 IN BED WITH DAMON, AND SHE WENT BACK UPSTAIRS AND SAID HEY, THE
9 GUYS DOWNSTAIRS ARE EMBARRASSING ME. THEY’RE STARTING TO MAKE
10 REMARKS ABOUT WHAT’S GOING ON UPSTAIRS. COME ON, GUYS. AND SHE
11 WATCHES AS DENISE — I’M SORRY — AS BARBARA GETS OUT OF BED
12 WITH HER HUSBAND.
13 DAMON WILL TESTIFY. SIR, DID THAT HAPPEN? YES, IT
14 DID. WELL, WHAT HAPPENED? WELL, BARBARA CAME OVER AND SHE GOT
15 IN BED WITH ME AND I PUT MY ARM AROUND HER AND I STARTED TO KISS
16 HER. DID YOU TELL THAT TO THE POLICE? NO. WHY? YOU DIDN’T
17 TELL THE — WAIT A MINUTE. YOU DIDN’T TELL THAT TO THE POLICE?
18 NO. OH!
19 BRENDA. DID YOU TELL THE POLICE WHAT HAPPENED?
20 NO. DIDN’T THE POLICE TELL YOU TO TELL THE TRUTH, THE WHOLE
21 TRUTH AND NOTHING BUT THE TRUTH? YES, THEY DID. DIDN’T THE
22 POLICE TELL YOU IT WAS ABSOLUTELY EXQUISITELY, EXCRUCIATINGLY
23 IMPORTANT TO KNOW EVERYBODY THAT HAD EVER BEEN IN THAT HOUSE?
24 “ANSWER: YES.” AND YOU DECIDED, DID YOU NOT, TO WITHHOLD THAT
25 INFORMATION FROM THE POLICE? YES.
26 YOU, SIR, MR. VAN DAM, MADE THEN A CONSCIOUS
27 DECISION, DID YOU NOT, TO WITHHOLD RELEVANT EVIDENCE CONCERNING
28 THE POSSIBLE DISAPPEARANCE OF YOUR DAUGHTER FROM THE POLICE?
3408
1 YES. YOU DECIDED, SIR, WHAT WAS RELEVANT OR NOT, CORRECT? YES.
2 THAT’S HIS TESTIMONY. THAT WILL BE HIS TESTIMONY. THAT WAS HIS
3 TESTIMONY AND YOU’LL HEAR IT JUST LIKE THAT.
4 BRENDA VAN DAM LATER ALSO FAILS TO DISCLOSE THESE
5 LITTLE TIDBITS THAT I’VE JUST ADDRESSED TO YOU.
6 FINALLY — I’M MOVING, BACK, SORRY — IT’S ABOUT
7 2:30 IN THE MORNING. DAMON HAS FINALLY MADE IT DOWNSTAIRS. HE
8 HAS SOME PIZZA AND COOKIES, SAYS HE, WITH THE MEN THAT HIS WIFE
9 HAS BROUGHT OVER. THE TWO WOMEN, DENISE AND BARBARA, IT’S TIME
10 FOR THEM TO GO, SO THEY APPARENTLY GO, AND THE MEN STAY. BUT
11 THEN BRENDA — DAMON SAYS, I TOLD THEM IT WAS TIME TO GO. I
12 SAID I WAS TIRED. THEY LEFT. TESTIMONY.
13 IT’S NOW QUARTER OF 3:00. DAMON TO BRENDA, COME
14 ON, HONEY, HOW ABOUT A LITTLE SOMETHING? NO. OKAY. IT’S 3:30.
15 ACCORDING TO DAMON, HE’S STILL AWAKE. THE LIGHTS BLINK. BUT
16 BEFORE IT’S 3:30, AND THE LIGHTS ARE BLINKING, ALL THE LIGHTS
17 ARE TURNED OFF IN THE UPSTAIRS OF THIS HOUSE.
18 THIS IS A TWO-BEDROOM HOUSE. I DON’T GOT THE POWER
19 POINT. I DON’T GOT THE TECHNOLOGY. WE’RE THE DEFENSE, NOT THE
20 PROSECUTION. THE LIGHTS UPSTAIRS, IT’S TOTALLY DARK, TOTALLY
21 DARK. THERE WILL BE TESTIMONY THAT THE ROOMS AREN’T SO CLEAR.
22 YOU CAN’T REALLY TELL, HAVING NEVER BEEN UPSTAIRS, YOU DON’T
23 KNOW WHOSE ROOM IS WHOSE, EXCEPT YOU MIGHT BE ABLE TO TELL THE
24 MASTER BEDROOM BECAUSE, IF YOU LOOK AT IT FROM A DISTANCE, YOU
25 CAN SEE THAT IT’S GOT A BIGGER FRAME MORE OR LESS.
26 BUT OTHERWISE, THERE’S JUST THREE ROOMS THAT AREN’T
27 PLAINLY MARKED. AND EVEN IF THEY WERE PLAINLY MARKED, YOU CAN’T
28 IDENTIFY THEM BY GENDER, AND EVEN IF YOU COULD IDENTIFY ‘EM BY
3409
1 GENDER, IT’S SO DARK YOU CAN’T SEE ‘EM, AND IT’S INTO THAT
2 NIGHTMARE THAT SOMEBODY MOVES.
3 YOU WILL HEAR NO EVIDENCE OF ANY KIND LINKING DAVID
4 WESTERFIELD TO THAT RESIDENCE. ABSOLUTELY NOTHING. THERE’S NOT
5 A SHRED OF EVIDENCE THAT PUTS DAVID WESTERFIELD IN THAT
6 RESIDENCE. THERE IS TONS OF EVIDENCE TO INDICATE THAT LAW
7 ENFORCEMENT TO THE VAN DAMS’ RESIDENCE PLAYED A PART DESPERATELY
8 SEEKING FOR CLUES. APPROPRIATELY, DESPERATELY SEEKING CLUES,
9 TEARING WALLS OUT, LITERALLY, FINGERPRINTING WALLS, PUTTING
10 STUFF CALLED NINHYDRIN ALL OVER THE WALLS. THIS IS STUFF THAT
11 BLACKENS, YOU’LL HEAR ABOUT IT, LUMINESCES THE AREA. DOING
12 EVERYTHING THEY POSSIBLY COULD TO DO ANYTHING THEY COULD TO
13 IDENTIFY WHAT HAPPENED TO DANIELLE. WHO DID THIS? WHO COULD
14 GET IN? WHO COULD GET PAST THAT DOG? WHO WOULD KNOW WHERE TO
15 GO? WHO WOULD KNOW THAT THE DOOR WAS UNLOCKED?
16 NOBODY’S CHECKED THE KIDS. WHEN DAMON PUT THE KIDS
17 TO BED HE DIDN’T CHECK ON ‘EM. YOU’LL HEAR THAT AS EVIDENCE.
18 WHEN BRENDA CAME IN SHE DIDN’T CHECK THE KIDS. YOU’LL HEAR THAT
19 AS EVIDENCE. EARLIER THAT EVENING, EARLIER THAT DAY BRENDA HAD
20 GONE SHOPPING AND LEFT DANIELLE ALONE AT MERVYN’S WHILE SHE WENT
21 AND CHASED AFTER HER TWO BOYS. EARLIER THAT EVENING, WHEN DAMON
22 GOT HOME, THE KIDS WERE HOME ALONE. MOM WASN’T THERE TO WATCH
23 ‘EM. THE OLDEST CHILD I THINK IS NINE.
