03 – Day 1- June 4th 2002 – Transcript criminal trial David Westerfield

TRIAL DAY 1 – SAN DIEGO, CALIFORNIA – TUESDAY, JUNE 4, 2002, (afternoon 2)


WITNESSES:
Chris Morgan (one of the 2 volunteers who found Danielle’s body),
Erin Miller (Sycuan Casino),
Larry Alston (deputy sheriff)


(THE FOLLOWING OCCURRED OUT OF THE PRESENCE OF THE

JURY:

(PROCEEDINGS NOT PART OF THE PUBLIC RECORD.)

(END OF PROCEEDINGS OUT OF THE PRESENCE OF THE JURY.)


THE COURT: OKAY. WELCOME BACK, LADIES AND GENTLEMEN.

BEFORE WE CONTINUE QUESTIONING THIS WITNESS, I HAVE RECEIVED A NOTE FROM ONE OF YOU WHO FILLED OUT THE NOTE PROPERLY, SIMPLY WROTE ME THE NOTE AND SIGNED THE SEAT NUMBER, NOT THE NAME, WHICH IS THE WAY WE WANT YOU TO DO IT. AND IT BASICALLY ASKS ABOUT SOME TERMINOLOGY.

NOW, THIS IS PROBABLY A QUESTION MANY OF YOU MIGHT ASK, AND SO I’VE NEVER PERSONALLY TAUGHT ANY LAW SCHOOL CLASS, BUT I’M GOING TO GIVE YOU A JUDGE’S VERSION OF LEGALESE 101. WHENEVER — WE ARE RULED, THE LAWYERS AND I ARE RULED BY WHAT WE CALL OBJECTIONS. BASICALLY THE GROUNDRULES FOR HOW A TRIAL IS CONDUCTED. AND THEY ARE RULES OF EVIDENCE. AND FROM TIME TO TIME A QUESTION MIGHT BE ASKED AND THE ONE LAWYER WILL THINK THAT THE ANSWER TO THAT QUESTION MIGHT BE OBJECTIONABLE FOR SOME REASON. SO THAT LAWYER IS GOING TO SAY OBJECTION AND WILL GIVE ME A REASON WHY I SHOULD EITHER SUSTAIN OR OVERRULE THE OBJECTION.


NOW, THE REASON I’M BASICALLY HERE IS SORT OF THE REFEREE OF THIS MATCH THAT’S GOING ON. SO MY JOB IS TO MAKE THE CALL. IF I OVERRULE THE OBJECTION, WHAT THAT MEANS IS YOU’RE GOING TO HEAR THE QUESTION AND YOU WILL HEAR THE ANSWER. REMEMBER THAT A QUESTION ISN’T EVIDENCE. EVIDENCE IS THE ANSWER TO THE QUESTION. SO WHEN I OVERRULE THE OBJECTION, THAT MEANS THE LAWYER MADE THE OBJECTION, I OVERRULED IT, YOU WILL HEAR THE QUESTION AND THE ANSWER.

IF I SUSTAIN THE OBJECTION, WHAT THAT MEANS IS YOU’RE GOING TO HEAR THE QUESTION, BUT YOU WON’T HEAR THE ANSWER. AGAIN, LIKE WAS COVERED IN VOIR DIRE, REMEMBER, A QUESTION OR IMPLICATIONS OR INFERENCES IN A QUESTION IS NOT EVIDENCE. IT’S ONLY THE ANSWER THAT IS REALLY THE EVIDENCE.

SO OVERRULED MEANS THAT YOU GET TO HEAR THE QUESTION AND THE ANSWER. SUSTAINED MEANS YOU’LL HEAR THE QUESTION BUT NO ANSWER.

DON’T DWELL ON IT, WORRY ABOUT IT, OR HOLD IT AGAINST ONE OR THE OTHER LAWYERS. THEY’RE DOING THEIR JOBS. IN OTHER WORDS, THAT’S JUST PART OF THE PROCESS BY WHICH WE CONTROL THE TRIAL.


ALSO, OCCASIONALLY BEFORE I GET TO RESPOND AN ANSWER HAS ALREADY BEEN GIVEN. AND I’LL SAY SOMETHING LIKE THE JURY IS TO DISREGARD THE LAST PORTION OF THE ANSWER. THAT’S A VERY DIFFICULT CONCEPT BECAUSE WHAT I’M TELLING YOU TO DO BASICALLY IS DISREGARD WHAT THE PERSON JUST SAID. NOW, ABOUT THE BEST WAY TO DO THAT IS TREAT IT AS THOUGH YOU HAD NEVER HEARD OF IT. I DON’T THINK THAT WILL BE A PROBLEM, BUT THOSE ARE SORT OF THE GROUNDRULES THAT YOU ARE GOING TO SEE PLAYED OUT IN THIS COURTROOM IN THE NEXT COUPLE WEEKS.

MR. DUSEK, YOU MAY CONTINUE.


MR. DUSEK: THANK YOU.

KARSTEN HEIMBURGER, RESUMED

DIRECT EXAMINATION, CONTINUED

BY MR. DUSEK:

Q: MR. HEIMBURGER, I WOULD LIKE TO SWITCH BOARDS ON YOU. I’VE HAD MARKED AS COURT’S EXHIBIT 3 ANOTHER PHOTO DISPLAY BOARD LABELED AT THE TOP RECOVERY SITE ROMAN NUMERAL TWO. AND IT AGAIN APPEARS TO HAVE TWO AERIAL PHOTOGRAPHS, PHOTOGRAPH A AT THE TOP, PHOTOGRAPH B AT THE BOTTOM. DO YOU BASICALLY SEE WHAT WE HAVE DEPICTED HERE, SIR?


A: UH-HUH.

Q: IS THAT A YES?

A: YES.

(PHOTOBOARD CONTAINING TWO PHOTOGRAPHS MARKED TRIAL

EXHIBIT NUMBER 3 FOR IDENTIFICATION.)

BY MR. DUSEK:

Q: LET’S USE PHOTOGRAPH A AT THE TOP. DO YOU RECOGNIZE WHAT’S DEPICTED THERE?

A: YES.

Q: WHAT IS THAT?

A: THAT’S THE SITE WHERE WE FOUND DANIELLE.

Q: WHERE WAS SHE?

A: BY POINTING?

Q: PLEASE.

A: (THE WITNESS POINTED.)

Q: YOU’VE INDICATED THE TREE THAT APPEARS TO BE ON THE RIGHT OF THAT PHOTOGRAPH. THERE APPEARS TO BE TWO TREES IN THAT PHOTOGRAPH.


A: CORRECT.

Q: ALL RIGHT.

DID YOU SEE ANY CLOTHING ON HER?

A: NO.

Q: OR AROUND HER?

A: NO.

Q: HOW CLOSE DID YOU GET?

A: NO MORE THAN FIVE FEET.

Q: DID YOU TOUCH HER?

A: NO.

Q: HOW ABOUT THE OTHER PEOPLE THAT WERE IN YOUR GROUP.

A: NO.

Q: DID ANYBODY MOVE OR DESTROY OR ALTER THE SCENE THAT YOU SAW?

A: NO. NO.

Q: I’VE HAD MARKED AS COURT’S EXHIBIT 4 ANOTHER PHOTO DISPLAY BOARD. THIS ONE’S LABELED AT THE TOP “DEHESA ROAD RECOVERY SITE.” DO YOU RECOGNIZE WHAT WE HAVE DEPICTED THERE, SIR?

A: YES.

(PHOTOBOARD CONTAINING SIX PHOTOGRAPHS MARKED TRIAL

EXHIBIT NUMBER 4 FOR IDENTIFICATION.)


BY MR. DUSEK:

Q: PHOTOGRAPHS A, B, AND C. WHAT DO THEY SHOW US?

A: I DON’T KNOW WHAT A IS. MAY I GET UP AND LOOK

Q: SURE.

A: OH. SORRY. THAT’S A BRIEFCASE.

Q: DO THEY APPEAR TO BE THE TREE AREA WHERE THE BODY WAS FOUND?

A: YES.

Q: BASICALLY WORKING YOUR WAY ACROSS FROM LEFT TO RIGHT, DOES A, B, AND C LOOKING AT IT FROM THE ROADWAY?

A: CORRECT, YES.

Q: PHOTOGRAPH D. WHAT DOES THAT SHOW US?

A: I WOULD GUESS THE BODY FROM ABOUT TWENTY FEET.

Q: DO YOU SEE THE BODY IN THAT PHOTOGRAPH?

A: YES.

Q: COULD YOU POINT IT OUT, PLEASE.

A: (THE WITNESS COMPLIED.)

Q: A DARK AREA DOWN UNDERNEATH THE TREE?

A: YES.

Q: COULD YOU TAKE YOUR BLACK FELT PEN AND CIRCLE IT.

A: (THE WITNESS COMPLIED.)

Q: PHOTOGRAPH E AND F. DO THEY SHOW THE BODY AS YOU SAW IT?

A: YES. I DON’T KNOW ABOUT F, BUT E, YES.

Q: WHY DO YOU NOT KNOW ABOUT F?

A: I DIDN’T GET THAT CLOSE.

Q: HOW CLOSE DID YOU GET WOULD YOU SAY?

A: FIVE FEET. SO MAYBE ABOUT THE DISTANCE OF E.

Q: FROM WHERE THE CAMERAMAN WOULD BE?

A: RIGHT. NO ACTUALLY. NO, THAT’S MORE ON TOP. I WAS MUCH FURTHER BACK. I WAS AT LEAST FIVE TO SIX FEET BACK, AND THAT LOOKS TO ME LIKE A PICTURE THAT WAS TAKEN AT THREE OR FOUR FEET MAYBE.

Q: SO THE PHOTOGRAPH IN 4-E APPEARS TO BE CLOSER THAN WHERE YOU WERE, IS THAT RIGHT?

A: CORRECT.


Q: DID YOU NOTICE ANY JEWELRY ON HER?

A: I NOTICED THE SHIMMERING OF HER EARRING.

Q: DID YOU NOTICE ANYTHING ELSE?

A: GLIMMER OF HER EARRING.

Q: I’M SORRY?


A: NO. I DID NOT.

Q: HOW LONG WOULD YOU SAY YOU STOOD THERE AND LOOKED AT HER?

A: JUST UNDER — JUST UNDER A MINUTE BEFORE I CALLED NINE-ONE-ONE I’D SAY.

Q: YOU WERE THE ONE THAT CALLED?

A: YES.

Q: FROM WHERE?

A: AT THE TIME I WAS CALLING I WAS RUNNING DOWN TO THE ROAD TO FIND SOME SORT OF MARKER, SO MY NINE-ONE-ONE CALL INITIALLY STARTED WHEN I WAS STANDING ABOUT RIGHT HERE.

Q: WHICH IS IN PHOTOGRAPH B, THERE APPEARS TO BE A DIRTWAY GOING FROM THE ROAD UP TO UNDERNEATH THE TREE.

A: NO. THERE’S NO DIRTWAY THERE.

Q: ALL RIGHT.

A: BUT IT LOOKS AS THOUGH THERE IS NOW.

Q: ALL RIGHT.

WERE YOU ABLE TO MAKE CONNECTIONS ON YOUR NINE-ONE-ONE CALL?

A: YEAH. I LEARNED DUE TO CELL. PHONES ACTUALLY CONNECT TO LOS ANGELES NINE-ONE-ONE. SO IT TOOK A LITTLE BIT LONGER THAN I WAS EXPECTING AS, YOU KNOW, AN IMMEDIATE, OH, I KNOW WHAT YOU’RE TALKING ABOUT, I’LL BE RIGHT THERE. BUT THE L. A. NINE-ONE-ONE OFFICE HAD TO RE-ROUTE ME TO THE SAN DIEGO NINE-ONE-ONE.

Q: YOU EVENTUALLY MADE YOUR REPORT?

A: CORRECT, YES.

Q: WHAT WAS THE NEXT THING THAT HAPPENED?

A: WENT TO THE SIDE OF THE ROAD, WAITED FOR THE POLICE OFFICER TO SHOW UP.

