07 – Day 2- June 5th 2002 – Transcript criminal trial David Westerfield

DAY 2 –
SAN DIEGO, CALIFORNIA, WEDNESDAY, JUNE 5, 2002, 1:30 P.M. (afternoon 2)



WITNESSES:
Peter Damon Van Dam,
Dr. Brian Blackbourne (medical examiner)

3686
1 THE COURT: THE RECORD CAN REFLECT THAT IN THE

2 WESTERFIELD MATTER ALL PARTIES ARE PRESENT, THE JURORS AND

3 ALTERNATES AND PUBLIC ARE OUTSIDE.

4 YES, MR. FELDMAN.

5 MR. FELDMAN: YOUR HONOR, THERE’S A PIECE OF IMPEACHMENT

6 THAT I WANTED TO GO TO, BUT BEFORE I WENT THERE I WANTED SOME

7 GUIDANCE AS TO HOW TO GO THERE. I THINK THIS IMPLICATES

8 POTENTIALLY INADMISSIBLE EVIDENCE, YOUR HONOR, AND SO WHATEVER

9 THE COURT WISHES WITH REGARD TO —

10 THE COURT: TURN THE CAMERAS AND MICROPHONES OFF, PLEASE.

11 THANK YOU. I APPRECIATE IT.

12 THANK YOU FOR BRINGING THAT TO OUR ATTENTION, MIKE.

13 OKAY.

14

15

16

17(PROCEEDINGS NOT PART OF THE PUBLIC RECORD.)

18

19

20

21

22

23

24

25

26

27

28
36871

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
3688
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
3689
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17 THE COURT: LET’S GET ALL INTERESTED PARTIES INSIDE.

18 (AT 3:17 P.M. THE JURY ENTERED THE COURTROOM
AND THE FOLLOWING PROCEEDINGS WERE HAD:)
19

20 THE COURT: OKAY. WELL, I HOPED TO HAVE A PADRE UPDATE

21 BUT MY RADIO WENT ON THE BRITTS, SO I CAN’T TELL YOU WHETHER

22 WE’RE WINNING OR LOSING AT THIS POINT IN TIME.

23 ALL RIGHT. MR. FELDMAN.

24 MR. FELDMAN: THANK YOU, YOUR HONOR.

25 Q. MR. VAN DAM, IS IT THE CASE THAT YOUR CHILDREN

26 WOULD PLAY OUTSIDE IN THE FRONT YARD ALL THE TIME?

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

28 THE COURT: MAKE A REFERENCE POINT, COUNSEL.
3690
1 BY MR. FELDMAN:

2 Q. DIRECTING YOUR ATTENTION TO THE EIGHT MONTHS

3 PRECEDING FEBRUARY THE 2ND — FEBRUARY THE 1ST, 2002, IS IT THE

4 CASE THAT YOUR KIDS PLAYED OUT FRONT ALL THE TIME?

5 A. I WOULDN’T SAY ALL THE TIME. I WOULD SAY ON

6 OCCASION.

7 Q. ISN’T IT TRUE YOU TOLD OFFICER FLORES AT 1750 HOURS

8 ON THE 2ND OF FEBRUARY, IT WOULD BE PAGE 12, QUOTE, “AND MY KIDS

9 ARE PLAYING OUT FRONT ALL THE TIME”?

10 MR. DUSEK: OBJECTION, TIME AS TO WHEN IT HAPPENED.

11 THE COURT: OVERRULED. YOU MAY ANSWER.

12 THE WITNESS: WE’RE ON PAGE 12? I FOUND IT. YES, I SAID

13 THAT.

14

15 BY MR. FELDMAN:

16 Q. IN FACT, IN THE NEXT MORNING WHEN YOU REALIZED YOUR

17 DAUGHTER WAS MISSING, ONE OF THE REASONS YOU WENT IN THE

18 BACKYARD WAS BECAUSE YOU WERE CONCERNED YOUR DAUGHTER HAD SLEEP

19 WALKED INTO THE BACKYARD, ISN’T THAT TRUE?

20 A. I DON’T RECALL SAYING SHE SLEEP WALKED INTO THE

21 BACKYARD. MAYBE SHE HAD GONE IN THE BACKYARD, BUT IF IT’S IN

22 HERE, TELL ME THE PAGE.

23 Q. NINE — NINTH LINE UP WHERE IT SAYS “D”. IT SAYS

24 “WELL, I FIGURED.” I’M JUST TRYING TO GET YOU TO CITE INTO IT.