24 THE NEXT MORNING THE PARENTS WERE CONCERNED.
25 TERRIBLE. AWFUL. FRIGHTENING. HORRIFYING. YOU’LL HEAR THE
26 911 TAPE OF BRENDA VAN DAM. AND WITHIN MINUTES THE COPS GET
27 THERE AND IN THOSE MINUTES OF TIME BRENDA AND DAMON, OBVIOUSLY,
28 HAVE A COMMUNICATION, THE EVIDENCE WILL SHOW, AND THEY DISCUSS
3410
1 IN THE PANIC OF THE FEAR OF THE LOSS OF THEIR DAUGHTER, WHAT DO
2 WE TELL THE COPS? WHAT ARE WE GOING TO SAY ABOUT OUR LIFESTYLE?
3 WHAT ARE WE GOING TO SAY ABOUT OUR USE OF DRUGS? WHAT ARE WE
4 GOING TO SAY ABOUT OUR RELATIONSHIP WITH BARBARA? WHAT ARE WE
5 GOING TO SAY ABOUT YOUR BEING IN BED WITH BARBARA LAST NIGHT?
6 WHAT ARE WE GOING TO SAY ABOUT YOUR SLEEPING WITH BARBARA,
7 BRENDA? WE’RE GOING TO TELL THEM NOTHING. WE’RE GOING TO LIE.
8 WE’RE GOING TO CONCEAL, BECAUSE WE ARE GOING TO DECIDE WHAT’S
9 IMPORTANT.
10 AND SO THE VERY FIRST SET OF OFFICERS THAT
11 INTERVIEW THE VAN DAMS, AN OFFICER CLARK, APPROXIMATELY 9:40
12 A.M., TELL US EVERYTHING THAT HAPPENED. NOT A WORD. NOTHING.
13 ONE OFFICER. OFFICER FLORES, SEVERAL HOURS LATER, TELL US WHAT
14 HAPPENED. NOTHING. OUR DAUGHTER’S NOT HERE. ANYTHING ELSE?
15 NOTHING. WHAT ABOUT BARBARA? WHO? WHAT?
16 BUT ONE OF THE OFFICERS — I TELL YOU FOLKS, YOU’RE
17 GOING TO SEE — WHAT YOU’RE GOING TO SEE, THE EVIDENCE IS GOING
18 TO SHOW THE SAN DIEGO POLICE DEPARTMENT EXPLODED IN ITS EFFORTS
19 IN THIS CASE. THE COMMUNITY EXPLODED. THE COPS DID, TOO. AND
20 THEY KNOW WHAT THEY’RE DOING. AND THEY SEPARATED THE VAN DAMS,
21 ALTHOUGH THEY DROVE THE VAN DAMS TOGETHER TO THE NORTHEAST
22 POLICE DEPARTMENT WHEN THEY FIRST TALKED TO THEM, AND THEY GOT
23 THE FIRST SERIES OF FALSE STATEMENTS FROM THE VAN DAMS. THE
24 WITHHOLDS. THEY BROUGHT THE VAN DAMS BACK HOME.
25 BUT AT THE SAME TIME ANOTHER OFFICER WAS
26 INTERVIEWING BARBARA EASTON. AND BARBARA, APPARENTLY HADN’T
27 SOBERED UP ENOUGH TO WITHHOLD THE INFORMATION ABOUT HER
28 RELATIONSHIP WITH THE VAN DAMS, HER LONG STANDING RELATIONSHIP,
3411
1 NOT JUST WITH BRENDA BUT WITH DAMON ALSO, AND SHE TOLD THEM THE
2 TRUTH. SHE SAID, YOU KNOW, THIS IS WHAT REALLY HAPPENED THAT
3 NIGHT. WE WERE SMOKING DOPE. WE WERE IN BED TOGETHER. WE WERE
4 HUGGING AND KISSING. WE WERE DOING THIS AND THAT. THIS IS WHAT
5 HAPPENED AT THE BAR.
6 AND THE COPS SAY WAIT A MINUTE. AND THE COPS MEET,
7 THEY COMMUNICATE, BECAUSE THIS IS WHAT THEY DO. THEY’RE SMART.
8 THEY’RE VETERANS. YOU’RE GOING TO SEE SOME VERY UNBELIEVABLE
9 POLICE WORK IN THIS CASE, FOLKS. BY SEGREGATING THE WITNESSES
10 THEY GET TO THE BOTTOM. AND THEY BRING THE VAN DAMS BACK AND
11 THEY SAY COME ON, TELL US THE TRUTH. AND STILL A DENIAL. DAMON
12 CONTINUES TO DENY, UNTIL ONE OF THE OFFICERS SAYS, YOU KNOW,
13 ENOUGH. BARBARA EASTON’S TALKED TO US. SHE’S ALREADY TOLD US.
14 DENISE, WE TALKED TO, WE ALREADY KNOW. FINALLY, DAMON DECIDES
15 MAYBE I BETTER TELL THE TRUTH, WHATEVER THAT MEANS. AND DAMON
16 THEN RELATES HIS VERSION OF THE EVENTS LEAVING OUT THE EXTENT TO
17 WHICH HE HAD CONSUMED ALCOHOL.
18 AS YOU KNOW, BECAUSE WE ALL LIVE IN THIS COMMUNITY,
19 THE NEXT 48 HOURS, THIS IS NOW THE 3RD, SUNDAY, SATURDAY IS THE
20 2ND, THE 1ST IS FRIDAY. SATURDAY IS THE DISAPPEARANCE REPORT
21 DATE. SUNDAY WE’RE ON NATIONAL TV IN SABRE SPRINGS, RIGHT IN
22 COME THE CAMERA CREWS TO AFFECT ALL OF OUR LIVES. BY MONDAY OF
23 THAT DAY (SIC), IT’S NOT JUST OUR LOCAL TELEVISION MEDIA, BUT
24 IT’S THE NATIONAL MEDIA THAT SURROUND OUR LIVES, AND EVERY
25 MINUTE OF EVERY DAY ALL OF US ARE SEEING BECAUSE WE’RE IMMERSED.
26 IF YOU WATCH TELEVISION, IF YOU LISTEN TO THE RADIO, IF YOU READ
27 THE NEWSPAPERS, THERE’S NO ESCAPING THIS ISSUE: WHERE IS
28 DANIELLE.
3412
1 COPS SEARCH OUT THE NEIGHBORHOOD, AND THE ONE HOUSE
2 WHERE SOMEBODY ISN’T IS DAVID’S. SO WHAT A SURPRISE WHEN DAVID
3 SHOWS UP AT 8:10 — I’M SORRY, 9:00, 8:50 I THINK IS THE TIME
4 THE TESTIMONY WILL BE, 8:50 A.M. HE’S FIRST CONTACTED BY A
5 SERGEANT NAMED W-R-A-Y ON THE 4TH. AND HE’S TALKED TO, AND
6 SERGEANT WRAY TALKS TO HIM AND THEY COMMUNICATE, AND MR.
7 WESTERFIELD IS COMPLETELY COOPERATIVE, AS YOU HEARD ON DIRECT.
8 COMPLETELY COOPERATIVE, LETTING THE POLICE GO ANY PLACE THEY
9 WANT, SIGNING CONSENTS, AUTHORIZATIONS FOR RELEASE OF
10 INFORMATION. WHATEVER THEY WANTED HE GAVE TO ‘EM, BECAUSE HE
11 KNEW THAT HE COULD HELP BY BEING COOPERATIVE, JUST LIKE THE REST
12 OF THE NEIGHBORHOOD, AND HE BEHAVED JUST LIKE ALL THE OTHER
13 NEIGHBORS DID. HE DID EVERYTHING THEY ASKED HIM TO DO CONTRARY
14 TO THE VAN DAMS. HE TOLD THEM THE TRUTH. AND HE GAVE ‘EM
15 PRECISE, DETAILED, EXPLICIT INFORMATION, WHICH WAS LATER USED BY
16 THE COPS TO BACKTRACK AND PROVE THAT WHAT HE SAID WAS TRUE.
17 YOU KNOW, I WENT OUT TO — I DON’T HAVE THAT POWER
18 POINT. I WENT OUT TO GLAMIS AND I GOT PULLED OUT OF THE DESERT.
19 THE GUY’S NAME IS DAN CONKLIN. TALK TO HIM. HEY, YOUR NAME
20 CONKLIN? YEAH. YOU KNOW THIS GUY? I DON’T KNOW HIS NAME. DID
21 YOU PULL SOME GUY OUT OF THE DESERT? OUT OF THE SAND? YES.
22 OH! DOES HE OWE YOU ANY MONEY? YEAH, I THINK THE GUY OWES ME
23 80 BUCKS. MR. WESTERFIELD, DID YOU OWE MR. CONKLIN ANY MONEY?