Q: HOW ABOUT THE OTHER PEOPLE OF YOUR GROUP BESIDES CHRIS, WERE THEY THERE AT THAT TIME?

A: AFTER THE NINE-ONE-ONE CALL, I CALLED SHAWNA.

Q: SHE WAS THE LEADER?

A: OUR TEAM LEADER. AND INFORMED HER OF WHAT WAS GOING ON. AND SHE FROM THE PREVIOUS PICTURES WHERE I HAD CIRCLED WHERE WE HAD PARKED, SHE WAS BY OUR CARS AT THAT TIME. SO SHE TRAVELED THE HALF-MILE OR SO, AS WELL AS THE OTHER TWO VOLUNTEERS. AND THEY SHOWED UP.

Q: ONCE THEY SHOWED UP, DID YOU GO ANYWHERE?

A: NO.


Q: DID YOU SHOW THEM ANYTHING?

A: WE DIRECTED WHERE THE BODY WAS, YEAH. I THINK I NEEDED SHAWNA TO SAY IT WAS HER FOR ME TO REALLY FEEL LIKE WE HAD FOUND IT.

Q: SO YOU WENT BACK UP TO THE BODY WITH SHAWNA?

A: YES.

Q: WHO ALL WENT UP?

A: MYSELF, CHRIS, JOE, PAUL, FIVE PEOPLE.

Q: ALL OF YOU WENT UP?

A: YEAH. ALL OF US.

Q: AT THAT TIME DID ANYBODY MOVE, DISTURB, ALTER THE BODY OR THE SCENE AROUND THE BODY?

A: NO.

Q: AFTER YOU GAVE HER A CHANCE TO SEE THE BODY, THEN WHAT HAPPENED?

A: WAITED BY THE SIDE OF THE ROAD FOR THE POLICE OFFICER TO COME.

Q: ARE YOU ABLE TO ESTIMATE HOW LONG IT TOOK THE OFFICER TO SHOW UP?

A: I DON’T — NOT REALLY. I WAS PRETTY MUCH JUST IN A HAZE. I WOULD GUESS AT FORTY OR UNDER FORTY MINUTES FROM THE MOMENT I CALLED.

Q: ONCE THE OFFICER SHOWED UP, WHAT HAPPENED?

A: I DIRECTED — I WENT UP AGAIN AND DIRECTED HIM WHERE THE BODY WAS. AND THEN HE DIRECTED US ALL TO STAY BACK. AND THEN WE IN TURN ENDED UP GOING ACROSS THE STREET AND WAITING WITH OTHER OFFICERS ONCE THEY SHOWED.

Q: WHEN YOU WENT UP WITH THE FIRST OFFICER TO ARRIVE, DID YOU OR HE OR ANYBODY ELSE WITH YOU ALTER OR DISTURB THE SCENE AT THAT LOCATION?

A: NO.

Q: DID YOU HAVE A CAMERA WITH YOU?

A: YES.

Q: WHY?

A: I BRING MY CAMERA WITH ME ALL THE TIME WHEN MY FRIEND CHRIS AND I HANG OUT. WE HAVE KNOWN EACH OTHER FOR YEARS.

Q: DID YOU USE IT?

A: ALL THE TIME.

Q: DID YOU USE IT ON THIS OCCASION?

A: YES.

Q: WHEN?

A: AFTER I CALLED SHAWNA.

Q: WHAT DID YOU TAKE A PICTURE OF?

A: OF THE BODY OF DANIELLE.

Q: WHY?

A: I THINK — I THINK INITIALLY I WAS THINKING MAYBE SOMETHING I DID COULD MAKE A DIFFERENCE AND MAYBE IF A PHOTO THAT I HAD PRIOR TO ANY OTHER TAMPERING COULD HAVE MAYBE BENEFITTED. BUT THAT’S WHY.


Q: WHAT DID YOU DO WITH THAT PHOTOGRAPH — OR HOW MANY DID YOU TAKE?

A: I TOOK THREE.

Q: WHAT DID YOU DO WITH THEM?

A: HELD ON TO THEM. AND THE MOMENT I REALIZED I WATCHED ON THE NEWS, I — THE MOMENT I REALIZED THE BODY WAS MOVED PRIOR TO A TWENTY-FOUR-HOUR PERIOD GOING AROUND TO BE ABLE TO TAKE THE SAME TYPE OF PHOTOS, I THOUGHT MAYBE MY PHOTOS COULD MAKE A DIFFERENCE OR COULD POSSIBLY BE CONSIDERED SOMETHING THAT’S HELPFUL. SO I CALLED THE D. A.

Q: DID YOU TURN THEM OVER TO THE DISTRICT ATTORNEY’S OFFICE?

A: NO. HE SHOWED UP AT MY HOUSE I BELIEVE. BUT FOR ALL INTENTS AND PURPOSES, YES.

Q: DID YOU EVER THINK ABOUT SELLING THEM?

A: NO.

MR. DUSEK: THANK YOU, SIR.

THE COURT: CROSS-EXAMINATION.

MR. BOYCE: THANK YOU, YOUR HONOR.

CROSS-EXAMINATION

BY MR. BOYCE:

Q: BEFORE YOU JOINED THE SEARCH PARTY, YOU WENT TO A REAL ESTATE OFFICE IN POWAY. THAT’S WHERE YOU MET THE OTHER PEOPLE.


A: CORRECT.

Q: THAT WAS ABOUT 9:30 ON FEBRUARY 27TH.

A: I WOULD SAY APPROXIMATELY, YES.

Q: AND THEY BRIEFED YOU ON WHAT YOU SHOULD DO IF YOU FOUND ANYTHING, IS THAT CORRECT?

A: CORRECT.

Q: THEY TOLD YOU THAT IF YOU FOUND A BODY OR ANYTHING SUSPICIOUS THAT YOU SHOULDN’T GET NEAR IT, IS THAT RIGHT?


A: CORRECT.

Q: THEY TOLD YOU NOT TO TOUCH IT.

A: CORRECT.

Q: THEY TOLD YOU NOT TO MOVE IT.

A: CORRECT.

Q: AND AFTER YOU WERE BRIEFED, YOU WERE TAKEN TO AN AREA AND YOU BEGAN SEARCHING, IS THAT RIGHT?

A: YES.

Q: THERE WERE ABOUT THIRTEEN PEOPLE IN YOUR SEARCH GROUP.

A: YES.

Q: THERE WERE THIRTEEN PEOPLE IN YOUR GROUP.

A: CORRECT.

Q: YOU WERE — YOU SPREAD OUT AND YOU BEGAN TO SEARCH, IS THAT RIGHT?

A: YES.

Q: THEN THAT BEGAN ABOUT NOON ON THE 27TH.

A: SOMEWHERE AROUND THAT TIME, YES.

Q: AND THEN LATER IN THE AFTERNOON YOU WERE IN A PARTY OF FIVE.

A: CORRECT.

Q: IT WAS ABOUT 2:09 P.M. THAT YOU FOUND THE BODY OF DANIELLE?

A: 2:09 IS WHEN I CALLED NINE-ONE-ONE, YES.

Q: WHEN YOU FOUND THE BODY OF DANIELLE, YOU GOT WITHIN FOUR OR FIVE FEET OF THE BODY, IS THAT RIGHT?

A: UP TO.

Q: NO CLOSER THAN FOUR OR FIVE FEET.

A: CORRECT.


Q: AND WHEN YOU CALLED NINE-ONE-ONE, THEY TOLD YOU NOT TO TOUCH THE BODY.

A: YEAH. YEAH. BUT I THINK IF THEY HAD SAID THAT, I WASN’T THINKING THAT I — THAT THEY HAD TOLD ME; IT WAS SOMETHING I WAS ALREADY THINKING.

Q: THEY TOLD YOU TO SECURE THE SCENE, IS THAT RIGHT?

A: THE FIRST OFFICER DID. AND AS WELL AS THE SEARCH TEAM THAT INSTRUCTED US ON WHAT TO DO.

Q: OKAY.

WELL, NINE-ONE-ONE TOLD YOU TO WAIT THERE, IS THAT RIGHT?

A: CORRECT. WAIT BY THE SIDE OF THE ROAD.

Q: WHEN YOU FOUND THE BODY, IT WASN’T BURIED, WAS IT?

A: CORRECT.

Q: IT WAS OUT IN THE OPEN.

A: YES.

Q: NOTHING WAS COVERING IT.

A: NO.

Q: IT WAS IN FULL VIEW.

A: FULL VIEW FROM A DISTANCE, YES.

Q: AFTER YOU CALLED NINE-ONE-ONE, YOU WENT AND WAITED AT THE SIDE OF THE ROAD, IS THAT RIGHT?

A: NO. I RAN TOWARDS A CALLBOX TO FIND OUT WHAT THE CALLBOX NUMBER WAS SO THAT I CAN INSTRUCT THE OFFICER AS TO EXACTLY WHERE IT WAS WE WERE. I ONLY KNEW THAT WE WERE EAST OF SINGING HILLS GOLF COURSE.

Q: SOME TIME LATER POLICE ARRIVED.

A: YES.


Q: AND BEFORE THE POLICE ARRIVED, THE REST OF YOUR GROUP JOINED YOU, IS THAT RIGHT?

A: YES.

Q: AND THERE WERE FIVE OTHER MEMBERS OF YOUR GROUP.

A: YES. NO. FOUR OTHER.

Q: FOUR OTHER MEMBERS OF YOUR GROUP.

A: INCLUDING —

Q: IN ANY EVENT, THE OTHER MEMBERS OF YOUR GROUP, UP UNTIL THE TIME THEY JOINED YOU, HAD BEEN SEARCHING THIS AREA ALSO, HADN’T THEY?

A: YEAH. IN A DIFFERENT — DIFFERENT SECTION, YES.

Q: THEY WERE SPREAD OUT AND WALKING AROUND THE AREA, IS THAT RIGHT?

A: CORRECT.


Q: AND AFTER YOUR GROUP JOINED YOU, DID YOU SEE ANY OF THEM DISTURB THE BODY AT ALL?

A: NO.


Q: YOU DIDN’T SEE THEM MOVE THE BODY.

A: THEY WERE ALSO INSTRUCTED TO BE ON THE ROAD.

Q: YOU DIDN’T SEE THEM APPROACH AND TOUCH THE BODY AT ANY TIME.

A: THERE IS NO WAY THEY COULD HAVE, NO.

Q: BEFORE THE POLICE ARRIVED, DID YOU SEE ANYONE TOUCH, DISTURB, OR MOVE THE BODY?

A: NO.

Q: THE AREA IN WHICH YOU FOUND THE BODY, PEOPLE HAD BEEN DUMPING THEIR TRASH, IS THAT CORRECT?

A: NEAR IT, YES.

Q: THEY WERE DUMPING THEIR TRASH IN VARIOUS AREAS AROUND THE BODY, IS THAT RIGHT?

A: CORRECT.

Q: THERE WASN’T ANY SPECIFIC LOCATION WHERE SOMEBODY WOULD GO OUT AND DUMP THEIR TRASH.

A: I WOULD SAY YES, THERE IS. SEEING THAT THERE’S TRASH THERE, THE LOGICAL PLACE TO DUMP TRASH WOULD BE OFF THE SIDE OF THE ROADWAY THAT LEADS UP TO THAT. IT WOULD SEEM LOGICAL TO DUMP YOUR TRASH THERE RATHER THAN UNDERNEATH A TREE.


Q: BUT DID IT APPEAR THAT THIS WAS A MARKED, A GOVERNMENT-MARKED AREA FOR TRASH DUMPING?

A: NO.


Q: THIS WAS JUST AREAS WHERE PEOPLE STOPPING BY THE SIDE OF THE ROAD WOULD DUMP THEIR TRASH.

A: YES.

Q: AND YOU SAW TRASH SCATTERED AROUND THAT AREA.

A: YES.

Q: WHAT DID YOU DO WITH THE SHOES THAT YOU WERE WEARING THAT NIGHT?

A: THEY WERE TAKEN FROM ME BEFORE I LEFT.