24 YEAH, I THINK I OWED HIM 80 BUCKS. MR. WESTERFIELD, DID YOU GO
25 ANYPLACE ELSE? YEAH, I WENT TO THE SILVER STRAND. WELL, HOW
26 CAN YOU PROVE THAT? WELL, THIS INCIDENT OCCURRED WHERE THEY
27 CLAIMED I OVERPAID THEM. I DIDN’T OVERPAY THEM BUT THEY SAID I
28 DID. I GO TO THE A.T.M.S, YOU’LL SEE IT, IT PAYS ME IN $20
3413
1 INCREMENTS. THIS GUY TELLS ME I PAID HIM WITH A 50. DOESN’T
2 MAKE SENSE TO ME. I TOLD HIM THAT. NOT ONLY DID I TELL HIM
3 THAT, BUT AFTER HE CAME TO MY MOTOR HOME AND ASKED ME WHETHER OR
4 NOT I WANTED THE MONEY BACK AND I TOOK THE MONEY, I THOUGHT, YOU
5 KNOW, THIS ISN’T REALLY THE RIGHT THING. SO I WENT BACK TO HIM
6 AND SAID, YOU KNOW, I DON’T FEEL RIGHT TAKING THIS MONEY. IT’S
7 NOT MINE. HE TOLD THE POLICE, I FILLED MY MOTOR HOME UP TWICE.
8 YOU HEARD IN OPENING STATEMENT OF MR. DUSEK THREE TIMES, YOU’LL
9 SEE THE RECEIPTS. THERE’S FIVE RECEIPTS. TWO OF THE RECEIPTS
10 IMPLICATE THE SAME GAS STATION AND GAS TANKS BEING FILLED UP
11 WITHIN ABOUT SEVEN MINUTES OF EACH OTHER. ONE IS FOR I THINK
12 SIXTY-FOUR EIGHTY-FIVE DOLLARS, WHICH IS ABOUT THE COST FOR THE
13 MOTOR HOME. THE OTHER RECEIPT’S FOR 12 BUCKS. THEY’RE NOT
14 CONNECTED TO WESTERFIELD. YOU MAY SEE EVIDENCE THAT HE HAS A
15 HABIT OF GRABBING THINGS AND MOVING THEM OUT OF THE WAY.
16 ON THE 2ND OF FEBRUARY, ON THE 2ND — I’M MOVING
17 BACK ON YOU FOLKS, SORRY — ON THE 2ND OF FEBRUARY, THAT WAS THE
18 DAY MR. WESTERFIELD WENT TO THE STRAND, BUT HE ALSO CAME BACK
19 HOME. AND WHEN HE CAME BACK HOME HE TRIED TO PULL HIS MOTOR
20 HOME UP IN FRONT OF HIS HOUSE.
21 I NEED TO DIGRESS FOR A MOMENT AND REMIND — AND
22 JUST TELL YOU THE EVIDENCE. THE EVIDENCE IS THAT THAT MOTOR
23 HOME WAS ALL OVER THE NEIGHBORHOOD. IT WAS A BANE — IT WAS A
24 BANE TO THE NEIGHBORHOOD. DAMON VAN DAM COMPLAINED TO
25 NEIGHBORS, COMPLAINED TO THE HOMEOWNERS ASSOCIATION THAT IT WAS
26 A VIOLATION OF THE CC&RS, WHICH IS COVENANTS, CONDITIONS AND
27 RESTRICTIONS. AND FOR THOSE OF YOU THAT DON’T LIVE IN
28 RESIDENTIAL COMMUNITIES, YOU’RE LUCKY. BUT FOR THOSE OF YOU
3414
1 THAT DO, YOU UNDERSTAND YOU’VE GOT TO STICK WITHIN THE
2 GUIDELINES. IT’S LIKE A CONDOMINIUM ASSOCIATION.
3 SO THERE WERE PEOPLE THROUGHOUT THE NEIGHBORHOOD
4 WHO WERE CONSTANTLY COMPLAINING. THAT DARNED MOTOR HOME WAS
5 ALWAYS AROUND. THE MAN WOULD LEAVE THE MOTOR HOME AROUND.
6 DAMON VAN DAM SAID TO A NUMBER OF PEOPLE, THAT MOTOR HOME, YOU
7 KNOW, I CAN SEE IT. NOT ONLY IS IT ON THE EAST SIDE OF THE
8 STREET, I CAN SEE IT LOOKING OUT MY WINDOW. RICH BRADY — I’M
9 SORRY. BRENDA COMPLAINED TO RICH BRADY THAT DAVID WOULD LEAVE
10 HIS MOTOR HOME ON THE STREET, AND THE TWO OF THEM WOULD JOKE, OH
11 JEEZ, THE WINNEBAGO’S OUT THERE AGAIN.
12 THIS IS A FAMILY NEIGHBORHOOD, FOLKS. THIS IS A
13 FAMILY NEIGHBORHOOD. THERE’S — A LOT OF IT IS LITTLE KIDS.
14 THEY’RE ALL OUT THERE PLAYING. AT THE END OF THE STREET IS A
15 PARK. AND AT THAT PARK, THERE’S GOING TO BE EVIDENCE, MR.
16 WESTERFIELD WOULD PUT HIS MOTOR HOME. THERE’S GOING TO BE
17 EVIDENCE THAT THERE WERE PEOPLE INSIDE THE MOTOR HOME.
18 YOU HEARD EVIDENCE ON DIRECT — ON DIRECT EXAM,
19 SORRY — ON OPENING STATEMENT FROM MR. DUSEK THAT THERE’S A
20 FINGERPRINT IN THE MOTOR HOME. YEAH, THERE’S ALSO TWO OTHER
21 FINGERPRINTS YOU DIDN’T HEAR ABOUT THAT HAVE BEEN SITTING THERE
22 FOR MONTHS FROM GIRLS NAMED DANIELLE L. I’LL SAY AND JENNIFER
23 L., OKAY. THESE ARE MINOR CHILDREN THAT ARE FRIENDS OF ONE OF
24 MR. WESTERFIELD’S GIRLFRIENDS. ONE’S ACTUALLY THE DAUGHTER AND
25 ONE’S HER FRIEND. FINGERPRINTS FROM YOUNG FEMALES THAT HAVE
26 BEEN SITTING THERE FOR MONTHS.
27 ULTIMATELY — NOW I NEEDED TO SEGUE THERE, SORRY.
28 NOW I’M SEGUEING BACK. HOPEFULLY THIS DOESN’T PUT ALL OF YOU TO
3415
1 SLEEP, AND HOPEFULLY I’M COMMUNICATING IN A WAY THAT YOU CAN
2 TRACK ME.
3 WHEN DAVID WAS CONVERGED ON BY LAW ENFORCEMENT, SIX
4 SEPARATE POLICE OFFICERS TALKED TO HIM FOR A PERIOD OF ABOUT SIX
5 TO 12 HOURS AND THEN SOME. MR. WESTERFIELD WAS TOTALLY
6 COOPERATIVE. I’VE ALREADY TOLD YOU THAT. BY THE 6TH OF
7 FEBRUARY — YEAH, BY THE 6TH OF FEBRUARY, LAW ENFORCEMENT WAS
8 PRETTY MUCH DONE WITH MR. WESTERFIELD. THEY HAD SEIZED HIS
9 COMPUTERS. YOU SAW A COUPLE OF PICTURES OF NAKED GIRLS. DARN.
10 THERE WERE THREE C. D.S — I’M SORRY, THREE ZIP DISKS, FOR THOSE
11 OF YOU THAT HAVE COMPUTER LITERACY, THAT ARE WHAT, ABOUT A
12 HUNDRED GIGS, A HUNDRED MEGS, AND THREE C. D.S, WHICH ARE 600
13 MEGS, WHICH ARE THOUSANDS OF PICTURES OF ADULT LARGE BREASTED
14 WOMEN, WHICH YOU WILL LEARN IS MR. WESTERFIELD’S PREFERENCE.
15 IN EACH OF THOSE PICTURES, NOT THE SIX SMALL
16 CHILDREN THAT YOU WERE SHOWN ON DIRECT, THEY’RE THERE, NO ISSUE.
17 BUT THE 1700 OR 1800 OTHER PHOTOS IN ANOTHER NOTEBOOK, AND A
18 NUMBER OF MPEGS, OKAY. WHAT MR. DUSEK REFERRED TO IS WHAT HE
19 CALLED “MEN FORCING THEMSELVES ON YOUNG GIRLS,” OKAY,
20 AN ADULT WOMAN SIMULATING A RAPE, BUT YOU’RE GONNA SEE
21 CONSENSUAL SEXUAL INTERCOURSE. THAT’S WHY WE TALKED TO YOU
22 ABOUT THIS IN VOIR DIRE IN THESE MPEGS. AND IN EVERY ONE OF
23 THESE MPEGS, AND IN EVERY ONE, VIRTUALLY EVERY SINGLE PHOTO,
24 IT’S ADULT WOMEN. WE DON’T SPECULATE. WE PROVE.
25 TOOK SIX INTERVIEWS TO GET TO THE BOTTOM OF THE VAN
26 DAM STORY. SIX SEPARATE INTERVIEWS. WHY?
27 WELL, ON THE 6TH OF FEBRUARY, DAVID WESTERFIELD WAS
28 RELEASED. AND WE ALL KNOW THAT FROM THE 6TH ON HE’S GOT AN
3416
1 ALIBI. BECAUSE IF DANIELLE VAN DAM WAS KILLED AFTER THE 6TH, WE
2 ALIBI HIM. YOU KNOW HOW WE ALIBI HIM? I KNOW THAT’S A TERM
3 THAT MIGHT OFFEND SOME FOLKS. THE POLICE DEPARTMENT OF SAN
4 DIEGO KEPT HIM UNDER CONTINUOUS 24-HOUR SURVEILLANCE. THE MAN
5 COULDN’T GO ANYWHERE WITHOUT BEING FOLLOWED. TRUE. THE
6 NATIONAL MEDIA PARKED ITS CAMERAS ON HIS FRONT DOOR SO THAT
7 LITERALLY, WHEN DAVID WESTERFIELD WENT TO THE BANK, WENT TO
8 WENDY’S, WENT TO HIS LAWYER’S OFFICE, WE ALL WATCHED, EVEN HIS
9 LAWYERS. WHEN HE MOVED, IT WAS BROADCAST OVER THE RADIO. EVERY
10 MOVE.
11 NOW I’LL MOVE TO THE 27TH. THIS IS THE DAY THE
12 BODY WAS RECOVERED. FEBRUARY THE 27TH. HOWEVER IT HAPPENED, IT
13 HAPPENED. DANIELLE VAN DAM’S BODY WAS FOUND. WE DON’T
14 SPECULATE. THIS IS THE TESTIMONY. BRIAN BLACKBOURNE IS THE
15 FORENSIC PATHOLOGIST. SIR, WHAT WAS THE CONDITION OF THE BODY?
16 “ANSWER: COMPLETELY DECOMPOSED. SIR, DO YOU HAVE AN OPINION AS
17 TO CAUSE OF DEATH? NO. IT WOULD BE SPECULATION. I CAN’T
18 POSSIBLY GUESS. IT’S NOT POSSIBLE. WAIT A MINUTE, SIR. YOU
19 LOOKED TO SEE WHETHER OR NOT THERE WAS EVIDENCE OF GUNSHOT
20 INJURIES — I MEAN SKULL SHOTS, RIGHT? RIGHT. DID YOU SEE ANY?
21 NO. SO GUNSHOT’S OUT.
22 OKAY. KNIFE INJURIES. YOU’D EXPECT TO SEE
23 SOMETHING ON THE BONES NICKED. THERE WERE BONES SURVIVING,
24 RIGHT? RIGHT. SEE ANYTHING? NO. RULED OUT.
25 STRANGULATION. THERE’S SOMETHING CALLED THE HYOID
26 CARTILAGE AND THE THYROID BONE, OR VISA VERSA, NEITHER OF WHICH
27 IS IMPACTED IN DANIELLE VAN DAM. IT IS ABSOLUTELY IMPOSSIBLE,
28 ABSOLUTELY IMPOSSIBLE TO KNOW HOW SHE DIED. YOU CAN’T PROVE IT.
3417
1 YOU CAN GUESS AT IT BUT YOU CAN’T PROVE IT.
2 SUFFOCATION. DR. SPERBER, SIR, YOUR JOB, YOU’RE A
3 FORENSIC ODONTOLOGIST. OH, THAT MEANS YOU’RE A FORENSIC
4 DENTIST. OH, YOU TESTIFY ALL OVER THE UNITED STATES ON BITE
5 MARK CASES AND IDENTIFYING BODIES AND YOU’VE BEEN TO 9-11 SITES
6 AND YOU’VE BEEN TO OKLAHOMA, YOU’RE THE MAN WE GO TO TO GET
7 IDENTIFICATIONS, RIGHT? RIGHT. SIR, WITH REGARD TO YOUNG
8 DANIELLE’S TEETH, WHAT HAPPENED? DECOMPOSITION. WELL, WHAT
9 ABOUT THIS BUSINESS OF GRAVITY? OH, NO, WE CAN’T SAY THAT.
10 WERE THERE ANY TEETH MISSING? “ANSWER: YES. OH, WAS HER FOOT
11 MISSING? YES. OH, SO WERE HER TEETH WITH HER FOOT? NO
12 EVIDENCE OF CAUSE OF DEATH. YES, EVIDENCE OF TIME OF DEATH.
13 THE SCIENCE, THE SCIENCE IS GOING TO COME TO MR.
14 WESTERFIELD’S RESCUE, BECAUSE THE CRIME SCENE — I’M SORRY, THE
15 RECOVERY SITE, LAW ENFORCEMENT COLLECTED UP AS MUCH AS IT COULD,
16 AND YOU’RE GOING TO HEAR THE RESULTS. AND WHEN YOU HEAR THOSE
17 RESULTS, YOU’RE GOING TO BE CONVINCED BEYOND ANY DOUBT THAT IT
18 WAS IMPOSSIBLE, IMPOSSIBLE FOR DAVID WESTERFIELD TO HAVE DUMPED
19 DANIELLE VAN DAM IN THAT LOCATION. THE EVIDENCE WILL SHOW
20 BEYOND DOUBT IT WAS IMPOSSIBLE FOR HIM TO HAVE PLACED HER THERE.
21 THEIR EVIDENCE.
22 SO WE HAVE DOUBTS. WE HAVE DOUBTS AS TO CAUSE OF
23 DEATH. WE HAVE DOUBTS AS TO THE IDENTITY OF DANIELLE VAN DAM’S
24 KILLER. WE HAVE DOUBTS AS TO WHO LEFT HER WHERE SHE RESIDED,
25 WHERE SHE REMAINED, AND WE HAVE DOUBTS AS TO WHO TOOK HER.
26 THANK YOU.
27 THE COURT: OKAY.
28 MR. DUSEK, LET’S CALL YOUR FIRST WITNESS, SIR.
3418
1 MR. DUSEK: JULIE HENNES.
2 THE COURT: ALL RIGHT.
3
4 -JULIE HENNES, +
5 PLAINTIFF’S WITNESS, HAVING BEEN SWORN, TESTIFIED AS FOLLOWS:
6
7 THE COURT: PLEASE HAVE A SEAT, MA’AM.
8 THE CLERK: WOULD YOU PLEASE STATE YOUR NAME AND SPELL IT
9 FOR THE RECORD?
10 THE WITNESS: MY NAME IS JULIE HENNES, J-U-L-I-E,
11 H-E-N-N-E-S.
12
13 DIRECT EXAMINATION +
14 BY MR. DUSEK:
15 Q. ARE YOU MARRIED, MA’AM?
16 A. YES, I AM.
17 Q. HOW LONG HAVE YOU BEEN MARRIED?
18 A. ALMOST 16 YEARS.
19 Q. WHAT PART OF TOWN DO YOU LIVE IN?
20 A. WE LIVE IN THE SABRE SPRINGS AREA OF SAN DIEGO.
21 Q. WHAT STREET?
22 A. MOUNTAIN PASS ROAD.
23 Q. I DON’T NEED YOUR ADDRESS, BUT DO YOU LIVE IN
24 RELATIONSHIP TO THE VAN DAMS?
25 A. YES, WE DO.
26 Q. WHERE DO YOU LIVE IN RELATIONSHIP TO THEM?
27 A. ACROSS THE STREET.
28 Q. WHO ALL DO YOU LIVE WITH?
3419
1 A. I LIVE WITH MY HUSBAND AND MY TWO CHILDREN.
2 Q. HOW OLD ARE YOUR CHILDREN?
3 A. EIGHT AND FIVE.
4 Q. BOYS OR GIRLS?
5 A. ONE BOY AND ONE GIRL.
6 Q. WHICH IS WHICH?
7 A. THE EIGHT-YEAR-OLD IS THE GIRL AND THE
8 FIVE-YEAR-OLD IS THE BOY.
9 Q. AND YOU LIVED IN THAT NEIGHBORHOOD FOR HOW LONG?
10 A. ALMOST SIX YEARS.
11 Q. WERE YOU THE ORIGINAL OWNER OF YOUR HOME?
12 A. YES, WE WERE.
13 Q. DO YOU KNOW MR. WESTERFIELD?
14 A. I DO NOT.
15 Q. DO YOU KNOW WHO HE IS?
16 A. YES, I DO.
17 Q. DO YOU SEE HIM IN COURT TODAY?
18 A. YES. HE’S RIGHT THERE.
19 Q. INDICATING WHICH INDIVIDUAL, MA’AM?
20 A. THE GENTLEMAN WITH THE WHITE SHIRT — HE’S THE
21 SECOND GENTLEMAN.
22 MR. DUSEK: MAY THE RECORD REFLECT SHE’S IDENTIFIED THE
23 DEFENDANT?
24 THE COURT: YES.
25
26 BY MR. DUSEK:
27 Q. HOW IS IT THAT YOU KNOW HIM, MA’AM, OR KNOW WHO HE
28 IS?
3420
1 A. HE LIVED IN MY NEIGHBORHOOD ON THE CORNER ACROSS
2 THE STREET — ACROSS TWO STREETS DIAGONAL FROM ME.
3 (MARKED FOR ID: = TRIAL EX.1 AERIAL PHOTOS A-E)
4 Q. WE’VE HAD MARKED AS COURT’S EXHIBIT 1 AERIAL
5 PHOTOGRAPHS LABELED AT THE TOP “NEIGHBORHOOD AERIALS,” AND IT’S
6 LABELED AT THE TOP “A” THROUGH “E.”
7 DO YOU RECOGNIZE WHAT WE HAVE DEPICTED HERE, MA’AM?
8 A. I DO. IT’S OUR NEIGHBORHOOD.
9 Q. LET ME GIVE YOU THE POINTER.
10 PHOTOGRAPH “A” APPEARS TO BE A STREET RUNNING FROM
11 THE BOTTOM OF THE PHOTOGRAPH TO THE TOP OF THE PHOTOGRAPH.
12 WHAT’S THAT CALLED?
13 A. THAT’S MOUNTAIN PASS ROAD.
14 Q. AND APPEARS TO BE A PARK OR GRASSY AREA ON THE
15 RIGHT HAND SIDE THERE AT THE INTERSECTION?
16 A. YES.
17 Q. WHAT INTERSECTION IS THAT?
18 A. THAT’S THE INTERSECTION OF SPRINGHURST AND MOUNTAIN
19 PASS.
20 Q. MOUNTAIN PASS, AS WE’RE LOOKING AT IT, IS THAT THE
21 STREET THAT YOU LIVE ON?
22 A. YES, IT IS.
23 Q. AND THAT, AS YOU COME TO YOUR HOUSE, DO YOU MAKE A
24 TURN AT THIS INTERSECTION AND THEN GO DOWN TO YOUR HOUSE?
25 A. I DO. I TURN LEFT USUALLY COMING UP THE HILL.
26 Q. ALL RIGHT.
27 AND ON THAT FIRST PHOTOGRAPH “A” DO YOU SEE WHERE
28 MR. WESTERFIELD’S HOME WOULD BE?
3421
1 A. I DO.
2 Q. COULD YOU USE THE POINTER AND POINT IT OUT, PLEASE?
3 A. IT’S RIGHT HERE IN THIS CORNER.
4 Q. ON THE CORNER?
5 COULD YOU STEP TO THE BOARD AND LET ME GIVE YOU A
6 BLACK FELT PEN. CAN YOU REACH HIS HOUSE AND PUT A “DW” ON HIS
7 ROOF?
8 A. (WITNESS COMPLYING.)
9 Q. WHILE YOU’RE STILL THERE, DO YOU SEE THE VAN DAM
10 HOME?
11 A. I DO.
12 Q. WHERE IS THAT? POINT IT OUT FIRST BEFORE YOU MARK
13 IT.
14 A. OH. IT’S HERE. IT’S THE SECOND HOUSE IN.
15 Q. COULD YOU NOW PUT A “VD” ON THEIR ROOF?
16 A. YES. (WITNESS COMPLYING.)
17 Q. IF YOU CAN REACH.
18 AND YOUR HOUSE IS ACROSS THE STREET FROM THE VAN
19 DAMS’?
20 A. THAT’S CORRECT.
21 Q. USING PHOTOGRAPHS “B,” “C,” “D,” OR “E” DO YOU SEE
22 YOUR HOUSE?
23 A. MY ROOF IS HERE.
24 Q. THAT’S IN PHOTOGRAPH “B”?
25 A. THAT’S CORRECT.
26 Q. COULD YOU PUT A “JH” ON YOUR ROOF?
27 A. (WITNESS COMPLYING.)
28 Q. SO THAT WOULD MEAN THE VAN DAMS ARE ACROSS THE
3422
1 STREET WITH THE GRAY ROOFED HOUSE?
2 A. THAT’S CORRECT, YES.
3 Q. COULD YOU PUT A “VD” ON THE TOP OF THEIR HOUSE?
4 A. (WITNESS COMPLYING.)
5 Q. AND MR. WESTERFIELD’S RESIDENCE IS WHERE?
6 A. RIGHT HERE.
7 Q. WOULD YOU PUT A “DW” ON HIS?
8 A. (WITNESS COMPLYING.)
9 Q. ALL RIGHT. THANK YOU, MA’AM.
10 DO YOUR KIDS GO TO SCHOOL IN THAT NEIGHBORHOOD?
11 A. THEY DO.
12 Q. HOW FAR AWAY IS THE SCHOOL?
13 A. OH, LESS THAN A — ABOUT A QUARTER OF A MILE, I
14 THINK.
15 Q. AND DO YOU KNOW IF THE VAN DAMS HAVE ANY CHILDREN?
16 A. THEY DO.
17 Q. HOW MANY, WHAT AGES?
18 A. THEY CURRENTLY HAVE TWO — THEY HAVE THREE CHILDREN
19 BUT TWO, DILLON IS FIVE AND DERRICK IS TEN.
20 Q. AND THEY HAD DANIELLE?
21 A. YES, THEY DO.
22 Q. HOW OLD WAS SHE?
23 A. SEVEN.
24 Q. DID THEY GO TO SCHOOL IN THE NEIGHBORHOOD?
25 A. THEY DID.
26 Q. HOW DO YOUR KIDS GET TO SCHOOL?
27 A. I DRIVE THEM.
28 Q. DO YOU KNOW HOW THE VAN DAM’S CHILDREN GOT TO
3423
1 SCHOOL?
2 A. MOSTLY THEY’RE DRIVEN. SOMETIMES THEY WALKED.
3 Q. DID THEY WALK WITH ANYONE?
4 A. WITH BRENDA.
5 Q. THEIR MOTHER?
6 A. YES.
7 Q. I’D LIKE TO DIRECT YOUR ATTENTION BACK TO FEBRUARY
8 2ND, A SATURDAY MORNING. WERE YOU AT HOME THAT DAY, MA’AM?