Q: WHO TOOK THEM?

A: A POLICE OFFICER OR DETECTIVE. I’M NOT SURE OF HIS NAME.

Q: THAT NIGHT WHEN THE POLICE ARRIVED, DID YOU TELL THEM YOU HAD TAKEN PHOTOS?

A: NO.

(DISCUSSION OFF THE RECORD BETWEEN MR. BOYCE

AND MR. FELDMAN.)

MR. BOYCE: YOUR HONOR, I HAVE A PAGE OF PHOTOS. PERHAPS IF WE COULD HAVE THE PAGE MARKED AS THE COURT’S NEXT IN ORDER.

THE COURT: ALL RIGHT. THAT WILL BE FIVE FOR IDENTIFICATION.

(EIGHT PHOTOGRAPHS CONTAINED IN A PLASTIC SHEET

MARKED TRIAL EXHIBIT NUMBER 5 FOR IDENTIFICATION.)

(DISCUSSION OFF THE RECORD BETWEEN MR. BOYCE

AND MR. DUSEK.)

THE COURT: PEGGY, DO YOU HAVE A GREASE PEN YOU CAN USE TO DESIGNATE A, B, C, AND SO FORTH?

MR. BOYCE, ARE THOSE SECURED IN SOME WAY OR DO THEY NEED TO BE TAPED IN PLACE?

MR. BOYCE: THEY ARE SECURED ON THE PAPER, YOUR HONOR.

THE COURT: OKAY.

BY MR. BOYCE:

Q: SIR, SHOWING YOU WHAT’S BEEN MARKED AS COURT EXHIBIT 5. THERE ARE EIGHT PHOTOGRAPHS MARKED A THROUGH H. IF YOU COULD LOOK AT THOSE PHOTOGRAPHS AND BEGINNING WITH A, DO YOU RECOGNIZE THAT PHOTOGRAPH?

A: NO.

Q: HOW ABOUT B, DO YOU RECOGNIZE THAT PHOTOGRAPH?

A: NO.

Q: C.

A: LOOKS VAGUELY FAMILIAR. COULD BE NEAR WHERE WE WERE SEARCHING.

Q: WHEN YOU SAY SEARCHING, SEARCHING WHEN YOU FOUND THE BODY OR AT SOME OTHER TIME?

A: WHEN WE — YEAH. WHEN WE WERE SEARCHING FOR THE BODY.

Q: DO YOU HAVE ANY RECOLLECTION AS TO HOW FAR THAT PHOTOGRAPH C WAS FROM WHERE YOU FOUND DANIELLE?

A: NOT WITHOUT A BROADER PICTURE.

Q: WHAT ABOUT D; DO YOU RECOGNIZE THAT PHOTO?

A: THAT LOOKS LIKE THE PATHWAY IN OFF THE ROAD THAT I WAS DESCRIBING.

Q: TOWARDS DANIELLE’S BODY?

A: YES. IT ALSO COULD BE — YEAH. YES.

Q: THAT’S PHOTOGRAPH D. CORRECT?

A: CORRECT.

Q: REFERRING TO PHOTOGRAPH E, DO YOU RECOGNIZE THAT AREA DEPICTED IN PHOTOGRAPH E?

A: NO. NO.

Q: PHOTOGRAPH F.

A: A LITTLE MORE FAMILIAR. IT WAS A LITTLE BIT MORE OF THE THINGS THAT WE WERE LIFTING UP.

Q: IN THE AREA OF WHERE YOU FOUND THE BODY OF DANIELLE

VAN DAM.

A: YES.

Q: PHOTOGRAPH G.

A: YEAH. THAT’S FAMILIAR. WHICH IS ALSO IN THE PHOTO OF G.

Q: YOU REFERRED TO H JUST NOW.

A: G AND H HAD THE SAME ITEM THAT LOOKS FAMILIAR.

Q: OF THE AREA WHERE YOU FOUND THE BODY.

A: CORRECT.

MR. BOYCE: THANK YOU.

NOTHING FURTHER, YOUR HONOR.

THE COURT: ANYTHING FURTHER?

REDIRECT EXAMINATION

BY MR. DUSEK:

Q: LET’S SEE IF WE CAN RELATE THOSE TO AN OVER-ALL PHOTOGRAPH IF POSSIBLE. LET ME DIRECT YOUR ATTENTION BACK TO COURT EXHIBIT 3, THE TWO AERIAL PHOTOGRAPHS THAT APPEAR TO GIVE VARYING VIEWS OF THE AREA WHERE THE BODY WAS FOUND. THE PHOTOGRAPHS THAT YOU JUST WERE SHOWN BY DEFENSE COUNSEL, DO YOU SEE THE AREAS DEPICTED ON ANY OF THESE, EITHER OF THESE AERIAL PHOTOGRAPHS, RELATING TO THE SMALLER PHOTOGRAPHS THAT THEY JUST SHOWED YOU?

A: YES.


Q: COULD YOU TAKE COURT’S EXHIBIT 5, THE SMALLER PHOTOGRAPH DEFENSE COUNSEL GAVE YOU, AND I THINK YOU TOLD US THAT PHOTOGRAPH C WAS VAGUELY FAMILIAR.

A: CORRECT.

Q: DO YOU SEE WHERE THAT MIGHT BE IN EITHER PHOTOGRAPH A OR B?

A: YES.

Q: WHERE WOULD THAT BE?

A: SHALL I CIRCLE IT?

Q: WHY DON’T YOU TAKE A C OR MAKE A C.

A: THIS IS EXHIBIT 5? 5-C?

Q: OKAY.

A: (THE WITNESS COMPLIED.)

Q: HAVE YOU DONE THIS BEFORE?

ALL RIGHT. YOU’VE DONE THAT IN THE PHOTOGRAPH B ON EXHIBIT 3.

I THINK DID YOU RECOGNIZE ANY OF THE OTHER PHOTOGRAPHS ON THE A, B, C, D SIDE?

A: WHEN CORRELATING THE TWO PICTURES I THINK B MIGHT ALSO BE IN THERE.

Q: WHERE?

A: DID I SAY D?

Q: TAKE A LOOK AGAIN.

A: 5-B.

Q: OKAY.

YOU’VE DRAWN IN 5-B ON EXHIBIT 3-B.

HOW ABOUT ON THE BACK SIDE OF EXHIBIT 5; DID YOU RECOGNIZE ANY OF THOSE?

A: YES. G AND — WELL, F. RIGHT HERE.

(THE WITNESS MARKED ON EXHIBIT 3.)

Q: ALL RIGHT.

YOU’VE DRAWN IN THE LINES TO INDICATE TO WHERE YOU BELIEVE THEY EXIST, IS THAT CORRECT?

A: CORRECT.

Q: THAT’S ON EXHIBIT 3, PHOTOGRAPH B.

MR. DUSEK: THANK YOU, SIR.

THE COURT: ALL RIGHT.

ANYTHING FURTHER?

MR. DUSEK: NO, YOUR HONOR.

MR. BOYCE: NO, YOUR HONOR.

THE COURT: IS THIS WITNESS TO BE EXCUSED?

MR. DUSEK: YES.

MR. BOYCE: YES.

THE COURT: ALL RIGHT.

THANK YOU VERY MUCH, SIR, FOR COMING IN. YOU ARE FREE TO LEAVE. REMEMBER THE ADMONITION OF THE COURT, HOWEVER, SIR, YOU ARE NOT TO DISCUSS YOUR TESTIMONY WITH ANY OTHER PERSONS UNTIL THIS MATTER IS CONCLUDED. OKAY.

THE WITNESS: THANK YOU.

THE COURT: THANK YOU VERY MUCH FOR COMING IN.

THE WITNESS: YOU’RE MORE THAN WELCOME.

(THE WITNESS WAS EXCUSED.)

THE COURT: ALL RIGHT. MR. DUSEK.

MR. DUSEK: CHRIS MORGAN.

CHRIS MORGAN,

CALLED AS A WITNESS BY THE PLAINTIFF, HAVING BEEN DULY SWORN, TESTIFIED AS FOLLOWS:

THE CLERK: SIR, WOULD YOU PLEASE STATE YOUR NAME AND SPELL IT FOR THE RECORD.

THE WITNESS: CHRIS MORGAN. C-H-R-I-S M-O-R-G-A-N.

DIRECT EXAMINATION

BY MR. DUSEK:

Q: GOOD AFTERNOON, MR. MORGAN.

ARE YOU EMPLOYED, SIR?

A: I AM NOW, YES.

Q: WHAT TYPE OF WORK DO YOU DO?

A: I’M A SALES REP. FOR CITY MEAT.

Q: I WOULD LIKE TO DIRECT YOUR ATTENTION BACK TO FEBRUARY 27TH OF THIS YEAR. WERE YOU WORKING AT THAT TIME?

A: I WAS UNEMPLOYED THEN.

Q: DID YOU BECOME INVOLVED IN AN ACTIVITY THAT DAY?

A: I DID.

Q: WHAT WAS THAT?

A: IT WAS VOLUNTEER SEARCH FOR THE MISSING DANIELLE.

Q: HOW DID YOU BECOME INVOLVED IN THAT?

A: I DECIDED TO VOLUNTEER MY TIME ONE DAY.

Q: WHY?

A: I DECIDED TO DO IT BECAUSE I WAS, LIKE I SAID, UNEMPLOYED, I HAD TIME. AND I SAW A LOT OF OTHER PEOPLE DOING IT, AND I THOUGHT IT WOULD BE A GOOD THING TO DO.

Q: ONCE YOU DECIDED TO MAKE THAT DECISION, DID YOU NOTIFY ANYBODY ELSE?

A: CALLED MY GOOD FRIEND KARSTEN HEIMBURGER.

Q: HE IS THE FELLOW WHO JUST LEFT THE COURTROOM?

A: HE WAS. RED HAIR.


Q: DID HE JOIN YOU IN YOUR EFFORT?

A: HE DID. WE WENT THERE TOGETHER.

Q: WHERE DID YOU GO TO GET STARTED?

A: WE MET AT THE REMAX CENTER IN POWAY ROAD. THAT’S WHERE THE VOLUNTEER HEADQUARTERS WERE FOR THE SEARCH.

Q: WHAT HAPPENED THERE?

A: WE GOT THERE ABOUT 9:30 AND WERE PLACED INTO A GROUP. I THINK THERE WERE THREE GROUPS TO GO OUT SEARCHING FOR DANIELLE THAT DAY, AND WE WERE THE LAST GROUP TO GO OUT.

Q: WHY WERE YOU THE LAST ONE?

A: THE LAST ONE, WE GOT THERE LATE AND KARSTEN FORGOT HIS I.D., DRIVER’S LICENSE, AND HE NEEDED THAT TO VOLUNTEER. SO WE HAD TO GO BACK AND GET IT.

Q: WHEN YOU WERE SENT OUT, WERE YOU SENT TO A SPECIFIC LOCATION?

A: WE WERE — YEAH. A SPECIFIC AREA.

Q: WHERE?

A: OUT BY SINGING HILLS GOLF COURSE IN WILLOW GLEN, EL CAJON, I THINK.

Q: ARE YOU FAMILIAR WITH THAT?

A: I AM. JUST BECAUSE I GOLFED THERE SEVERAL TIMES OUT IN THAT AREA.

Q: HOW MANY VOLUNTEERS WENT OUT THERE?

A: IN OUR GROUP I BELIEVE THERE WERE ELEVEN AT THE START OF THE DAY. ELEVEN TO THIRTEEN MAYBE.

Q: WAS THERE SOMEBODY IN CHARGE?

A: THERE WAS A GROUP LEADER. HER NAME WAS SHAWNA. YES.

Q: WHEN YOU GOT TO THE LOCATION, WHERE WAS IT THAT YOU PARKED?

A: WE ACTUALLY PARKED IN THE SINGING HILLS RESORT, THE GOLF RESORT RIGHT THERE, AND SEARCHED RIGHT IN FRONT.

Q: DESCRIBE THE AREA THAT YOU WERE SEARCHING INITIALLY.