9 A. YES, I WAS.
10 Q. DID YOU HAVE ANYTHING GOING ON THAT DAY?
11 A. YES. MY HUSBAND AND I HAD A T-BALL MEETING THAT WE
12 HAD TO GO TO THAT MORNING.
13 Q. WHERE WAS THE T-BALL MEETING?
14 A. IT WAS AT A BALL FIELD ON THE CORNER OF SABRE
15 SPRINGS PARKWAY AND POWAY ROAD.
16 Q. HOW FAR AWAY?
17 A. OH, ABOUT A MILE.
18 Q. DID YOU DRIVE?
19 A. YES, WE DID.
20 Q. WHAT WERE YOU GOING TO DO WITH YOUR CHILDREN?
21 A. WE ASKED BRENDA AND DAMON IF THEY WOULD WATCH THEM
22 WHILE WE WERE AT THE MEETING.
23 Q. WHAT TIME WERE YOU SUPPOSED TO TAKE YOUR KIDS OVER
24 THERE?
25 A. 9:30.
26 Q. DID YOU?
27 A. YES, WE DID.
28 Q. ALL RIGHT.
3424
1 YOU AND YOUR HUSBAND OR JUST YOURSELF?
2 A. JUST MYSELF.
3 Q. WHERE DID YOU GO WITH YOUR KIDS?
4 A. I WALKED THEM ACROSS THE STREET TO THEIR FRONT
5 DOOR.
6 Q. WHO DID YOU SEE?
7 A. BRENDA.
8 Q. WHAT HAPPENED THEN?
9 A. SHE ANSWERED THE DOOR. SHE WELCOMED THE KIDS IN.
10 SHE SAID THAT TO COME ON IN, THAT THE BOYS WERE UP. I THINK I
11 MAY HAVE SEEN DERRICK, AND THAT DANIELLE WAS SLEEPING BUT SHE
12 WOULD BE UP SHORTLY.
13 Q. HOW LONG DID YOU EXPECT TO BE GONE?
14 A. A COUPLE HOURS AT THE LATEST, AT THE MOST.
15 Q. WHERE DID YOU GO ONCE YOU LEFT THEIR HOME?
16 A. WE GOT IN THE CAR AND WE DROVE DOWN POWAY ROAD TO
17 THE BALL FIELD.
18 Q. WHAT WAS THE NEXT CONTACT YOU HAD REGARDING YOUR
19 CHILDREN AND THE VAN DAMS?
20 A. ABOUT BETWEEN 9:40 AND 9:45, BRENDA CALLED ME ON MY
21 CELL PHONE.
22 Q. DID YOU HAVE THAT WITH YOU?
23 A. I DID.
24 Q. WHERE WERE YOU WHEN YOU GOT THAT CALL?
25 A. WE WERE ON THE FIELD.
26 Q. THE T-BALL FIELD?
27 A. THE T-BALL FIELD, THE PARK, YES.
28 Q. CAN YOU DESCRIBE HER EMOTIONAL STATE OR EMOTIONAL
3425
1 CONDITION?
2 A. SHE SOUNDED URGENT. SHE SOUND UPSET. WOULD YOU
3 LIKE ME TO SAY WHAT SHE SAID BASICALLY?
4 Q. PLEASE.
5 A. SHE SAID YOU NEED TO COME BACK. SOMETHING TO THE
6 EFFECT OF WE HAVE A PROBLEM. WE CAN’T FIND DANIELLE. YOU NEED
7 TO COME HOME AND GET YOUR CHILDREN.
8 Q. DID YOU REACT TO THAT?
9 A. I SAID YOU’VE GOT TO BE KIDDING. YES. WE’LL BE
10 RIGHT HOME.
11 Q. HOW QUICKLY DID YOU GET HOME?
12 A. WITHIN THE TIME IT TOOK US TO WALK ACROSS THE
13 FIELD, GET IN THE CAR AND GO HOME. SO WITHIN 10 MINUTES WE WERE
14 BACK.
15 Q. WHEN YOU GOT HOME WHAT DID YOU SEE?
16 A. THE POLICE CAR, ONE OR TWO, AT LEAST ONE WAS
17 ARRIVING AT THE SAME TIME.
18 Q. THIS WOULD BE A MARKED UNIT.
19 A. YES.
20 Q. DID YOU SEE BRENDA OR DAMON VAN DAM WHEN YOU GOT
21 HOME?
22 A. I SAW BOTH.
23 Q. WHERE?
24 A. IN THEIR — DAMON WAS DRIVING IN THE VAN GOING —
25 HEADED TOWARDS SPRINGHURST.
26 Q. USING THE EXHIBIT 1 ABOVE, WHICH PHOTOGRAPH WOULD
27 SHOW WHERE HE WAS GOING?
28 A. PHOTOGRAPH “A” HE WAS MOVING DOWN THE STREET IN THE
3426
1 SAME DIRECTION AS THE CAR THAT’S ON THERE.
2 Q. DO YOU STILL HAVE ONE?
3 A. YES.
4 Q. WOULD YOU USE YOUR POINTER TO DESCRIBE WHERE YOU
5 SAW HIM GOING?
6 A. HE WAS JUST ABOUT WHERE THIS CAR IS HERE AND HE WAS
7 HEADED THIS WAY.
8 Q. SO BASICALLY YOU’D BE COMING FROM THE AREA OF HIS
9 HOUSE DOWN TOWARDS THE INTERSECTION BY THE PARK?
10 A. THAT’S CORRECT.
11 Q. WAS HE BY HIMSELF?
12 A. YES.
13 MR. FELDMAN: YOUR HONOR, I’M SORRY. FOR THE RECORD,
14 WHEN THE WITNESS SAID “THIS WAY,” I DON’T THINK IT’S ARTICULATED
15 THAT SHE MOVED HER HAND FROM TOP TO BOTTOM, IN THAT DIRECTION ON
16 THAT EXHIBIT.
17 THE COURT: ON EXHIBIT A — EXHIBIT 1, ALL RIGHT.
18 MR. FELDMAN: THANK YOU.
19
20 BY MR. DUSEK:
21 Q. DO YOU KNOW WHAT HE WAS DOING?
22 A. HE WAS LOOKING BOTH WAYS. WE COULD TELL HE WAS
23 LOOKING WORRIED.
24 Q. ALL RIGHT.
25 DID YOU SEE BRENDA?
26 A. YES.
27 Q. WHERE WAS SHE?
28 A. SHE — I BELIEVE THAT SHE WAS AT THE FRONT DOOR AND
3427
1 THAT SHE ANSWERED WHEN WE KNOCKED, OR THE POLICE WERE GETTING
2 THERE AT THE VERY SAME TIME, SO WE MET THEM RIGHT IN THE
3 ENTRYWAY.
4 Q. WHAT WAS HER CONDITION?
5 A. SHE SAID “WE STILL CAN’T FIND DANIELLE.” AND SHE
6 SEEMED VERY URGENT AND LIKE SHE WAS IN DISBELIEF AND IN PANIC.
7 Q. WHAT DID YOU DO?
8 A. I SAID “LET ME TAKE THE BOYS ACROSS THE STREET FOR
9 YOU,” MEANING HER BOYS. AND MY HUSBAND, HE DROPPED ME OFF AND
10 HE PULLED INTO THE DRIVEWAY. I HAD GONE IN, AND SO I TOOK THE
11 BOYS AND MET HIM IN THE STREET, AND HE TOOK THE BOYS TO THEIR —
12 TO OUR HOUSE.
13 Q. YOUR HUSBAND TOOK THE VAN DAM BOYS OVER BACK TO
14 YOUR HOUSE?
15 A. YES.
16 Q. WHAT DID YOU DO?
17 A. OH, AND OUR CHILDREN, TOO.
18 Q. OKAY.
19 A. I MET WITH MY HUSBAND IN THE DRIVEWAY, TALKED TO
20 HIM FOR A SECOND. WE WERE TRYING TO ASSESS THE SITUATION. I
21 WENT BACK OVER TO GET DILLON’S SHOES. HE NEEDED SOME SANDALS OR
22 SHOES.
23 Q. WENT BACK TO THE VAN DAM RESIDENCE?
24 A. YES.
25 Q. WHERE DID YOU GO TO GET THOSE SHOES?
26 A. THERE’S A HALL CLOSET RIGHT IN THE FRONT ENTRYWAY
27 RIGHT INSIDE THE DOOR, AND THAT’S WHERE WE WERE RUMMAGING FOR
28 SHOES.
3428
1 Q. WHO WAS DOING THAT?
2 A. I BELIEVE IT WAS BRENDA.
3 Q. SO YOU WERE WITH HER?
4 A. I WAS STANDING RIGHT INSIDE THE DOORWAY AS SHE WAS
5 RUMMAGING FOR SHOES.
6 Q. WERE THE POLICE OFFICERS AROUND STILL AT THAT TIME?
7 A. IN THE ENTRYWAY AND I BELIEVE ON THE WALKWAY AS
8 WELL.
9 Q. DID YOU SEE ANYBODY CLEANING THE HOUSE AT THAT
10 TIME?
11 A. ABSOLUTELY NOT.
12 Q. DID YOU SEE ANYBODY VACUUMING OR MOVING OR
13 DESTROYING ANY EVIDENCE AT THAT TIME?
14 A. NO.
15 Q. ONCE YOU GOT THE SHOES, WHAT DID YOU DO, MA’AM?
16 A. WENT BACK ACROSS THE STREET TO MY HUSBAND AND MY
17 CHILDREN AND HER CHILDREN AND SHORTLY THEREAFTER THEY WERE ASKED
18 TO LEAVE THE HOUSE.
19 Q. THEY BEING —
20 A. THE VAN DAMS WERE ASKED TO LEAVE THEIR HOUSE SO
21 THAT THE POLICE COULD GO IN AND COLLECT EVIDENCE, WHATEVER. AND
22 IT WAS MY UNDERSTANDING AT THAT POINT THAT THE HOUSE WAS CLOSED
23 OFF.
24 MR. BOYCE: OBJECTION, HEARSAY.
25 THE COURT: AS TO THE ASSUMPTION, SUSTAINED. THE JURY’S
26 TO DISREGARD.
27
28 ///
3429
1 BY MR. DUSEK:
2 Q. DID YOU SEE ANY INDICATIONS, ANY SIGNS OR MOVEMENT
3 OR ACTION TO INDICATE WHETHER OR NOT CIVILIANS WOULD BE ALLOWED
4 INTO THE VAN DAM HOME?
5 A. THEY WERE NOT ALLOWED. BRENDA AND DAMON WERE OUT
6 ON THE DRIVEWAY AT THAT POINT AND THEY WERE NOT ABLE TO GO BACK
7 IN.
8 Q. HOW QUICKLY WOULD YOU SAY THAT WAS AFTER YOU GOT
9 HOME FROM YOUR T-BALL MEETING?
10 A. IT HAPPENED WITHIN — IT HAPPENED UNDER A HALF AN
11 HOUR. IT COULD HAVE BEEN 15 MINUTES. IT WAS PRETTY QUICK.
12 Q. DID YOU DO ANYTHING TO AID OR ASSIST THEM?
13 A. I BROUGHT THEM WATER. ANOTHER NEIGHBOR BROUGHT
14 THEM BANANAS OR SOMETHING TO GIVE THEM SOME FOOD. WE BROUGHT
15 THEM LOUNGE CHAIRS TO SIT DOWN. THEY WERE JUST SITTING ON THEIR
16 DRIVEWAY.
17 Q. DID YOU GET A CHANCE TO SEE THEM OUTSIDE?
18 A. YES.
19 Q. WHAT WAS THEIR CONDITION?
20 A. DAMON WAS IN TEARS. HE WAS SITTING DOWN WITH HIS
21 HEAD IN HIS HANDS AND HE WAS JUST DEVASTATED. HE WAS CRYING.
22 HE SAID “SOMEBODY TOOK MY BABY.”
23 MR. FELDMAN: OBJECTION, HEARSAY.
24 THE COURT: AS TO WHAT WAS SAID, SUSTAINED.
25 NEXT QUESTION.
26 MR. DUSEK: SPONTANEOUS QUESTION, YOUR HONOR.
27 THE COURT: I’LL ALLOW IT FOR THAT PURPOSE.
28
3430
1 BY MR. DUSEK:
2 Q. HOW LONG DID YOU SEE HIM IN THAT CONDITION THEN?
3 A. ON AND OFF ALL DAY.
4 Q. HOW ABOUT BRENDA’S, WHAT WAS HER CONDITION?
5 A. SHE WAS MORE CONTROLLED. SHE WAS TRYING TO COMFORT
6 DAMON. SHE WAS TRYING TO TALK WITH THE POLICE. SHE WAS
7 OBVIOUSLY VERY DISTRAUGHT.
8 Q. DID YOU SEE OR HEAR THEM TALK ABOUT COMING UP WITH
9 A PLAN TO LIE TO THE POLICE ABOUT WHAT HAPPENED?
10 A. NO.
11 Q. WERE THEY SITTING OUTSIDE IN THEIR DRIVEWAY, HOW
12 LONG WOULD YOU SAY?
13 A. IT COULD HAVE BEEN AN HOUR. AT SOME POINT THE
14 POLICE ASKED THEM IF THEY COULD GO IN TO SHOW THE POLICE AROUND.
15 I BELIEVE THEY WERE ASKED TO COME BACK INTO THEIR HOUSE.
16 Q. DO YOU KNOW IF THE VAN DAMS WERE ALLOWED TO REMAIN
17 IN THEIR HOME THAT EVENING?
18 A. THEY WERE NOT.
19 Q. HOW DO YOU KNOW THAT?
20 MR. FELDMAN: OBJECTION, HEARSAY. CALLS FOR CONCLUSION.
21 THE COURT: IF IT’S WITHIN HER PERSONAL KNOWLEDGE, YOU
22 MAY ANSWER. IF YOU WANT TO LAY A FOUNDATION, PLEASE.
23
24 BY MR. DUSEK:
25 Q. DO YOU KNOW WHETHER OR NOT THEY WERE ALLOWED TO
26 REMAIN IN THEIR HOME THAT NIGHT?
27 A. THEY WERE NOT ALLOWED TO REMAIN IN THEIR HOME.
28 MR. FELDMAN: NONRESPONSIVE.
3431
1 THE COURT: OVERRULED. YOU MAY ANSWER, MA’AM.
2 THE WITNESS: I KNOW BECAUSE I OVERHEARD THE POLICE
3 TELLING THEM —
4 THE COURT: WHOOPS, SUSTAINED. IF IT’S NOT WITHIN HER
5 PERSONAL KNOWLEDGE.
6
7 BY MR. DUSEK:
8 Q. DO YOU KNOW WHERE THEY SPENT THAT NIGHT?
9 A. THEY SPENT THE NIGHT AT MY HOUSE.
10 Q. WHY?
11 A. WE KNEW THAT THEY DIDN’T HAVE A PLACE TO SLEEP THAT
12 NIGHT AND WE WANTED THEM TO BE AS CLOSE AS POSSIBLE. THEY
13 WANTED TO BE AS CLOSE AS POSSIBLE, AND WE OFFERED OUR HOME.
14 Q. THEY WERE NOT ALLOWED INTO THEIR HOME THAT EVENING?
15 A. THEY WERE NOT.
16 MR. FELDMAN: OBJECTION, HEARSAY. NO FOUNDATION.
17 THE COURT: OVERRULED. OVERRULED. THE ANSWER WILL
18 STAND.
19 NEXT QUESTION.
20
21 BY MR. DUSEK:
22 Q. WHO ALL DID YOU TAKE INTO YOUR HOME?
23 A. BRENDA, DAMON, DERRICK AND DILLON.
24 Q. HOW MANY NIGHTS DID THEY SPEND IN YOUR HOME, MA’AM?
25 A. JUST ONE NIGHT.
26 Q. THE NEXT DAY WHAT HAPPENED WITH REGARDS TO THE VAN
27 DAMS AND THEIR HOME?
28 A. THEY WERE ABLE TO GO BACK IN IN THE MORNING TO TAKE
3432
1 SHOWERS.
2 Q. DO YOU KNOW WHETHER OR NOT THE POLICE RELEASED
3 THEIR HOME TO THE VAN DAMS?
4 A. I DON’T KNOW EXACTLY WHEN THAT HAPPENED, BUT AT
5 SOME POINT I KNOW THAT IT DID, BUT I DON’T KNOW WHEN.
6 Q. HOW DO YOU KNOW IT HAPPENED?
7 A. THERE WAS A GROUP OF INDIVIDUALS WHO WERE ABLE TO
8 GO INTO THE HOUSE TO CLEAN UP THE FINGERPRINT DUST THAT HAD BEEN
9 LEFT.
10 Q. DID YOU HEAR ANY DISCUSSION BETWEEN THE POLICE
11 OFFICERS AND DAMON VAN DAM REGARDING THE ABILITY TO GO BACK INTO
12 THE HOME?
13 A. DAMON ASKED SPECIFICALLY ARE YOU SURE THAT YOU
14 COLLECTED EVERYTHING YOU NEED AND THAT WE CAN GO BACK IN?
15 MR. FELDMAN: HEARSAY OBJECTION.
16 THE COURT: OVERRULED. IT’S NOT FOR THE TRUTH. THE
17 ANSWER WILL STAND.
18
19 BY MR. DUSEK:
20 Q. WHERE WAS THIS CONVERSATION?
21 A. I DON’T RECALL.
22 Q. ALL RIGHT.
23 DESCRIBE THE TONE OF VOICE OF DAMON VAN DAM WHEN HE
24 WAS ASKING THE POLICE THIS QUESTION.
25 A. WELL, HE WAS VERY SERIOUS.
26 Q. WHAT HAPPENED AFTER THAT?
27 A. HE TOLD THE PEOPLE WHO WERE CLEANING THE HOUSE
28 “DON’T TOUCH DANIELLE’S ROOM. LEAVE IT CLOSED ANYWAYS. DON’T
3433
1 CLEAN IN THERE.”
2 Q. THE PEOPLE HE WAS TELLING WERE WHOM, GENERAL
3 CATEGORY?
4 A. POSSIBLY NEIGHBORS, POSSIBLY A CHURCH GROUP, I’M
5 NOT SURE.
6 Q. DO YOU KNOW WHETHER OR NOT ANY PART OF THEIR HOUSE
7 WAS SEALED UP AFTER THEY GOT BACK INTO IT?
8 A. DAMON AND BRENDA ASKED THAT DANIELLE’S ROOM REMAIN
9 SEALED SO THAT NOTHING —
10 MR. FELDMAN: HEARSAY.
11 THE COURT: SUSTAINED. JURY’S TO DISREGARD.
12 NEXT QUESTION.
13
14 BY MR. DUSEK:
15 Q. DID YOU SEE WHETHER OR NOT ANY PART OF THE HOUSE
16 WAS SEALED UP?
17 A. YES.
18 Q. WHAT DID YOU SEE?
19 A. THERE WAS A BABY GATE OR DOG — THEY USED IT FOR
20 THE DOG — ACROSS HER DOOR AND HER DOOR WAS SHUT.
21 Q. WHOSE DOOR?
22 A. DANIELLE’S.
23 Q. HAVE YOU SEEN — ABOUT HOW LONG WOULD YOU ESTIMATE
24 THE VAN DAMS HAVE LIVED IN THAT NEIGHBORHOOD, BALLPARK?
25 A. THREE OR FOUR YEARS.
26 Q. HAVE YOU SEEN THE VAN DAM CHILDREN OUTSIDE PLAYING?
27 A. YES.
28 Q. DID THEY APPEAR TO HAVE ANY RESTRICTIONS OR
3434
1 LIMITATIONS ON WHERE THEY WOULD GO OR WHERE THEY COULD GO?
2 A. YES.
3 Q. HOW SO?
4 A. THEY WERE ALLOWED TO PLAY ON THE SIDEWALKS, AND I
5 COULD SHOW YOU ON THE MAP, BUT —
6 Q. IF YOU’D USE YOUR POINTER?
7 A. “D.”
8 Q. WHICH PHOTO BEST DESCRIBES?
9 A. “D” BEST DESCRIBES.
10 Q. ALL RIGHT.
11 LET ME GO TO PHOTOGRAPH “D” AND HAVE YOU TAKE YOUR
12 BLACK FELT PEN AND GET US ORIENTED AGAIN. COULD YOU PUT A “VD”
13 ON THE VAN DAM ROOF?
14 A. (WITNESS COMPLYING.)
15 Q. ALL RIGHT. THANK YOU.
16 A. OKAY.
17 Q. NOW, USING THE POINTER, IF YOU COULD DESCRIBE WHERE
18 YOU SAW THEM PLAYING.
19 A. THEY WERE ABLE TO PLAY FROM THEIR HOUSE UP THE
20 STREET AND ACTUALLY THIS WAY.
21 Q. THAT WOULD BE TO THE BOTTOM OF PHOTOGRAPH “D”?
22 A. TO THE BOTTOM OF PHOTOGRAPH “D” WHICH WOULD BE THE
23 TOP OF PHOTOGRAPH “A”.
24 Q. ALL RIGHT.
25 A. AND TO THE CORNER, A LITTLE BIT UP THIS WAY ON THE
26 CORNER.
27 Q. WHAT STREET IS THAT?
28 A. THAT IS BRIAR DALE.
3435
1 Q. BRIAR LEAF?
2 A. BRIAR LEAF.
3 MR. FELDMAN: YOUR HONOR, EXCUSE ME AGAIN, I’M SORRY.
4 BUT FIRST, I CAN’T SEE WHAT THE WITNESS IS SAYING, AND WHEN SHE
5 IS USING THE WORD THIS, COULD THERE BE SOME WAY AT LEAST FOR THE
6 RECORD TO DESCRIBE?
7 THE COURT: I’M SURE COUNSEL WILL FILL IT IN, AND IF YOU
8 CAN’T SEE, JUST MOVE INTO A POSITION TO SEE.
9 MR. FELDMAN: THANK YOU, YOUR HONOR.
10
11 BY MR. DUSEK:
12 Q. WHEN YOU INDICATED UP TO THE CORNER AND THEN
13 TURNING LEFT, THAT WOULD BE UP THE CORNER TOWARDS MR.
14 WESTERFIELD’S HOUSE, AND TURNING LEFT ON THE SIDEWALK ON THE VAN
15 DAM SIDE OF THE STREET?
16 A. THAT’S CORRECT.
17 Q. HOW FAR DID YOU SEE ‘EM GO UP THERE?
18 A. OH, THERE’S ANOTHER SET OF HOUSES DIRECTLY BEHIND
19 HERE, AND THEN THERE’S A CORNER AGAIN, AND I’M SURE THEY WEREN’T
20 ABLE TO CROSS THAT CORNER, SO JUST THE SIDEWALK RIGHT HERE. TWO
21 HOUSE LENGTHS, TWO HOUSE LENGTHS ON THAT BLOCK.
22 Q. THAT’S INDICATING THE SIDEWALK ON THEIR SIDE OF THE
23 STREET ON MOUNTAIN PASS AND THEIR SIDE OF THE STREET ON BRIAR
24 LEAF?
25 A. THAT’S CORRECT.
26 Q. WERE YOU AWARE OF ANY RESTRICTIONS OR BEHAVIORS ON
27 THE PARTS OF THE CHILDREN IF THEY WERE TO COME ACROSS A STREET,
28 SAY, TO SEE YOUR CHILDREN?
3436
1 A. SOMETIMES BRENDA WOULD CALL ME AND LET ME KNOW THAT
2 THEY WERE COMING OVER. SOMETIMES SHE WOULD HAVE THE OLDER BOY,
3 DERRICK, WALK THEM OVER.
4 MR. DUSEK: THANK YOU, MA’AM.
5 THE COURT: ALL RIGHT. CROSS-EXAMINATION.
6
7 CROSS-EXAMINATION +
8 BY MR. FELDMAN:
9 Q. GOOD AFTERNOON, MA’AM.
10 COULD YOU TELL ME, YOU JUST RELATED TO MR. DUSEK
11 THAT THERE WAS A CERTAIN PERIOD OF TIME BETWEEN THE TIME THAT
12 YOU APPARENTLY — I DON’T KNOW WHETHER YOU DROPPED YOUR KIDS OFF
13 AND THEN DROVE OFF TO BASEBALL, IS THAT RIGHT?
14 A. THAT’S RIGHT.
15 Q. HOW MUCH TIME ELAPSED BETWEEN THE TIME YOU DROPPED
16 YOUR KIDS OFF AND THE TIME YOU GOT THE PHONE CALL FROM BRENDA?
17 A. BETWEEN TEN AND 15 MINUTES.
18 Q. ALL RIGHT.
19 SO YOU DON’T KNOW WHAT BRENDA AND DAMON TALKED
20 ABOUT IN THAT 10 OR 15 MINUTE PERIOD, DO YOU?
21 A. I DO NOT.
22 Q. DID BRENDA EVER TELL YOU WHAT SHE HAD DONE THE
23 NIGHT BEFORE?
24 MR. DUSEK: OBJECTION, HEARSAY.
25 THE COURT: THAT CAN BE ANSWERED “YES” OR “NO.”
26 MR. FELDMAN: YES.
27 THE WITNESS: NO.
28 ///
3437
1 BY MR. FELDMAN:
2 Q. DID BRENDA EVER TELL YOU WHO HAD BEEN IN THE HOUSE
3 THE NIGHT BEFORE?
4 A. NO.
5 Q. DID YOU ALWAYS WATCH WHILE THE VAN DAM CHILDREN
6 WERE PLAYING?
7 A. IF THEY WERE PLAYING WITH MY CHILDREN, YES.
8 Q. BUT THEY DIDN’T ALWAYS PLAY WITH YOUR KIDS, THOUGH,
9 DID THEY, MA’AM?
10 A. NO.
11 Q. ARE YOU A STAY-AT-HOME MOM?
12 A. YES, I AM.
13 Q. IS BRENDA VAN DAM A STAY-AT-HOME MOM?
14 A. YES, SHE IS.
15 Q. YOU TOLD US THAT, AND I THINK YOU HAD
16 ILLUSTRATED — EXCUSE ME, COUNSEL — YOU ILLUSTRATED THAT THE
17 VAN DAM CHILDREN WERE ABLE TO PLAY ON — I THINK YOU SAID TWO
18 HOUSES AND TALKED ABOUT BRIAR — BRIAR LEAF?
19 A. BRIAR LEAF.
20 Q. COULD YOU PLEASE REPOINT TO WHICH — YES, IF YOU
21 WOULD, PLEASE?
22 A. SURE. BRIAR LEAF IS THIS STREET HERE.
23 Q. OKAY. FOR THE RECORD, YOU HAVE POINTED TO EXHIBIT
24 1 PHOTO B; IS THAT CORRECT, MA’AM?
25 A. THAT’S CORRECT.
26 Q. AND WHEN YOU SAID THIS STREET HERE, YOU WERE
27 TALKING ABOUT THE STREET IMMEDIATELY ADJACENT TO THE HOUSE THAT
28 YOU WROTE DW ON; IS THAT RIGHT?
3438
1 A. THAT’S CORRECT.
2 Q. AND SO THE VAN DAM CHILDREN WERE THEN ALLOWED TO
3 PLAY UP THE STREET; IS THAT CORRECT? WE SEE AT LEAST THREE
4 TREES, DO YOU SEE THOSE?
5 A. UM-HMM.
6 Q. I’M SORRY. WHEN YOU SAY UH-HUH, WE HAVE A COURT
7 REPORTER.
8 A. YES.
9 Q. SORRY. WERE THEY ALLOWED TO PLAY AT LEAST THREE
10 TREES OR WERE THEY ALLOWED TO PLAY UP FURTHER?
11 A. I DON’T KNOW.
12 Q. AND YOU KNEW MR. WESTERFIELD HAD A MOTOR HOME,
13 RIGHT?
14 A. YES.
15 Q. YOU KNEW THAT HE WOULD PARK HIS MOTOR HOME FROM
16 TIME TO TIME RIGHT ACROSS THE STREET ON BRIAR LEAF?
17 A. THAT’S CORRECT.
18 MR. FELDMAN: NO FURTHER QUESTIONS.
19 THE COURT: ANYTHING FURTHER?
20
21 REDIRECT EXAMINATION +
22 BY MR. DUSEK:
23 Q. DID YOU EVER SEE THE VAN DAM KIDS OVER ON THAT SIDE
24 OF THE STREET?
25 A. ABSOLUTELY NOT. THEY WERE NOT ALLOWED TO CROSS THE
26 STREET.
27 MR. DUSEK: THANK YOU, MA’AM.
28 THE COURT: ANYTHING FURTHER?
3439
1 MR. FELDMAN: EXCUSE ME.
2 (PAUSE)