A: INITIALLY IT WAS CANYONESQUE, VERY HILLY, RUGGED, HILLY AREA, BUSHES PROBABLY WAIST HIGH WITH A LOT OF WEEDS AND ROCKS.

Q: WAS THERE A METHOD OF THE SEARCH?

A: YEAH. WE SPLIT UP PROBABLY TEN, FIFTEEN YARDS APART AND JUST CANVASSED THE ONE AREA WHERE WE STARTED.


Q: HOW LONG WOULD YOU SAY YOU WERE AT THAT?

A: PROBABLY THERE FOR AN HOUR, HOUR AND A HALF INITIALLY.

Q: LET ME SHOW YOU SOME PHOTOGRAPHS. THE FIRST ONE BEING WHAT’S BEEN MARKED AS COURT’S EXHIBIT 2. THIS AERIAL PHOTOGRAPH LABELED AT THE TOP RECOVERY SITE ROMAN NUMERAL ONE. DO YOU RECOGNIZE WHAT WE HAVE DEPICTED HERE, SIR?

A: I DO.

Q: IN FACT, I SHOWED IT TO YOU UPSTAIRS AT LUNCH, DIDN’T I?

A: YES.


Q: PHOTOGRAPH A, DO YOU SEE SINGING HILLS ON THERE?

A: I SEE THE EDGE OF IT IN PHOTOGRAPH A, YEAH, THE BACK BY THE WATER THERE.

Q: CAN YOU TAKE THE MARKER THERE IN FRONT OF YOU, THE POINTER, AND POINT TO THE AREA OF SINGING HILLS COUNTRY CLUB OR GOLF COURSE.

A: THAT’S THE BACK SIDE OF IT RIGHT THERE.

Q: THE GREEN AREA AT THE TOP CENTER OF PHOTOGRAPH A?

A: CORRECT.

Q: ONCE YOU COMPLETED THE SEARCH AT THAT AREA, DID YOU GO SOMEWHERE ELSE?

A: WE DID. WOULD YOU LIKE ME TO SHOW YOU UP THERE?

Q: SURE.

A: WE PARKED OUR CARS JUST AROUND THIS BEND HERE. ME AND KARSTEN CONTINUED IN THIS DIRECTION, AND THE THREE OTHER SEARCHERS THAT WERE WITH US AT THAT TIME STAYED AND WENT THAT WAY.

Q: ALL RIGHT.

MR. FELDMAN: EXCUSE ME, YOUR HONOR.

BY MR. DUSEK:

Q: BECAUSE I WILL NOW TRY TO DESCRIBE THAT, WHERE YOU INDICATED YOU PARKED THE CAR WOULD BE UP APPROXIMATELY WHERE THE C IS, IS THAT CORRECT?

A: YES.

Q: AND THE OTHER GROUP, WHERE YOU INDICATED THEY WENT BACK FROM THE C AND SEARCHED BACK TOWARDS SINGING HILLS.

A: CORRECT.

Q: AND YOU INDICATED YOU AND KARSTEN —

A: KARSTEN.

Q: — SEARCHED ON THE WATER SIDE OF THE ROAD THAT’S DEPICTED IN PHOTOGRAPH A.

A: THAT’S WHERE WE STARTED OUR SEARCH, YES.

Q: AND THE OTHER PART OF YOUR GROUP WAS ON THE HILL SIDE OF THE ROAD.

A: I DON’T KNOW EXACTLY WHERE THEY WERE. THEY WERE JUST BEHIND THIS MOUNTAIN; THEY COULD HAVE BEEN ON BOTH SIDES OF THE ROAD.

Q: AS YOU WERE COMING DOWN THE WATER SIDE OF THE ROAD, —

A: M-HM.


Q: — WHAT WERE YOU DOING?

A: WE WERE LOOKING UNDER BUSHES, PICKING UP BOXES, LOOKING EVERYWHERE WE COULD.

Q: DID YOU FIND ANYTHING?

A: NOT WHAT WE WERE LOOKING FOR. WE FOUND A BUNCH OF JUNK.

Q: HOW FAR DOWN THAT ROAD DID YOU GO WOULD YOU ESTIMATE?

A: ON THAT ROAD PROBABLY A MILE, MILE AND A HALF MAYBE. MAYBE THAT FAR.

Q: WHEN YOU GOT TO THE END OF THAT SIDE OF THE ROAD, WHAT DID YOU DO?

A: WE TURNED AROUND AND STARTED TO GO IN THE OPPOSITE DIRECTION BACK TOWARDS OUR PARKED CAR ON THE OTHER SIDE OF THE STREET.

Q: AND WHERE YOU TURNED AROUND, WOULD THAT BE BELOW THE PHOTOGRAPH IN EXHIBIT 2-A?

A: YES.

Q: DID YOU FIND ANY REMAINS ON THE WATER SIDE OF THE ROAD BEFORE YOU CROSSED OVER?

A: FOUND SOME REMAINS OF A DECAYING DOG. BUT NO HUMAN REMAINS, NO.

Q: ONCE YOU CROSSED THE ROAD AND WERE ON THE HILL SIDE OF THE ROAD, DESCRIBE YOUR PROCESS AS YOU WENT BACK TOWARDS YOUR CAR.

A: MUCH THE SAME THING. WE SPLIT, ME AND KARSTEN SPLIT UP ABOUT TEN YARDS APART LENGTHWISE AND JUST WALKED AND LOOKED UNDER BUSHES AND WHATEVER WE FOUND, LOOKING FOR ANY CLUES OR WHAT WE WERE LOOKING FOR DANIELLE.

Q: EVENTUALLY DID YOU FIND SOMETHING?

A: EVENTUALLY WE DID.

Q: DESCRIBE HOW THAT CAME TO BE.

A: WE — LIKE I SAID, WE WERE WALKING AND SEARCHING, AND I GOT WHIFF OF AN ODOR THAT SMELLED A LOT LIKE THE DOG THAT WE HAD SEEN PREVIOUSLY, ABOUT A HALF-HOUR BEFOREHAND. AND MAYBE A COUPLE MINUTES AFTER THAT I LOOKED UNDER A TREE AND SAW A BODY LAYING ON HER BACK.

Q: WHO WAS THE FIRST ONE TO SPOT HER?

A: I WAS THE FIRST ONE TO SPOT HER.

Q: DO YOU SEE THE TREE VISIBLE WHERE SHE WAS IN EXHIBIT 2?

A: YES.

Q: WHICH PHOTOGRAPH, A OR B?

A: THE BOTTOM PHOTOGRAPH HERE.

Q: AND WHERE WAS SHE?

A: SHE WAS RIGHT WHERE THAT ARROW IS UNDER THE TREE.

Q: WHAT DID YOU SEE?

A: I SAW A BADLY DECAYED YOUNG GIRL ON HER BACK AND LOOKED LIKE HER HEAD, HER HEAD WAS TO THE RIGHT. AND LIKE I SAID, SHE WAS SEVERELY DECAYED.

Q: HOW COULD YOU TELL?

A: INITIALLY BY THE ODOR. AND WE GOT A CLOSER LOOK JUST TO CONFIRM WHAT WE WERE SEEING, AND WE COULD TELL.


Q: HOW BIG DID SHE APPEAR TO BE?

A: FOUR FEET MAYBE. FOUR FEET IN LENGTH.

Q: COULD YOU TELL THE RACE?

A: THE BODY WAS REALLY DARK BROWN, BUT I COULD TELL IT WAS A BLONDE-HAIRED GIRL.

Q: DID YOU SEE ANY JEWELRY?

A: I DID. I SAW A SHINY EARRING ON HER LEFT EAR.

Q: HOW CLOSE DID YOU GET TO HER?

A: PROBABLY ABOUT FOUR FEET. FOUR TO FIVE FEET.

Q: LET ME DIRECT YOUR ATTENTION TO EXHIBIT 4, COURT’S EXHIBIT 4, LABELED “DEHESA ROAD RECOVERY SITE” ON IT WITH SIX PHOTOGRAPHS. DO YOU RECOGNIZE WHAT WE HAVE DEPICTED THERE?

A: YES.

Q: THE TOP PHOTOGRAPHS, A, B, AND C, WHAT DO THEY SHOW, SIR?

A: THEY SHOW THE TREE WHERE SHE WAS FOUND LOOKING FROM THE STREET SIDE.

Q: PHOTOGRAPH D, WHAT DOES THAT SHOW US?

A: THAT SHOWS WHERE WE FOUND HER.

Q: IS SHE THE INDIVIDUAL CIRCLED INSIDE THAT BLACK MARKER?

A: YES.

Q: E AND F, WHAT DO THEY SHOW?

A: CLOSEUP OF THE BODY THAT I DESCRIBED.

Q: HOW CLOSE DID YOU GET?

A: AROUND FOUR TO FIVE FEET FROM THE BODY.

Q: DID YOU SEE ANY CLOTHING?

A: I SAW — I COULDN’T — NO, I COULDN’T DETERMINE IF THERE WAS CLOTHING.

Q: DO YOU KNOW IF THERE HAD BEEN ANY EFFORTS BY LOOKING AT THE GROUND IN THE TERRAIN AROUND HER WHETHER OR NOT THERE HAD BEEN ANY EFFORTS TO BURY HER?

A: DID NOT LOOK LIKE THERE WERE ANY EFFORTS TO BURY HER.

Q: WAS SHE MISSING ANY PARTS THAT YOU COULD TELL?

A: YES.

Q: WHAT?

A: SHE WAS MISSING A FOOT AND A LOT OF FLESH ON HER LEGS.

Q: DID YOU APPROACH OR CONTACT HER IN ANY SORT OF WAY?

A: I DID NOT.

Q: HOW ABOUT YOUR FRIEND KARSTEN, DID EITHER OF YOU?

A: NEITHER OF US TOUCHED HER OR MESSED WITH HER.

Q: WHAT DID YOU DO?

A: WE WERE BOTH IN KIND OF SHOCK AT THAT TIME. AND THEN MAYBE A MINUTE OR TWO WENT BY AND WE CALLED NINE-ONE-ONE. KARSTEN CALLED ON HIS CELL. PHONE.

Q: AFTER THE NINE-ONE-ONE CALL WAS MADE, WHAT WAS THE NEXT THING THAT YOU GUYS DID?

A: THE NEXT THING WE CALLED THE THREE REMAINING SEARCH PARTY MEMBERS AND TOLD THEM THAT WE HAD FOUND DANIELLE AND THEN WAITED FOR THEM TO ARRIVE.

Q: YOU THOUGHT SHE WAS DANIELLE?

A: I DID.

Q: WHY?

A: BECAUSE OF THE BLONDE HAIR. THE REASON, THE FACT THAT WE WERE SEARCHING FOR A GIRL WITH BLONDE HAIR. AND I ALSO NOTICED THE EARRING. HER TEETH STRUCTURE LOOKED A LOT LIKE THE PHOTO. SHE HAD A GAP IN HER TEETH AND RESEMBLED THE MISSING PERSONS PHOTO.

Q: ONCE YOU NOTIFIED YOUR GROUP LEADER, WHAT WAS THE NEXT THING THAT HAPPENED?

A: AFTER THAT WE WAITED FOR THE POLICE TO ARRIVE. THE THREE PEOPLE IN OUR GROUP SHOWED UP, AND THEY TOOK A LOOK AT THE BODY AS WELL.

Q: WHO ALL WENT UP THERE ON THIS SECOND OCCASION?

A: THERE WERE FIVE OF US. THE THREE PEOPLE WHO SHOWED UP, AND THEN ME AND KARSTEN. SO FIVE TOTAL.

Q: THE ENTIRE GROUP?

A: CORRECT.

Q: WHEN YOU WENT BACK UP THERE THAT SECOND TIME, DID ANYONE TOUCH HER, MOVE HER, DISTURB HER IN ANY SORT OF WAY?

A: NO ONE TOUCHED HER.

Q: OR DISTURB ANY OF THE SURROUNDINGS AROUND HER?

A: NO.

Q: AFTER THE GROUP OF FIVE VIEWED THE BODY, WHAT HAPPENED?

A: WE WAITED FOR THE POLICE TO COME, AND WE TOOK SOME PHOTOGRAPHS OF HER.

Q: WHO DID?

A: KARSTEN TOOK THE ACTUAL PHOTOGRAPHS.

Q: ARE YOU ABLE TO ESTIMATE FOR US HOW LONG IT TOOK FOR THE LAW ENFORCEMENT TO SHOW UP AFTER THE NINE-ELEVEN CALL?

A: CLOSE TO A HALF AN HOUR I WOULD SAY.

Q: WERE YOU KEEPING TRACK?

A: WE DIDN’T HAVE A CLOCK ON. IT JUST FELT LIKE A HALF AN HOUR.

Q: WHAT WERE YOU DOING DURING THAT TIME?

A: WE WERE HUGGING EACH OTHER, CONSOLING EACH OTHER, LOOKING AT THE BODY.

MR. DUSEK: THANK YOU, SIR.

THE COURT: ALL RIGHT.

CROSS-EXAMINATION.

CROSS-EXAMINATION

BY MR. BOYCE:

Q: I BELIEVE WHEN YOU WERE JUST ANSWERING SOME OF THE QUESTIONS, AS YOU — JUST BEFORE YOU FOUND THE BODY OR AS YOU FOUND THE BODY, YOU SAW SOME CLOTHING OR SOME OTHER ITEMS NEARBY.

A: THERE WAS JUNK STREWN ALL AROUND. I DON’T KNOW ABOUT CLOTHING.

Q: YOU DIDN’T GO THROUGH ALL THE JUNK I TAKE IT THAT WAS IN THAT AREA.

A: WE LIFTED SOME. THERE WERE SOME OLD MATTRESSES, OLD REFRIGERATORS. WE MOVED BIG OBJECTS AROUND TO SEE IF ANYTHING WAS UNDER IT, YES.

Q: WAS THAT BEFORE OR AFTER YOU FOUND THE BODY?

A: BEFORE. AFTER WE FOUND THE BODY WE STOPPED LOOKING.

Q: FROM THE POINT THAT YOU FOUND THE BODY UNTIL THE POLICE ARRIVED, YOU DIDN’T TOUCH THE BODY, IS THAT CORRECT?

A: THAT’S CORRECT.

Q: YOU DIDN’T MOVE IT.

A: CORRECT.

Q: YOU DIDN’T SEE ANYBODY ELSE DISTURB THE BODY.

A: I DID NOT.

Q: IN ANY WAY.

A: IN ANY WAY.

Q: AND, IN FACT, BEFORE YOU BEGAN SEARCHING FOR THE BODY, YOU WERE BRIEFED ON SOME PROCEDURES TO USE DURING YOUR SEARCH.

A: YEAH. I BELIEVE SO.

Q: AND PART OF THE PROCEDURES WERE THAT IF YOU FOUND ANYTHING THAT WAS A BODY OR APPEARED SUSPICIOUS, YOU WEREN’T TO MOVE OR DISTURB IT, IS THAT RIGHT?

A: I THINK THAT’S CORRECT. WE WERE SUPPOSED TO PUT A BRIGHT-COLORED TAG ON IT OR SOMETHING SUSPICIOUS, YES.

Q: THE PHOTOS YOU’VE BEEN REFERRING TO, YOU WERE SHOWN THOSE EARLIER BY MR. DUSEK, IS THAT RIGHT?

A: THAT’S CORRECT.

Q: THAT WAS IN HIS OFFICE.

A: YES.

Q: AND YOU WERE WITH KARSTEN AT THAT TIME.

A: I WAS NOT. I WAS JUST WITH —

Q: YOU WERE BY YOURSELF?

A: YES.

Q: NONE OF THE OTHER MEMBERS OF YOUR SEARCH PARTY WERE WITH YOU?

A: NO.

Q: THE SHOES THAT YOU WERE WEARING, WHAT HAPPENED TO THOSE SHOES?

A: THEY WERE TAKEN BY THE POLICE.

Q: THE POLICE THAT ARRIVED AT THE SCENE THAT NIGHT?

A: THE SAN DIEGO P. D., CORRECT. NOT THE SHERIFF.

Q: THAT AFTERNOON. I’M SORRY.

A: NO. THEY WERE TAKEN TOWARDS EVENING.

Q: TOWARDS EVENING.

A: YEAH.

Q: WHEN YOU WERE SHOWN THE PHOTOGRAPHS BY MR. DUSEK, IS THAT THE FIRST TIME YOU MET HIM?

A: YES.

Q: HOW LONG WAS THIS MEETING?

A: TEN MINUTES.

Q: WAS ANYONE ELSE PRESENT BESIDES YOU AND MR. DUSEK?

A: YES.

Q: WHO ELSE WAS PRESENT?

A: THESE TWO GENTLEMEN HERE.

Q: THIS GENTLEMAN IMMEDIATELY TO —

A: YES.

Q: — TO MR. DUSEK’S RIGHT?

A: THAT’S CORRECT.

Q: AND THIS GENTLEMAN?

A: YES.

Q: ALSO — AND HE’S SEATED TWO SEATS FROM MR. DUSEK, IS THAT RIGHT?

A: PARDON?

Q: MR. CLARKE THAT’S SEATED TWO SEATS FROM MR. DUSEK.

A: HE WAS ACROSS THE DESK.

Q: AND SERGEANT HOLMES, WERE YOU INTRODUCED TO HIM?

A: YES. HE WAS BEHIND ME.

Q: DID THEY TELL YOU WHAT QUESTIONS THEY WOULD BE ASKING YOU?

A: NOT REALLY.

Q: DID THEY TELL YOU YOU WOULD BE TESTIFYING, THOUGH, RIGHT?

A: YES.

Q: DID THEY TELL YOU THAT THE DEFENSE LAWYERS WOULD HAVE SOME QUESTIONS FOR YOU?

A: YEAH. PROBABLY. THEY SAID THEY PROBABLY WOULD, YES.

Q: DID THEY TELL YOU WHAT THE NATURE OF THOSE QUESTIONS MIGHT BE?

A: NO.

MR. BOYCE: NOTHING FURTHER.

THE COURT: ANYTHING FURTHER?

MR. DUSEK: NO, YOUR HONOR.

THE COURT: MAY THIS WITNESS BE EXCUSED, COUNSEL?

MR. DUSEK: YES.

MR. BOYCE: YES.

THE COURT: ALL RIGHT.

THANK YOU VERY MUCH, SIR, FOR COMING IN.

PLEASE REMEMBER THAT YOU’RE STILL UNDER A COURT ORDER NOT TO DISCUSS YOUR TESTIMONY WITH ANY PERSONS UNTIL THIS MATTER IS CONCLUDED. OKAY?

THE WITNESS: YES.

THE COURT: ALL RIGHT. THANK YOU FOR COMING IN.

(THE WITNESS WAS EXCUSED.)

THE COURT: ALL RIGHT. MR. CLARKE.

MR. CLARKE: YES. THANK YOU, YOUR HONOR.

ERIN MILLER, PLEASE.

THE COURT: ALL RIGHT.

ERIN MILLER,

CALLED AS A WITNESS BY THE PLAINTIFF, HAVING BEEN DULY SWORN, TESTIFIED AS FOLLOWS:

THE CLERK: WOULD YOU PLEASE STATE YOUR NAME AND SPELL IT FOR THE RECORD.

THE WITNESS: ERIN MILLER. E-R-I-N M-I-L-L-E-R.

DIRECT EXAMINATION

BY MR. CLARKE:

Q: MA’AM, HOW ARE YOU TODAY?

A: FINE.

Q: WHO ARE YOU EMPLOYED BY?

A: Sycuan Casino.

Q: WHAT IS SYCUAN CASINO?

A: INDIAN GAMING AT SYCUAN.

Q: WHERE IS IT LOCATED?

A: AT THE — DO YOU WANT THE ADDRESS OR THE AREA? 5469 DEHESA ROAD.

Q: IN WHAT AREA OF SAN DIEGO?

A: EL CAJON.

Q: HOW LONG HAVE YOU BEEN EMPLOYED THERE?

A: SIX AND A HALF YEARS.

Q: WHAT ARE YOUR DUTIES IN YOUR EMPLOYMENT AT SYCUAN CASINO?

A: I’M THE SUPERVISOR FOR THE CLUB SYCUAN DEPARTMENT, WHICH ENROLLED CUSTOMERS INTO THE PLAYER TRACKING SYSTEM.

Q: ALL RIGHT.

I’M GOING TO HAVE YOU TALK ABOUT BOTH OF THOSE THINGS. FIRST OF ALL, I THINK YOU MENTIONED THE TERM SYCUAN CLUB OR Club Sycuan.

A: CLUB SYCUAN.

Q: CAN YOU TELL US WHAT THAT IS, PLEASE.

A: IT’S A PLAYER TRACKING CLUB. BASICALLY CUSTOMERS CAN ENROLL IN THE CLUB AND THEY CAN EARN POINTS AS THEY’RE PLAYING TO REDEEM LATER FOR MERCHANDISE OR FOOD OR DISCOUNTS ON HOTEL ROOMS AT THE RESORT.

Q: SO SORT OF LIKE THE MORE YOU PLAY THE MORE YOU CAN WIN IN TERMS OF EITHER GIFTS, EXTRA PLAY, OR WHATEVER.


A: YES. AND THERE’S CASH BACK ALSO.

Q: I THINK YOU USED THE TERM, AND I’M SORRY, IT WAS A TRACKING TERM. CAN YOU TELL US WHAT THAT IS.

A: THE SYSTEM’S PLAYER TRACKING MEANING IT TRACKS THE PLAY OF THE CUSTOMER, IF THEY’RE USING THE CARD.

Q: ALL RIGHT.

DESCRIBE FOR US HOW THIS SYSTEM WORKS AS FAR AS A CARD BEING USED.

A: THE CARD CAN BE USED IN ANY OF THE SLOT MACHINES, MEANING THAT THE CUSTOMER WOULD PUT THE CARD IN THERE AND AS THEY ARE PLAYING, THE INFORMATION OF HOW LONG THEY HAVE BEEN THERE, HOW MUCH THEY’RE PLAYING IS PUT INTO THE COMPUTER SYSTEM.

Q: LET’S ASSUME THAT I’M A PLAYER AND I’M PLAYING THE SLOT MACHINES AND I’M A MEMBER OF CLUB SYCUAN. HOW WOULD I USE THIS CARD PHYSICALLY?

A: YOU WOULD HAVE TO FIRST APPLY FOR ONE. AND THEN ONCE YOU RECEIVE THE CARD, YOU HAVE TO PUT IT INTO THE SLOT MACHINE OR GIVE IT TO A PIT BOSS IF YOU’RE PLAYING CARDS. AND THEN THERE’S A COMPUTER SYSTEM LINKED TO EACH OF THE SLOT MACHINES.

Q: SINCE YOU’VE MENTIONED TO US, LET’S GO BACK TO THE PROCESS. HOW DOES ONE APPLY AND ACTUALLY OBTAIN A SYCUAN CLUB CARD?

A: WE HAVE APPLICATIONS AT THE CASINO THAT THE CUSTOMER HAS TO FILL OUT WITH THEIR NAME, ADDRESS, AND INFORMATION. WE TAKE THE INFORMATION FROM THE CUSTOMER WITH THE VALID PICTURE I.D. AND THE CUSTOMER DOES HAVE TO SIGN THE APPLICATION.

Q: CAN A CUSTOMER OBTAIN THIS CARD, FOR INSTANCE, ON THE FIRST VISIT AND ACTUALLY USE IT THAT SAME DAY?

A: YES.

Q: HAVE YOU BROUGHT RECORDS WITH YOU TODAY RELATING TO ANY PARTICULAR MEMBERS OF CLUB SYCUAN?

A: YES, I HAVE.

Q: LET ME ASK YOU A FEW QUESTIONS FIRST.

FIRST OF ALL, ARE YOU IN YOUR ROLE AT SYCUAN CASINO SOMEONE WHO HAS APPROPRIATE OR PROPER CUSTODY OF RECORDS OF CLUB SYCUAN?