3 MR. FELDMAN: THANK YOU, NO.
4 THE COURT: ALL RIGHT. IS THIS WITNESS BEING SUBJECT TO
5 RECALL OR EXCUSED?
6 MR. FELDMAN: SUBJECT TO RECALL, PLEASE.
7 MR. DUSEK: EXCUSE ME, YOUR HONOR.
8 THE COURT: ALL RIGHT.
9 OKAY. LOOKS LIKE YOU’RE SUBJECT TO RECALL, MA’AM.
10 YOUR TIME WITH US IS DONE. PENDING RESOLUTION OF THIS MATTER,
11 PLEASE DO NOT DISCUSS YOUR TESTIMONY WITH ANY OTHER WITNESSES,
12 OKAY?
13 THE WITNESS: OKAY.
14 THE COURT: THEN THE LAWYERS WILL BE IN TOUCH WITH YOU IF
15 THEY NEED YOU TO COME BACK.
16 THE WITNESS: THANK YOU.
17 THE COURT: THANK YOU FOR COMING IN.
18 ALL RIGHT. MR. DUSEK.
19 MR. DUSEK: KARSTEN HEIMBURGER.
20
21 -KARSTEN HEIMBURGER, +
22 PLAINTIFF’S WITNESS, HAVING BEEN SWORN, TESTIFIED AS FOLLOWS:
23
24 THE COURT: PLEASE HAVE A SEAT, SIR.
25 THE CLERK: SIR, WOULD YOU PLEASE STATE YOUR NAME AND
26 SPELL IT FOR THE RECORD?
27 THE WITNESS: KARSTEN HEIMBURGER, K-A-R-S-T-E-N,
28 H-E-I-N-B-U-R-G-E-R.
3440
1 DIRECT EXAMINATION +
2 BY MR. DUSEK:
3 Q. ARE YOU EMPLOYED, SIR?
4 A. YES.
5 Q. WHAT TYPE OF WORK DO YOU DO?
6 A. I’M A MILKMAN.
7 Q. HOW LONG HAVE YOU BEEN DOING THAT WORK?
8 A. ABOUT 20 SOME YEARS.
9 Q. MR. HEIMBURGER, I’D LIKE TO DIRECT YOUR ATTENTION
10 BACK TO FEBRUARY 27TH, THE YEAR 2002.
11 DID YOU GET INVOLVED IN THE SEARCH FOR DANIELLE VAN
12 DAM?
13 A. YES.
14 Q. HOW MANY DAYS DID YOU GO OUT?
15 A. ONE DAY.
16 Q. AND THAT WAS ON THE 27TH?
17 A. CORRECT.
18 Q. WHY?
19 A. MY FRIEND CALLED ME. IT WAS MY DAY OFF. SOMETHING
20 TO DO.
21 Q. WHAT WAS YOUR FRIEND’S NAME?
22 A. CHRIS MORGAN.
23 Q. HAD YOU THOUGHT ABOUT DOING IT BEFORE?
24 A. NO.
25 Q. WHEN YOU DECIDED TO GO, WHERE DID YOU HAVE TO GO?
26 A. WE WERE INITIALLY INSTRUCTED TO DRIVE IN A CAR POOL
27 FASHION TO DIRECTLY ACROSS FROM THE SINGING HILLS GOLF COURSE.
28 Q. I’M SORRY. WHERE DID YOU GO TO GET YOUR
3441
1 INSTRUCTIONS ON WHAT TO DO?
2 A. I WAS TOLD BY MY FRIEND CHRIS THAT WE WOULD SHOW UP
3 OFF OF POWAY ROAD TO A REMAX SEARCH CENTER.
4 Q. REMAX IS LIKE A REAL ESTATE COMPANY?
5 A. THE REAL ESTATE AGENT OFFICE WHERE THEY HAD THE
6 WHOLE SEARCH PARTY STARTED.
7 Q. WHEN YOU SHOWED UP THERE, HOW MANY PEOPLE WERE
8 AROUND?
9 A. INITIALLY, WHEN I SHOWED UP THERE WERE A GOOD 15 TO
10 20 VOLUNTEERS, BUT I HAD TO GO HOME BECAUSE I DIDN’T BRING MY
11 I.D. WITH ME.
12 Q. WHY DID YOU NEED THAT?
13 A. I HAD TO FILL OUT A FORM AND SHOW MY DRIVER’S
14 LICENSE BEFORE I COULD BE A VOLUNTEER.
15 Q. DID YOU GO HOME WITH YOUR FRIEND?
16 A. YEAH. MY FRIEND CHRIS AND I BOTH WENT HOME, AND
17 ABOUT A HALF HOUR OR SO LATER ENDED UP SHOWING BACK UP AT THE
18 REMAX CENTER, AND AT THAT TIME THE GROUP WAS ONLY ABOUT 13
19 PEOPLE AT THAT TIME.
20 Q. WERE YOU GIVEN INSTRUCTIONS ON WHAT YOU WERE
21 SUPPOSED TO DO?
22 A. YEAH.
23 Q. WHAT INSTRUCTIONS WERE YOU GIVEN?
24 A. WE WERE TOLD TO LOOK FOR ITEMS THAT COULD POSSIBLY
25 BE SOMETHING FROM DANIELLE OR DANIELLE’S BELONGINGS. I THINK I
26 RECALLED HEARING THEM SAY SOMETHING ABOUT A BLUE BLANKET. THEY
27 INSTRUCTED US ON HOW TO SEARCH, WHAT TO DO WHEN WE FOUND AN ITEM
28 OR ITEMS OR ANYTHING THAT WE THOUGHT WAS SUSPICIOUS.
3442
1 Q. HOW WERE YOU TOLD TO SEARCH?
2 A. WITH OUR EYES.
3 Q. ANY SPECIAL PLACES YOU WERE SUPPOSED TO WALK OR —
4 A. WELL, WE WERE GIVEN — WE WERE GIVEN A CERTAIN AREA
5 OF A FIELD OR A MOUNTAIN — OR A HILLSIDE, AND WE JUST SPREAD
6 OUT, ALL THE VOLUNTEERS SPREAD OUT AND SEARCHED.
7 Q. AND IF YOU WERE TO FIND SOMETHING THAT YOU THOUGHT
8 MIGHT BE IMPORTANT, WHAT WERE YOU SUPPOSED TO DO?
9 A. IF MY TEAM LEADER WAS NEARBY, TO HOLLER AT THE TEAM
10 LEADER. THE TEAM LEADER WOULD THEN CALL THE OFFICE. OR IF THE
11 TEAM LEADER WASN’T AROUND, TO DIAL 911 AND TIE A ORANGE TIE ON
12 IT.
13 Q. DO YOU RECALL THE AREA YOUR GROUP WAS GIVEN TO
14 SEARCH?
15 A. YES.
16 Q. WHICH AREA WAS THAT?
17 A. TWO DIFFERENT AREAS. THE FIRST AREA WAS DIRECTLY
18 ACROSS FROM THE SINGING HILLS GOLF COURSE.
19 Q. AND HOW MANY PEOPLE WENT DOWN THERE IN YOUR GROUP?
20 A. THERE WERE 13 AT THAT TIME.
21 Q. THIRTEEN PEOPLE WENT DOWN TO SINGING HILLS?
22 A. CORRECT, IN APPROXIMATELY FOUR TO SIX CARS.
23 Q. DID YOU THEN BREAK UP INTO SMALLER TEAMS?
24 A. AT THAT TIME WE ALL WERE FOCUSING ON THE HILLSIDE
25 ACROSS FROM THE SINGING HILLS GOLF COURSE, AND ALL 13 OF US WERE
26 IN THAT AREA.
27 Q. ABOUT WHAT TIME WOULD YOU SAY YOU GOT DOWN THERE,
28 SIR?
3443
1 A. I CAN’T RECALL EXACTLY. I WOULD GUESS SOMETIME
2 AROUND MAYBE 12:30, 12:00, SOMEWHERE AROUND THERE.
3 Q. IN THE AFTERNOON?
4 A. YES.
5 Q. HOW LONG DID YOU SEARCH IN THAT AREA ABOUT?
6 A. ABOUT AN HOUR TO TWO HOURS.
7 Q. ANYTHING FOUND?
8 A. NO. WELL — NO, NO.
9 Q. NOTHING OF IMPORTANCE?
10 A. NO.
11 Q. FROM THERE WHERE DID YOU GO?
12 A. WE THEN — WE LOST HALF OF OUR GROUP.
13 Q. HOW?
14 A. I THINK THEY HAD TO PICK UP THEIR KIDS FROM SCHOOL.
15 MOST OF THEM WERE PARENTS THAT HAD TO LEAVE.
16 Q. IT WASN’T THAT YOU COULDN’T FIND THEM?
17 A. NO, NO, NO. WE ALL MET BACK IN FRONT — WE ALL MET
18 BACK IN FRONT OF THE SINGING HILLS GOLF COURSE, AND THERE WERE A
19 NUMBER OF THE PARENTS THAT HAD TO GO HOME, RESPONSIBILITIES.
20 AND AT THAT TIME, SHAWNA, WHO WAS OUR TEAM LEADER, WE ALL GOT
21 TOGETHER AND DECIDED OKAY, WELL, OF THE PEOPLE THAT WE HAD LEFT
22 OVER, CAN WE STILL KEEP SEARCHING, COULD WE STILL KEEP GOING,
23 AND WE DECIDED YES. THEN WE WENT TO ANOTHER AREA.
24 Q. WHERE DID YOU GO?
25 A. I WOULD SAY SOMEWHERE CLOSE TO ABOUT A MILE MAYBE
26 OR SO FURTHER DOWN THE ROAD, MAYBE HALF MILE.
27 Q. DO YOU REMEMBER THE NAME OF THE ROAD?
28 A. DEHESA.
3444
1 MR. DUSEK: YOUR HONOR, I’VE HAD MARKED AS COURT’S
2 EXHIBIT 2 A PHOTO DISPLAY BOARD, APPEARS TO HAVE TWO AERIAL
3 PHOTOGRAPHS. THE BOARD IS LABELED “RECOVERY SITE ROMAN NUMERAL
4 ONE.”
5 THE COURT: ALL RIGHT.
6 (MARKED FOR ID: = TRIAL EX.2- 2 AERIAL PHOTOS)
7
8 BY MR. DUSEK:
9 Q. AND WE HAVE TWO PHOTOGRAPHS, “A” AT THE TOP, “B” AT
10 THE BOTTOM.
11 DO YOU RECOGNIZE WHAT WE HAVE DEPICTED THERE IN THE
12 PHOTOGRAPH “A” ON THIS EXHIBIT, SIR?
13 A. UH-HUH, YES.
14 Q. WHAT DOES THAT SHOW US?
15 A. THE SITE WHERE THE BODY — DANIELLE’S BODY WAS
16 FOUND.
17 Q. DO YOU SEE THE SINGING HILLS GOLF COURSE THAT YOU
18 WERE TALKING ABOUT?
19 A. YES, I DO.
20 Q. COULD YOU TAKE THE POINTER AND POINT THAT OUT IN
21 PHOTOGRAPH “A”?
22 A. (WITNESS COMPLYING.)
23 Q. ALL RIGHT.
24 YOU’VE INDICATED THE TOP OF THE PHOTOGRAPH WHERE
25 THERE APPEARS TO BE A GRASSY AREA?
26 A. CORRECT.
27 Q. THE ROAD THAT IS GOING DOWN THE MIDDLE OF THAT
28 PHOTOGRAPH, IS THAT DEHESA ROAD?
3445
1 A. YES.
2 Q. WHERE YOU WERE INITIALLY SEARCHING WITH THE BIGGER
3 GROUP, WHERE WAS THAT IN THAT PHOTOGRAPH?
4 A. IT WOULD BE ON THE OTHER SIDE OF THIS HILL, AND IT
5 WAS A HILL FACING THAT DIRECTION, SO IT WASN’T QUITE THE SAME
6 ANGLE. BUT IT WAS DIRECTLY OVERLOOKING THE GOLF COURSE AND THE
7 ENTRANCE TO THE GOLF COURSE.
8 Q. WHERE YOU INDICATED APPEARS TO BE THE MOUNTAIN OR
9 THE HILL ON THE UPPER RIGHT HAND CORNER OF THE PHOTOGRAPH, YOU
10 WERE ON THE OTHER SIDE SEARCHING NEAR THE GOLF COURSE?
11 A. CORRECT.
12 Q. AND THEN WHEN YOU CHANGED LOCATIONS, WHERE DID YOU
13 GO TO BEGIN THE SECOND PART OF THE SEARCH?
14 A. SOMEWHERE JUST AROUND PROBABLY RIGHT BY WHERE THAT
15 TREE IS IS WHERE WE ENDED UP PARKING OUR CARS.
16 Q. WHY DON’T YOU TAKE THIS BLACK FELT PEN AND PUT A
17 “C” FOR CARS AT THAT APPROXIMATE LOCATION?