A: YES, I DO.

Q: ARE THE RECORDS THAT ARE CREATED AS FAR AS CLUB SYCUAN IS CONCERNED AND THE INDIVIDUALS WHO ARE OR ARE NOT MEMBERS, ARE THOSE KEPT IN THE REGULAR COURSE OF BUSINESS OF SYCUAN CASINO?

A: YES.

Q: WHEN THOSE — FIRST OF ALL, ARE THOSE RECORDS FILLED OUT WHEN AN INDIVIDUAL COMES IN TO SIGN UP, ARE THOSE RECORDS THAT SOMEONE AT CLUB SYCUAN, AT LEAST THE CASINO, THEN ENTERS INTO COMPANY RECORDS?

A: YES.

Q: WHEN THOSE ENTRIES ARE MADE BY THAT EMPLOYEE, IS THERE A DUTY THAT THEY BE MADE ACCURATELY?

A: YES.

Q: IN PARTICULAR, AND AGAIN I THINK YOU MENTIONED YOU DO HAVE RECORDS FOR A PARTICULAR INDIVIDUAL IN TERMS OF THAT PERSON’S MEMBERSHIP IN CLUB SYCUAN.

A: YES, I DO.

Q: WHO DO THOSE RECORDS RELATE TO?

A: DAVID WESTERFIELD.

Q: ARE YOU ABLE TO TELL US FROM THE RECORDS THAT YOU HAVE AT WHAT DAY, THAT IS, WHAT DATE, MR. WESTERFIELD APPLIED FOR MEMBERSHIP IN CLUB SYCUAN?

A: YES.

Q: ALL RIGHT.

WOULD REFERRING — FIRST OF ALL, DO YOU HAVE AN INDEPENDENT MEMORY FROM REVIEWING THOSE RECORDS WHEN HE JOINED?

A: BASICALLY, YES.

Q: ALL RIGHT. WHEN WAS THAT?

A: OCTOBER 1ST, 2001.

Q: DOES THAT MEAN THAT’S THE DAY HE SIGNED UP?

A: YES.

Q: DID HE THEN OBTAIN A CARD AS A RESULT OF BECOMING A MEMBER ON OCTOBER — I’M SORRY. WAS IT OCTOBER 1ST, 2001?

A: YES.

Q: DO THE RECORDS YOU HAVE REFLECT WHETHER OR NOT HE USED THAT CARD AT SOME POINT AFTER HIS BECOMING A MEMBER ON OCTOBER 1ST?

A: YES, HE DID.

Q: ALL RIGHT.

CAN YOU DESCRIBE THAT FOR US, PLEASE.

A: I WOULD HAVE TO REFER TO THIS.

Q: ALL RIGHT.

A: ON OCTOBER 1ST HE USED THE CARD AT 11:58 P.M. AND THEN THERE’S ALSO MACHINE NUMBER OF THE LOCATION WHERE THAT MACHINE IS LOCATED IN THE CASINO.

Q: SO YOUR RECORDS ACTUALLY CAN DESCRIBE NOT ONLY WHEN THE PERSON, THE MEMBER PLAYED, BUT ALSO WHAT PARTICULAR MACHINE THE PERSON USED?

A: YES.

Q: TO GO BACK TO MR. WESTERFIELD, IN THE APPLICATION PROCESS, DID HE PROVIDE AN ADDRESS FOR HIS RESIDENCE ON OCTOBER 1ST, 2001?

A: YES, HE DID.

Q: WHAT WAS THAT ADDRESS?

MR. BOYCE: YOUR HONOR, IF WE ARE GOING TO HAVE THE WITNESS REFER TO RECORDS, I WOULD REQUEST THEY BE MARKED.

THE COURT: IS THAT A PROBLEM, GENTLEMEN?

MR. CLARKE: NO. THAT’S FINE.

THE COURT: ALL RIGHT. THEY WILL BE DESIGNATED EXHIBIT 6 FOR IDENTIFICATION.

(RECORDS OF CLUB SYCUAN RE: DAVID WESTERFIELD

MARKED TRIAL EXHIBIT NUMBER 6 FOR IDENTIFICATION.)

MR. BOYCE: MAY I APPROACH THE WITNESS, YOUR HONOR?

THE COURT: CERTAINLY. BUT WAIT UNTIL YOU GET THE EVIDENCE TAG, THEN YOU CAN ACCOMPLISH SOMETHING BY GOING UP THERE.

MR. BOYCE: I WOULD BE HAPPY TO ACCOMMODATE MR. CLARKE.

THE COURT: ALL RIGHT.

MA’AM, ARE YOU GOING TO NEED COPIES OF THESE RECORDS TO TAKE BACK TO YOUR EMPLOYER?

THE WITNESS: NO.

THE COURT: ALL RIGHT. THANK YOU VERY MUCH.

BY MR. CLARKE:

Q: MISS MILLER, IF YOU COULD DESCRIBE, FIRST OF ALL, HOW MANY PAGES OF DOCUMENTS HAVE YOU IN YOUR HANDS AT THE MOMENT.

A: FIVE.

Q: ALL RIGHT.

MR. CLARKE: YOUR HONOR, FOR THE RECORD, I’M PLACING THE TAG, COURT’S EXHIBIT 6, IN THE LOWER RIGHT-HAND CORNER OF WHAT APPEARS TO BE THE FIRST PAGE OF THAT SERIES OF DOCUMENTS.

THE COURT: ALL RIGHT.

BY MR. CLARKE:

Q: ALL RIGHT. I BELIEVE WE LEFT OFF, MISS MILLER, WITH THE ADDRESS THAT THE INDIVIDUAL IDENTIFIED AS DAVID WESTERFIELD SUPPLIED TO BECOME A MEMBER OF CLUB SYCUAN.

A: THE ADDRESS WE HAVE IS 11995 MOUNTAIN PASS ROAD, SAN DIEGO, CALIFORNIA.

Q: VERY GOOD.

GOING BACK TO THE RECORDS OF HIS USE OF THAT PARTICULAR CARD, AND I THINK YOU SAID HE USED IT ON OCTOBER 1ST AT SOME TIME JUST BEFORE MIDNIGHT. IS THAT CORRECT?

A: CORRECT.

Q: ARE THERE ANY OTHER RECORDS DEMONSTRATING HIS USE OF THAT CARD IN ADDITION TO OCTOBER 1ST, 2001?

A: YES. OCTOBER 2ND. OF COURSE, IT ROLLED OVER BECAUSE OF THE TIME FRAME.

Q: I WAS JUST GOING TO SAY IS IT SOME TIME IN THE VERY EARLY MORNING HOURS OF OCTOBER 2ND.

A: CORRECT.

Q: ARE THERE ANY INDICATION OR IS THERE ANY INDICATION OF HIS USE OF THIS CARD AFTER THAT DATE?

A: NO.

Q: WHEN AN INDIVIDUAL PLAYS IN THE CASINO, IS THAT IN THE ROLE OF A PLAYER, REQUIRED TO UTILIZE THAT CARD?

A: NO.

Q: IN OTHER WORDS, DO YOU HAVE — IS THERE ANYTHING THAT WOULD PREVENT AN INDIVIDUAL FROM JUST COMING IN AND GAMBLING, SIMPLY NOT USING THEIR CARDS AND YOU HAVE NO RECORD OF IT?

A: THERE’S NOTHING.

Q: I’M SORRY?

A: NO. THEY CAN COME IN AND PLAY WHENEVER; THEY DON’T NEED A CARD.

Q: I WILL SHOW YOU A PHOTOGRAPH IF I COULD. IN PARTICULAR AN EXHIBIT. MISS MILLER, THAT’S BEEN LABELED COURT’S EXHIBIT 2, I WILL PUT IT ON THE BOARD IN JUST A MOMENT, WHICH HAS A PAIR OF FAIRLY LARGE PHOTOGRAPHS LABELED A AND B. DO YOU SEE THOSE PHOTOGRAPHS?

A: YES.

Q: DID YOU HAVE AN OPPORTUNITY TO LOOK AT THE UPPER PHOTOGRAPH, PHOTOGRAPH A, DURING THE RECESS A LITTLE EARLIER?

A: YES.

Q: FIRST OF ALL, CAN YOU IDENTIFY FOR US THE AREA LOCATED AT THE VERY TOP OF PHOTOGRAPH A THAT APPEARS TO BE GREEN IN COLOR.

A: THAT LOOKS LIKE THE SINGING HILLS RESORT, THE GOLF COURSE.

Q: ALL RIGHT.

DOES YOUR CASINO OWN THAT GOLF COURSE?

A: YES.

Q: CAN YOU TELL US APPROXIMATELY, AND I WOULD LIKE YOU TO USE PHOTOGRAPH A OR ANY DESCRIPTION THAT’S NECESSARY, WHERE SYCUAN CASINO IS IN RELATION TO BOTH THE GOLF COURSE AND THE ROAD DEPICTED IN PHOTOGRAPH A ON, AGAIN, COURT’S EXHIBIT 2.

A: IT’S APPROXIMATELY THREE MILES FROM THAT.

Q: WHICH DIRECTION?

A: THAT WOULD BE EAST.

Q: USING THE PHOTOGRAPH, PHOTOGRAPH A ON COURT’S EXHIBIT 2, WOULD THAT BE — WELL, WHAT DIRECTION IN THE PHOTOGRAPH, TOP, BOTTOM, LEFT, RIGHT, ET CETERA?

A: OH. BOTTOM.

Q: TO THE BOTTOM.

A: TO THE BOTTOM.

Q: AND FROM THE LOCATION WHERE, AND I’M GOING TO ACTUALLY POINT IT TO YOU, IF I CAN, FROM THE LOCATION ON PHOTOGRAPH A IN COURT’S EXHIBIT 2, WHERE, AND I’M GOING TO POINT, IF I CAN, TO AN AREA THAT APPEARS TO BE TWO TREES, OR SOMETHING THAT LOOKS LIKE TWO TREES, WITH A COUPLE OF VEHICLES IN THE CENTER OF THE PHOTO. DO YOU SEE THAT AREA?

A: YES.

Q: CAN YOU ESTIMATE FOR US THE DISTANCE FROM THAT LOCATION TO YOUR CASINO?

A: ABOUT THREE MILES.

Q: THAT WOULD BE HEADING DOWN AS FAR AS PHOTOGRAPH A IS CONCERNED, IS THAT RIGHT?

A: CORRECT.

Q: THE CASINO IS LOCATED ON DEHESA ROAD I BELIEVE YOU SAID. IS THAT CORRECT?

A: YES.

Q: IS IT LOCATED NEAR ANY OTHER MAJOR STREETS?

A: THE NEAREST CROSS-STREET WOULD BE HARBISON CANYON.

Q: ALL RIGHT.

DOES HARBISON CANYON CONNECT WITH INTERSTATE 8?

A: YES.

Q: WHERE, IF YOU CAN DESCRIBE THAT FOR US.

A: AT THE DUNBAR EXIT.

Q: IS THAT AN EXIT ON INTERSTATE 8?

A: YES.

Q: AND CAN YOU TELL US APPROXIMATELY WHAT AREA OF SAN DIEGO?

A: EAST COUNTY, LAKESIDE, ALPINE AREA.

Q: CAN YOU ESTIMATE FOR US JUST ROUGHLY THE APPROXIMATE DISTANCE FROM THE INTERSECTION OF HARBISON CANYON AND INTERSTATE 8 AND THE CASINO?

A: ABOUT ELEVEN MILES.

(DISCUSSION OFF THE RECORD BETWEEN MR. CLARKE

AND MR. DUSEK.)

THE WITNESS: I THINK SEVEN MILES.

MR. CLARKE: SORRY?

THE WITNESS: I WAS THINKING FROM MY HOME, BUT IT’S APPROXIMATELY SEVEN MILES.

BY MR. CLARKE:

Q: FROM THE CASINO TO INTERSTATE 8?

A: YES.

Q: USING HARBISON CANYON ROAD.