18 A. (WITNESS COMPLYING.)
19 Q. CAN YOU REACH IT?
20 A. THIS IS PERMANENT.
21 Q. YEAH. MAKE IT THE RIGHT SPOT. THANK YOU, SIR.
22 HOW MANY PEOPLE WERE INVOLVED AT THAT POINT?
23 A. FIVE.
24 Q. DO YOU REMEMBER THEIR NAMES?
25 A. THERE WAS JOE, I DON’T KNOW HIS LAST NAME. IT WAS
26 PAUL KERR FROM LONDON, ENGLAND, SHAWNA MILLER, AND MY GOOD
27 BUDDY, CHRIS MORGAN, AND MYSELF.
28 Q. WAS CHRIS MORGAN THE ONLY PERSON YOU KNEW BEFORE
3446
1 THAT DAY?
2 A. CORRECT, YES.
3 Q. WHERE DID YOU GUYS GO?
4 A. FROM THE POINT THAT WE PARKED OUR CARS, THE THREE,
5 SHAWNA MILLER, JOE AND PAUL COVERED THE AREA THAT WE HAD DRIVEN
6 FROM POINT “A” TO POINT “C.”
7 Q. SO BASICALLY THEY BACKTRACKED?
8 A. THEY BACKTRACKED WHAT WE HAD JUST DRIVEN AND THEN
9 CROSSED OVER AND CAME BACK. AND THEN WE WENT DOWN THIS SIDE,
10 CROSSED OVER AND THEN CAME BACK.
11 Q. WHEN YOU INDICATE THAT, THAT MEANS YOU CAME DOWN
12 FROM THE “C” ON THE WATER SIDE OF THE ROAD AND CROSSED THE ROAD
13 AND WENT BACK TOWARDS THE “C” ON THE HILL SIDE OF THE ROAD?
14 A. CORRECT.
15 Q. AS YOU WERE COMING DOWN THE WATER SIDE OF THE ROAD,
16 HOW LONG DID IT TAKE YOU UNTIL YOU GOT TO THE TURN-AROUND SPOT,
17 ABOUT?
18 A. FORTY MINUTES.
19 Q. DESCRIBE THE SEARCHING, WHAT YOU GUYS WERE DOING.
20 A. INITIALLY, WE WERE JUST LOOKING BY THE SIDE OF THE
21 ROAD, AND ON THIS — THIS PATHWAY THERE’S A FENCE LINE THAT’S I
22 THINK ABOUT RIGHT HERE. SO THERE REALLY ISN’T MUCH AREA TO
23 SEARCH ON THIS SIDE.
24 Q. AND WHERE YOU’RE REFERRING TO NOW IS PHOTOGRAPH “A”
25 OF EXHIBIT 2 THERE APPEARS TO BE ON THE BOTTOM PORTION OF THAT
26 PHOTOGRAPH A FENCE LINE NEAR THE ROAD?
27 A. CORRECT.
28 Q. AND YOU ONLY STAYED BETWEEN THE ROAD AND THE FENCE
3447
1 LINE?
2 A. WELL, I VENTURED OVER JUST A LITTLE BIT HERE AND
3 THERE WHERE I FOUND SOME OPEN HOLES, BUT FOR THE MOST PART I WAS
4 ON THE SIDE OF THE ROAD OR CLOSE TO THE SIDE OF THE ROAD.
5 Q. DID YOU SEE ANYTHING NOTEWORTHY AS YOU WERE GOING
6 DOWN?
7 A. YES.
8 Q. WHAT?
9 A. I DIDN’T CONSIDER IT NOTEWORTHY UNTIL IT DAWNED ON
10 US THAT THERE’S A POSSIBILITY WE SHOULD BE USING OUR NOSES TO
11 SEARCH AS WELL.
12 Q. WHAT MADE YOU REALIZE THAT?
13 A. CHRIS AND I CAME UPON A DEAD ANIMAL, AND THERE WAS
14 A LOT OF HAIR, SO IT WAS PRETTY OBVIOUS THAT IT WAS A CAT OR A
15 DOG OR A COYOTE OR — BUT IT DIDN’T SMELL VERY WELL.
16 Q. AND THAT TOLD YOU WHAT?
17 A. POSSIBLY WE COULD USE OUR NOSES AS WELL AS OUR
18 EYES, SO —
19 Q. FROM THAT ANIMAL WHERE ALL DID YOU GO?
20 A. LET’S SEE. I WOULD HAVE TO GUESS THAT THE ANIMAL
21 WAS SOMEWHERE AROUND THIS AREA. I WOULDN’T BE ABLE TO BE
22 POSITIVE. BUT WE CONTINUED PROBABLY — WHEN YOU’RE LOOKING AT
23 THE MAP, “A” OR PICTURE “A” DOWN TO ABOUT THIS AREA AND THEN
24 CROSS OVER AND THEN CAME BACK UP.
25 Q. FIRST OF ALL, WHERE YOU SAID YOU THOUGHT THE ANIMAL
26 WAS, THAT WOULD BE ABOUT WHERE IT LOOKS LIKE THERE’S AN ENTRYWAY
27 FROM THE ROAD?
28 A. I THINK IT WAS AFTER THAT ENTRYWAY.
3448
1 Q. ALL RIGHT.
2 THE ENTRYWAY THAT APPEARS ON THE PHOTOGRAPH GOING
3 INTO A SANDY AREA?
4 A. CORRECT.
5 Q. AND YOU THINK THE ANIMAL WAS BELOW THAT?
6 A. CORRECT.
7 Q. AND WHEN YOU INDICATED THAT YOU TURNED AROUND, YOU
8 GOT WHAT WOULD BE OFF PHOTOGRAPH “A” AT THE BOTTOM AND THEN
9 TURNED AROUND AND WENT BACK ON THE HILL SIDE OF THE STREET?
10 A. CORRECT.
11 Q. WHO ALL WAS WITH YOU AT THAT POINT?
12 A. JUST MYSELF AND CHRIS.
13 Q. HOW CLOSE WERE YOU TO BEING DONE THAT DAY?
14 A. AT THE TIME WE CROSSED THE STREET OR —
15 Q. YES.
16 A. PROBABLY 20 MINUTES OR SO.
17 Q. WHAT HAPPENS AS YOU STARTED GOING BACK UP THE HILL
18 SIDE OF THE STREET?
19 A. WHEN WE REACHED SOMEWHERE AROUND THIS AREA WAS WHEN
20 WE BEGAN TO START SMELLING SOME STRANGE THINGS AGAIN. AND IN
21 THIS AREA WE WERE LIFTING ITEMS AND FOUND OTHER DEAD THINGS,
22 LIKE A DEAD — OR A SNAKE SKIN, THINGS THAT STARTED GIVING US A
23 FRESH IDEA OF OH, OKAY, KEEP THAT IN OUR HEAD.
24 Q. AND WHEN YOU INDICATED THE SMELLS AND THE POTENTIAL
25 SNAKE SKIN, THAT WOULD BE THESE TWO FAIRLY LARGE TREES ON THE
26 HILL SIDE OF THE ROAD AT THE BOTTOM OF PHOTOGRAPH “A”?
27 A. CORRECT.
28 Q. AND THE OTHER AREA WHERE YOU SAID YOU DID WHAT?
3449
1 A. THIS IS WHERE WE STARTED SMELLING DEAD ANIMAL.
2 Q. AND THE AREA THAT YOU’RE TALKING ABOUT NOW APPEARS
3 TO BE ABOVE THAT FURTHER UP THE ROAD WHERE THERE ARE TWO TREES,
4 LOOKS LIKE TWO VEHICLES PARKED NEXT TO THOSE TREES?
5 A. YES.
6 Q. WOULD THAT AREA BE THE SAME AREA THAT’S DEPICTED IN
7 PHOTOGRAPH “B” ON THAT EXHIBIT?
8 A. YES.
9 Q. AS YOU APPROACHED THAT AREA, HOW DID YOU GUYS BREAK
10 UP?
11 A. WE WERE ABOUT — WE WERE ABOUT TEN YARDS APART. I
12 WAS, I’D SAY, TEN YARDS FROM THE ROAD, AND WE WERE JUST
13 TRAVELING FOR THE MOST PART FROM EITHER BUSH TO BUSH OR FROM
14 SHADY AREA TO SHADY AREA, ANYWHERE THAT WE THOUGHT MAYBE
15 SOMETHING COULD HAVE BEEN HIDING.
16 Q. WHAT HAPPENED?
17 A. AND WELL, IN THIS PICTURE I WAS —
18 Q. THAT’S PHOTOGRAPH “B” ON EXHIBIT 2?
19 A. IN PHOTOGRAPH “B” I WAS CONTINUING TOWARDS THE
20 FIRST BUSHY TREE AND THEN FOLLOWED AROUND IT AND THIS IS WHERE
21 WE STARTED LOOKING UNDERNEATH ITEMS THAT WERE THERE AND —
22 Q. CAN YOU TAKE YOUR FELT PEN AND CIRCLE THAT AREA
23 WHERE YOU SAID YOU WERE LOOKING UNDERNEATH ITEMS ON PHOTOGRAPH
24 “B”, JUST THE GENERAL AREA?
25 A. (WITNESS COMPLYING.)
26 Q. ALL RIGHT. THANK YOU, SIR.
27 A. AND FROM THAT POINT IN PICTURE “B” I CONTINUED IN A
28 FASHION WHICH WOULD BE GOING DIRECTLY TOWARDS THE TRUNK OF THIS
3450
1 TREE.
2 Q. CAN YOU DRAW A LINE FOR US WITH THAT BLACK FELT
3 PEN?
4 A. (WITNESS COMPLYING.)
5 Q. PUT YOUR INITIALS BY THAT SO WE KNOW THAT’S WHERE
6 YOU SAY YOU WENT.
7 AND YOUR FRIEND CHRIS, WHERE WAS HE GOING?
8 A. AND CHRIS WAS TRAVELING IN THIS DIRECTION.
9 Q. HE’D BE OFF TO THE RIGHT-HAND SIDE OF YOU?
10 A. CORRECT.
11 Q. WHAT HAPPENED?
12 A. AND WHEN I GOT TO ABOUT THE END OF THE ARROW THAT
13 I’VE MADE WAS WHEN CHRIS HOLLERED TOWARDS ME THAT HE THINKS HE
14 MAY HAVE FOUND THE BODY — OR HE THINKS THAT WE MAY HAVE FOUND
15 THE BODY.
16 Q. HAD YOU SMELLED ANYTHING UP TILL THEN?
17 A. YEAH, YEAH. WE BOTH STARTED SMELLING SOMETHING I
18 THINK SOMEWHERE AROUND THIS AREA.
19 Q. THE CIRCLED AREA?
20 A. WHERE THE AREA IS CIRCLED.
21 Q. ONCE HE ALERTED YOU WHAT DID YOU DO, SIR?
22 A. I THINK I WAS PRETTY STUNNED FOR A GOOD 15, 20, 30
23 SECONDS OR SO, BUT THEN CALLED 911.
24 Q. WHAT DID YOU SEE?
25 A. DANIELLE’S BODY.
26 Q. SPECIFICALLY, CAN YOU DESCRIBE FOR US WHAT YOU SAW?
27 A. BODY LAYING DOWN ON HER BACK, HER HEAD FACING TO
28 HER RIGHT. THERE WERE PORTIONS OF HER BODY THAT WERE MISSING,
3451
1 MAYBE DECOMPOSED. INITIALLY, I THOUGHT THEY WERE BURNED.
2 Q. WHY?
3 A. BUT THAT’S BECAUSE I HAD NEVER SEEN A DECOMPOSING
4 BODY BEFORE.
5 THE COURT: COUNSEL, WE ARE GOING TO NEED TO TAKE THE
6 AFTERNOON BREAK.
7 LADIES AND GENTLEMEN, WE’RE GOING TO TAKE OUR
8 AFTERNOON BREAK. PLEASE REMEMBER THE ADMONITION OF THE COURT
9 NOT TO DISCUSS ANY OF THE EVIDENCE OR TESTIMONY AMONG YOURSELVES
10 OR WITH OTHER PERSONS NOR FORMULATE ANY IMPRESSIONS OR OPINIONS
11 UNTIL THE MATTER IS SUBMITTED TO YOU FOR DECISION.
12 IF YOU’RE NOT ORIENTED, WE HAVE RESTROOMS TO THE
13 LEFT, RESTROOMS TO THE RIGHT. AND WE’LL HAVE SOMEBODY COME GET
14 YOU AT 3:15, AT QUARTER AFTER 3:00.
15
16
17 (AT 3:00 P.M. THE JURY WAS EXCUSED
AND THE FOLLOWING PROCEEDINGS WERE HAD:)
18
19
20
21
22
23
24
25
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27
28