MR. CLARKE: ALL RIGHT. THANK YOU VERY MUCH, MA’AM.

THE COURT: ALL RIGHT.

CROSS-EXAMINATION.

MR. BOYCE: THANK YOU, YOUR HONOR.

CROSS-EXAMINATION

BY MR. BOYCE:

Q: LET ME SEE IF I UNDERSTAND. THIS CASINO CARD IS LIKE A CREDIT CARD, IS THAT RIGHT, ABOUT THE SIZE OF A CREDIT CARD?

A: YES.

Q: SOMETHING YOU CARRY IN YOUR WALLET?

A: YES.

Q: AND IT’S — YOU USE IT, YOU GET BENEFITS, IS THAT RIGHT?

A: CORRECT.

Q: SO IT’S TO YOUR BENEFIT WHEN YOU GO TO THE CASINO TO USE THE CARD?

A: YES.

Q: IT’S LIKE A VONS CARD, SORT OF.

A: I GUESS KIND OF, IN A WAY.

Q: SAME SIZE AS A VONS CARD.

A: YES.

Q: AND EVERY TIME — WHAT KIND OF BENEFITS DO YOU GET FROM USING THE CARD?

A: YOU ACCUMULATE POINTS. THOSE POINTS CAN BE USED FOR FOOD, MERCHANDISE IN OUR GIFT SHOP, EVEN CASH BACK IF YOU ACCUMULATE ENOUGH POINTS.

Q: NOW, THE CASINO IS ON DEHESA ROAD. IS THAT RIGHT?

A: YES.

Q: AND REFERRING AGAIN TO THE PHOTOGRAPH A, AND THIS IS COURT’S EXHIBIT . . .

THE COURT: I BELIEVE YOU SHOULD SEE IT. I THINK IT’S 2.

MR. BOYCE: COURT’S EXHIBIT 2.

BY MR. BOYCE:

Q: IN PHOTOGRAPH A. THE CASINO IS NOT IN THAT PICTURE, IS THAT CORRECT?

A: CORRECT.

Q: IT’S FURTHER, YOU HAVE TO FOLLOW THE ROAD FURTHER TOWARDS THE TOP OF THE PHOTOGRAPH, IS THAT RIGHT?

A: NO. TO THE BOTTOM.

Q: TO THE BOTTOM OF THE PHOTOGRAPH. YOU HAVE TO FOLLOW THE ROAD ABOUT HOW FAR FROM THE AREA THAT’S DEPICTED IN THAT PHOTOGRAPH WOULD YOU SAY?

A: ABOUT THREE MILES.

Q: AND GOING IN THE OTHER DIRECTION ON THAT ROAD, DOES THAT TAKE YOU INTO EL CAJON?

A: YES.

Q: SO IF YOU WERE COMING FROM EL CAJON, YOU WOULD FOLLOW DEHESA ROAD, YOU MAY NEVER GET ON INTERSTATE 8, IS THAT RIGHT?

A: DEPENDING ON WHERE YOU WERE COMING FROM, YEAH. YOU DON’T HAVE TO GET ON INTERSTATE 8.

Q: IF YOU ARE COMING FROM THE OTHER DIRECTION, YOU WOULD NEVER REACH THIS AREA, WOULD YOU?

MR. CLARKE: OBJECTION. VAGUE.

THE COURT: SUSTAINED.

BY MR. BOYCE:

Q: IF YOU WERE COMING FROM — YOUR CASINO IS ON DEHESA ROAD, RIGHT?

A: YES.

Q: BELOW WHERE THE PHOTOGRAPH IS DEPICTING, IS THAT RIGHT?

A: YES.

Q: THAT WOULD BE IN AN EASTERLY DIRECTION.

A: YES.

Q: SO IF YOU LIVED FURTHER EAST FROM THE CASINO THAN IS DEPICTED IN THIS PICTURE, YOU WOULD NEVER REACH THAT PHOTOGRAPH, WOULD YOU?

THE COURT: DO YOU UNDERSTAND THE QUESTION?

THE WITNESS: I’M CONFUSED.

THE COURT: NEITHER DO I.

BY MR. BOYCE:

Q: IF YOU LIVE ON THE OTHER SIDE OF THE CASINO FROM THIS PHOTOGRAPH, YOU WOULDN’T HAVE TO GO THROUGH THIS AREA, WOULD YOU?

A: NO.

(DISCUSSION OFF THE RECORD BETWEEN MR. BOYCE

AND MR. FELDMAN.)

MR. BOYCE: I HAVE NOTHING ELSE, YOUR HONOR.

THE COURT: ANYTHING FURTHER?

MR. CLARKE: NO.

THE COURT: MA’AM, I HAVE HAD A QUESTION I ALWAYS WANTED ANSWERED. WHEN YOU ISSUE ONE OF THESE CARDS, WHY DO YOU ISSUE THESE GODAWFUL ORANGE-AND-GREEN EXPANSION THINGS?

THE WITNESS: WELL, TO BE HONEST, OURS ARE BLACK.

THE COURT: OH. YOURS ARE BLACK. MORE CONSERVATIVE. OKAY. BUT I AM ASSUMING IT’S TO HANG ONTO THE CARD.

THE WITNESS: CORRECT.

THE COURT: OKAY.

ALL RIGHT. THANK YOU VERY MUCH.

IS THIS WITNESS TO BE EXCUSED?

MR. BOYCE: YES.

MR. CLARKE: YES, YOUR HONOR.

THE COURT: YOUR TIME WITH US IS DONE. COUNSEL IS GOING TO PICK THAT UP ON YOUR WAY OUT.

PLEASE REMEMBER THE ADMONITION NOT TO DISCUSS YOUR TESTIMONY WITH ANY PERSON UNTIL THIS CASE IS CONCLUDED.

MR. BOYCE: YOUR HONOR, I’M SORRY. WE DO NEED HER SUBJECT TO RECALL.

THE COURT: OKAY. YOU WILL BE SUBJECT TO RECALL. WHAT THAT BASICALLY MEANS ONE OF THE LAWYERS WILL GET IN TOUCH WITH YOU IF THEY NEED YOU BACK HERE.

THE WITNESS: ALL RIGHT.

THE COURT: ALL RIGHT. THANKS FOR COMING IN.

(THE WITNESS WAS EXCUSED.)

THE COURT: SHALL WE GET STARTED?

MR. DUSEK: OH, YES.

DEPUTY ALSTON.

LARRY ALSTON,

CALLED AS A WITNESS BY THE PLAINTIFF, HAVING BEEN DULY SWORN, TESTIFIED AS FOLLOWS:

THE CLERK: SIR, WOULD YOU PLEASE STATE YOUR NAME AND SPELL IT FOR THE RECORD.

THE WITNESS: LARRY ALSTON. A-L-S-T-O-N.

DIRECT EXAMINATION

BY MR. DUSEK:

Q: HOW ARE YOU EMPLOYED, SIR?

A: I’M A DEPUTY SHERIFF FOR THE SAN DIEGO COUNTY SHERIFF’S DEPARTMENT.

Q: HOW LONG HAVE YOU BEEN WITH THE SHERIFF’S DEPARTMENT?

A: ELEVEN YEARS.

Q: WHAT’S YOUR CURRENT ASSIGNMENT; WHERE DO YOU WORK?

A: THE LEMON GROVE STATION, PATROL DEPUTY.

Q: HOW LONG HAVE YOU BEEN OUT THERE IN LEMON GROVE?

A: FIVE AND A HALF YEARS, SIR.

Q: DEPUTY, I WOULD LIKE TO DIRECT YOUR ATTENTION BACK TO FEBRUARY 27TH OF THIS YEAR. WERE YOU ON DUTY IN THE AFTERNOON HOURS?

A: YES, I WAS.

Q: DO YOU WEAR A UNIFORM WHEN YOU’RE WORKING?

A: YES, I DO.

Q: ARE YOU IN A MARKED PATROL CAR?

A: YES.

Q: DO YOU RIDE WITH ANYBODY?

A: NO. I RIDE ALONE.

Q: DID YOU RECEIVE A RADIO CALL THAT TOOK YOU SOMEWHERE?

A: YES, I DID.

Q: ABOUT WHAT TIME DID YOU GET THE RADIO CALL?

A: I’M NOT SURE OF THE TIME, SIR.

Q: WELL, —

A: IT WAS IN THE AFTERNOON.

Q: WHAT WERE YOU DIRECTED TO DO?

A: I WAS DIRECTED TO DRIVE OUT TO THE DEHESA AREA, WILLOW GLEN, DEHESA ROAD. THE CALL READ THE SEARCH PARTY FOR THE VAN DAM SEARCH PARTY HAD DISCOVERED WHAT THEY BELIEVED TO BE THE BODY OF A SMALL CHILD.

Q: WHEN YOU GOT THAT RADIO BROADCAST, WHAT DID YOU DO?

A: I DROVE OUT TO THE SCENE.

Q: DO YOU KNOW ABOUT WHAT TIME YOU GOT OUT THERE?

A: APPROXIMATELY FIFTEEN MINUTES AFTER I RECEIVED THE CALL.

Q: ALL RIGHT.

A: IF I COULD REFER BACK TO MY REPORT, I COULD GIVE

YOU —

Q: DO YOU HAVE THAT WITH YOU?

A: YES, I DO.

Q: PULL IT OUT, THEN, AND SEE IF THAT WOULD REFRESH YOUR MEMORY.

A: OKAY.

Q: DO YOU HAVE AN IDEA NOW WHEN YOU GOT THE CALL AND WHEN YOU ARRIVED?

A: YES. I RECEIVED THE CALL AT 1440, APPROXIMATELY 2:40 P.M. AND I ARRIVED AROUND 3:00 O’CLOCK.

Q: WHERE DID YOU GO?

A: I WENT TO THE — APPROXIMATELY THE 4400 BLOCK OF DEHESA ROAD.

Q: DESCRIBE THE AREA THERE; WHAT’S OUT THERE?

A: IT’S GRASSY, DESERT-TYPE AREA. OPEN SPACE. AND THERE’S A MINE COMPANY ACROSS THE STREET. AND IT’S PRETTY DUSTY.

Q: ANY BUSINESSES OR RESIDENTIAL AREA?

A: NOT IN THAT IMMEDIATE AREA, NO.

Q: LET ME SHOW YOU WHAT’S BEEN PREVIOUSLY MARKED AS COURT’S EXHIBIT 2. THESE TWO AERIAL PHOTOGRAPHS LABELED AT THE TOP RECOVERY SITE ROMAN NUMERAL ONE. DO YOU RECOGNIZE WHAT WE HAVE DEPICTED THERE, DETECTIVE?

A: YES, I DO.

Q: PHOTOGRAPH A, WHAT IS THAT SHOWING US?

A: IT’S SHOWING DEHESA ROAD, AND IT LOOKS LIKE THE MINING COMPANY ON THE OTHER SIDE OF THE ROAD.

Q: IS THAT WHERE YOU WENT?

A: YES.

Q: WHEN YOU WENT THERE, WERE YOU THE FIRST LAW ENFORCEMENT OFFICER TO ARRIVE?

A: YES, I WAS.

Q: WHAT DID YOU SEE WHEN YOU GOT THERE?

A: I SAW FIVE SEARCHERS STANDING ON THE NORTH SIDE OF THE ROAD.

Q: WOULD THAT BE ON THE WATER SIDE OF THE ROAD OR THE HILL SIDE OF THE ROAD?

A: THAT WOULD BE ON THE HILL SIDE OF THE ROAD.

Q: WHAT DID YOU DO?

A: I APPROACHED THEM AND ASKED WHAT THEY HAD SEEN.

Q: WHAT WAS THEIR CONDITION?

A: THEY WERE SHAKEN. I BELIEVE ONE WAS CRYING. AND BLANK STARES.

Q: DID THEY CONVEY TO YOU THE INFORMATION THAT GOT YOU THERE?

A: YES, THEY DID. THEY TOLD ME THAT THEY HAD DISCOVERED WHAT THEY BELIEVED WAS THE SMALL BODY OF A CHILD.

Q: WHAT DID YOU DO?

A: I FOUND OUT WHO WERE THE PEOPLE THAT ACTUALLY FOUND HER FIRST. AND I TOLD THEM TO TAKE ME TO THE SCENE, TAKE ME THE PATH THAT THEY HAD TAKEN TO GET TO WHERE THEY HAD FOUND THE BODY SO I COULD VERIFY THAT IT WAS A BODY.

Q: DID YOU GO WITH THEM TO THAT LOCATION?

A: YES, I DID.

Q: WHERE DID YOU GO?

A: I WENT APPROXIMATELY FIFTEEN YARDS UP A SMALL EMBANKMENT TO A GRASSY AREA NEAR A TREE.

Q: WHAT DID YOU SEE?

A: I SAW A SMALL BODY. THE FIRST THING I SAW WAS I BELIEVE IT WAS THE RIGHT FOOT THAT WAS INTACT. THERE WAS FLESH ON THE FOOT FROM THE FOOT TO THE KNEE AREA. AND THEN I NOTICED THE LEFT FOOT. THE LEFT LEG WAS DOWN TO THE BONE. AND I CONTINUED LOOKING, AND I SAW THAT THE PELVIC AND TORSO AREA, I SAW BONE ALSO. AND THEN I NOTICED THE UPPER, THE CHEST CAVITY, I SAW WHAT I BELIEVED WAS FLESH ON THE BODY. AND THEN I NOTICED — I NOTICED THE NECK AND I NOTICED A SMALL BRACE — NECKLACE, CHOKER, ON THE NECK. AND I NOTICED BLONDISH BROWN HAIR. AND I NOTICED THE FACE I COULD TELL HAD HIGH CHEEKBONES. AND THAT’S ABOUT IT.

Q: COULD YOU TELL THE RACE OF THIS PERSON?

A: NO, I COULD NOT.

Q: WHY NOT?

A: WELL, I BELIEVE IT WAS A WHITE PERSON BECAUSE OF THE HAIR.

Q: HOW ABOUT BECAUSE OF THE SKIN?

A: NO, I COULDN’T TELL. THE SKIN LOOKED — IT WAS BLACK. IT LOOKED BURNED.

Q: DID YOU TOUCH THE BODY AT ALL?

A: NO, I DID NOT.

Q: LET ME SHOW YOU WHAT’S BEEN PREVIOUSLY MARKED AS COURT’S EXHIBIT 4. THIS PHOTO DISPLAY BOARD LABELED “DEHESA ROAD RECOVERY SITE.” THE PHOTOGRAPHS DOWN AT THE BOTTOM, D, E, AND F, DO THEY ACCURATELY DEPICT HOW YOU FOUND THE BODY?

A: YES, THEY DO.

Q: DID YOU DO ANYTHING WITH OR TO THE BODY?

A: NO.

Q: HOW ABOUT TO THE AREA AROUND WHERE SHE WAS?

A: NO. I JUST LOOKED FOR ANY POSSIBLE EVIDENCE. I DIDN’T TOUCH ANYTHING.

Q: DID YOU FIND ANYTHING?

A: I REMEMBER SEEING A PIECE OF WOOD WITH POSSIBLE HAIR ON IT, BUT THAT’S ABOUT IT.

Q: DID IT APPEAR THAT THE YOUNG GIRL HAD ANY CLOTHING ON HER?

A: I COULDN’T TELL.

Q: WHY NOT?

A: I DIDN’T GET TOO CLOSE TO THE BODY. I THINK THE CLOSEST I CAME WAS ABOUT EIGHT TO TWELVE FEET.

Q: HOW ABOUT THE TOP PART THAT WAS VISIBLE; COULD YOU SEE ANY CLOTHING THERE?

A: I DIDN’T RECALL.

Q: WHAT DID YOU DO ONCE YOU COMPLETED YOUR OBSERVATION OF HER?

A: I WALKED OUT OF THE SCENE THE WAY I HAD ENTERED, AND I BEGAN TO CONTAIN THE SCENE, CONTACTED PROPER —

Q: WHAT?

A: CONTAINED THE SCENE.

Q: WHAT DOES THAT MEAN?

A: IT MEANS SETTING UP ROADBLOCKS AND MAKING SURE NO ONE CAN GET INTO THE SCENE TO CONTAMINATE IT.

Q: GO AHEAD. I’M SORRY. I INTERRUPTED YOU.

A: AND I CONTACTED MY SUPERVISOR WHO CONTACTED THE PROPER INVESTIGATORS.

Q: AND DID THEN MORE LAW ENFORCEMENT ARRIVE?

A: YES, THEY DID.

Q: DO YOU RECALL WHAT AGENCIES?

A: SOME SHERIFF’S DEPUTIES AND SAN DIEGO POLICE DEPARTMENT INVESTIGATORS.

Q: ONCE THEY ARRIVED, WERE YOU INVOLVED AGAIN IN ANY WAY?

A: YES. I BRIEFED THEM ON WHAT I HAD SEEN. AND I WAS INSTRUCTED OR I WAS ASKED TO GO BACK UP TO THE SCENE WITH I DO BELIEVE IT’S LIEUTENANT COLLINS OF THE SAN DIEGO POLICE DEPARTMENT.

Q: THE TWO OF YOU WALKED BACK?

A: WE WALKED BACK IN THE SAME PATH THAT I HAD TAKEN EARLIER.

Q: WHEN YOU WENT UP THERE WITH LIEUTENANT COLLINS, DID EITHER YOU OR LIEUTENANT COLLINS TOUCH, MOVE, DISTURB THE BODY?

A: NO.

Q: HOW ABOUT THE AREA AROUND THE BODY?

A: WE WERE CAREFUL NOT TO. NO, WE DIDN’T MOVE ANYTHING.

Q: THEN WHAT?

A: I LEFT THE SCENE AGAIN AND CONTINUED MAINTAINING THE CRIME SCENE.

Q: HOW LONG DID YOU REMAIN THERE?

A: I’M NOT SURE. IT WAS A WHILE.

Q: EVENTUALLY DID THERE COME A TIME WHEN YOU LEFT?

A: YES. LATER ON, A FEW HOURS.

Q: WHY?

A: I’M SORRY?

Q: WHY DID YOU LEAVE?

A: SAN DIEGO, THE HOMICIDE INVESTIGATORS HAD TAKEN OVER THE SCENE, AND MY JOB WAS DONE THERE.

MR. DUSEK: THANK YOU, DEPUTY.

THE COURT: ALL RIGHT.

CROSS-EXAMINATION.

CROSS-EXAMINATION

BY MR. BOYCE:

Q: SO YOU WERE THERE AT THE SCENE HOW LONG?

A: I’M NOT SURE ABOUT THE TIME. APPROXIMATELY THREE OR FOUR HOURS. AROUND THREE HOURS I DO BELIEVE.

Q: WAS IT DARK WHEN YOU LEFT?

A: NO. IT WAS GETTING DARK. STARTING TO GET DARK.

Q: DURING THE TIME THAT YOU WERE AT THE SCENE, WHERE DANIELLE’S BODY WAS FOUND, YOU DIDN’T TOUCH THE BODY AT ALL, IS THAT CORRECT?

A: NO, I DIDN’T.

Q: YOU DIDN’T DISTURB THE BODY.

A: NO.


Q: AND YOU DIDN’T SEE ANYONE ELSE DISTURB THE BODY, DID YOU?

A: NO.

Q: IN FACT, YOU WERE MAKING SURE THAT NO ONE ELSE DID DISTURB THE BODY.

A: I TRIED MY BEST, YES.

Q: YOU SAY IT WAS GETTING DARK AS YOU LEFT. IS THAT RIGHT?

A: DAYLIGHT WAS FADING.

Q: THIS IS FEBRUARY, SO DAYLIGHT FADES PRETTY FAST AT THAT TIME, RIGHT?

A: I ASSUME SO.

(DISCUSSION OFF THE RECORD BETWEEN MR. BOYCE

AND MR. FELDMAN.)

MR. BOYCE: I HAVE NOTHING ELSE, YOUR HONOR.

THE COURT: ALL RIGHT.

IS THIS WITNESS TO BE EXCUSED, COUNSEL?

MR. DUSEK: YES.

MR. BOYCE: YES.

THE COURT: ALL RIGHT.

DEPUTY, THANK YOU VERY MUCH FOR COMING IN. YOU ARE FREE TO LEAVE THESE PROCEEDINGS.

YOU’RE STILL UNDER AN ORDER, HOWEVER, NOT TO DISCUSS YOUR TESTIMONY WITH ANYONE UNTIL THE MATTER IS RESOLVED. OKAY.

THE WITNESS: THANK YOU.

THE COURT: THANK YOU FOR COMING IN.

(THE WITNESS WAS EXCUSED.)

THE COURT: ALL RIGHT. LADIES AND GENTLEMEN, JUST A COUPLE REMINDERS. NUMBER ONE, PLEASE REMEMBER TO LEAVE YOUR NOTEBOOKS ON YOUR CHAIRS.

HOPEFULLY BY TOMORROW WE’LL HAVE A SECRET PHONE NUMBER FOR YOU AND ONLY YOU TO HAVE. WE STILL HAVEN’T BEEN ABLE TO ARRANGE THAT JUST YET.

GOOD THOUGHTS TOWARDS THE PADRES. MAYBE COLLECTIVELY WE CAN GET AT LEAST ONE WIN AGAINST SAN FRANCISCO.

AT ANY RATE, WE ARE GOING TO BE ABLE TO PUT IN A FULL DAY TOMORROW, SO MAKE A MENTAL NOTE WE ARE GOING TO START AT 9:00 A.M. 9:00 O’CLOCK TOMORROW.

PLEASE REMEMBER THE ADMONITION OF THE COURT NOT TO DISCUSS ANY OF THE EVIDENCE OR TESTIMONY AMONG YOURSELVES OR WITH ANY OTHER PERSONS. DON’T FORMULATE ANY IMPRESSIONS OR OPINIONS UNTIL THE MATTER IS TURNED OVER TO YOU FOR DECISION.

HAVE A SAFE AND A PLEASANT EVENING. WE WILL SEE YOU ALL AT 9:00 A.M. TOMORROW MORNING.

(THE JURY RECESSED AT 4:30 O’CLOCK, P.M.)

(THE FOLLOWING OCCURRED OUT OF THE PRESENCE OF THE

JURY:

THE COURT: ALL RIGHT. THE RECORD SHOULD REFLECT THE JURORS AND ALTERNATES HAVE LEFT THE COURTROOM.

MR. FELDMAN, WHAT TIME DO YOU SUGGEST WE GATHER TOGETHER TOMORROW MORNING?

MR. FELDMAN: YOUR HONOR, 8:45 SEEMS REASONABLE IF THAT’S NOT UNREASONABLE TO YOU.

THE COURT: ALL RIGHT.

MR. FELDMAN: BUT MAYBE I WON’T THINK OF ANYTHING OVERNIGHT, YOUR HONOR.

THE COURT: ALL RIGHT.

WE HAVE ANOTHER JUROR’S NOTE. THIS ONE READS, AND IT’S NOT NUMBERED: “I HAVE A PAGE IN MY NOTEBOOK FROM A PREVIOUS CASE.” I THINK WHAT I CAN DO IS SATISFACTORILY ASK THAT THAT JUST BE REMOVED. BUT DOES ANYBODY HAVE ANY COMMENTS?

MR. DUSEK: NO.

THE COURT: ALL RIGHT.

ALL RIGHT, COUNSEL, WE WILL SEE ALL OF YOU TOMORROW MORNING AT 8:45. HAVE A PLEASANT EVENING.

(END OF PROCEEDINGS OUT OF THE PRESENCE OF THE JURY.)

(RECESS, 4:32 O’CLOCK, P.M., TO 8:45 O’CLOCK, A.M.,

WEDNESDAY, JUNE 5, 2002.) –O0O–

04 - Day 2- June 5th 2002 - Transcript criminal trial David Westerfield
02 - Day 1- June 4th 2002 - Transcript criminal trial David Westerfield