25 A. I DIDN’T SAY THAT — OKAY. YES, I SAID THAT.

26 Q. AND IT IS THE CASE THAT YOUR DAUGHTER HAD SLEEP

27 WALKED ON OCCASION?

28 A. YES. AND AS I SAY, LATER IN HERE I EXPLAIN HOW THE
3691
1 ONLY TIME SHE HAD DONE IT, SHE HAD DONE THE POTTY DANCE, SLEEP

2 DANCE AROUND THE ROOM, BECAUSE SHE WON’T REALLY WAKE UP. SHE’LL

3 HAVE TO PEE, SO SHE’LL DANCE AROUND IN A CIRCLE CRYING, AND

4 WE’LL HAVE TO GET UP AND TAKE HER TO THE BATHROOM AND SIT HER

5 DOWN. SHE IS NOT ACTUALLY AWAKE, SO —

6 Q. YOU WROTE — I’M SORRY. YOU TOLD OFFICER FLORES “I

7 FIGURED SINCE THE BACK DOOR WAS OPEN, MAYBE SHE HAD SLEPT —

8 SLEEP WALKED OUT BACK.” YOU MADE THAT STATEMENT, DIDN’T YOU?

9 A. YES. AND I ALSO MADE THE STATEMENT “SHE’S DONE IT

10 A COUPLE OF TIMES.”

11 THE COURT: JUST A MINUTE, SIR.

12 MR. FELDMAN: YOUR HONOR?

13 THE COURT: YOU’RE NOT ANSWERING THE QUESTIONS. YOU’RE

14 NOT ASKING THE QUESTIONS.

15 GO AHEAD, MR. FELDMAN.

16

17 BY MR. FELDMAN:

18 Q. AND THEN THE VERY NEXT LINE IS “AND DOES SHE SLEEP

19 WALK SOMETIMES?” THAT QUESTION WAS PUT TO YOU, ISN’T THAT TRUE?

20 YOU CAN ANSWER.

21 THE WITNESS: MAY I ASK YOUR HONOR A QUESTION?

22 THE COURT: NO. YOU CAN ANSWER THE QUESTION YOU WERE

23 ASKED.

24 THE WITNESS: WHAT WAS THE QUESTION AGAIN?

25

26 BY MR. FELDMAN:

27 Q. THE QUESTION WAS, IN THE VERY NEXT LINE AFTER YOU

28 HAD SAID SHE HAD SLEPT, SLEEP WALKED OUT BACK, THE VERY NEXT
3692
1 QUESTION WAS “DOES SHE SLEEP WALK SOMETIMES?” THAT’S CORRECT,

2 ISN’T IT.

3 A. YES. MAY I READ THE NEXT FEW LINES?

4 Q. THEN YOU SAID “SHE’S DONE IT A COUPLE TIMES BUT

5 ONLY TO OUR ROOM. I DON’T THINK SHE’S EVER GONE OUTSIDE,”

6 CORRECT?

7 A. UH-HUH.

8 Q. I’M SORRY. YOU SAID UH-HUH?

9 A. YES.

10 Q. BUT THE REASON YOU WERE LOOKING IN THE BACKYARD WAS

11 ON THE THEORY THAT YOUR DAUGHTER MAY HAVE SLEEP WALKED IN THE

12 BACKYARD?

13 A. YES.

14 Q. WHEN THE 911 CALL WAS MADE BEFORE THE POLICE

15 ARRIVED, ISN’T IT TRUE YOU AND BRENDA HAD A CONVERSATION

16 CONCERNING WHAT IT WOULD BE APPROPRIATE FOR THE TWO OF YOU TO

17 TELL THE POLICE ONCE THEY ARRIVED?

18 A. I DON’T SPECIFICALLY RECALL THAT CONVERSATION.

19 Q. AND ISN’T IT TRUE THAT YOU TOLD — YOU AND YOUR

20 WIFE AGREED TO WITHHOLD FROM THE POLICE ANYTHING HAVING TO DO

21 WITH YOUR SEXUAL BEHAVIORS?

22 A. NO. I DON’T RECALL THAT.

23 Q. AND ISN’T IT FURTHER TRUE —

24 MR. DUSEK: OBJECTION TO THE FORM OF THE QUESTION.

25 MR. FELDMAN: I’LL WITHDRAW.

26 Q. DIRECTING YOUR ATTENTION, SIR, TO FEBRUARY THE 3RD,

27 2002, AT APPROXIMATELY 1:42 HOURS, AND YOUR COMMUNICATION WITH

28 DETECTIVE JODY THRASHER AND STEVE FLORES —
3693
1 A. IS THIS ON —

2 Q. TWO THREE OH TWO?

3 A. TWENTY-SIX?

4 THE COURT: TWENTY-SIX.

5 MR. FELDMAN: TWENTY-SIX.

6 THE WITNESS: PAGE?

7

8 BY MR. FELDMAN:

9 Q. PAGE — IT’S MY 13. IT MAY BE YOUR 12. I’M GOING

10 TO DIRECT YOUR ATTENTION TO A PORTION OF THE TRANSCRIPT, AND I’M

11 GOING TO ASK YOU A QUESTION IN A PARTICULAR WAY, OKAY, JUST SO

12 YOU UNDERSTAND I WANT TO DIRECT YOUR ATTENTION, COUNSEL, SO THAT

13 YOU SEE IT. IT SAYS “S. F.” AT PAGE 12 YEAH, ALL RIGHT. IT

14 STARTS THERE AND PROCEEDS — EXCUSE ME, SIR, I NEED TO TURN THE

15 PAGE, I’M SORRY — TO THE NEXT PAGE, WHICH IS 13, THE FIRST

16 QUOTATION OR THE FIRST ATTRIBUTION TO DVD, MEANING YOU.

17 IT’S TRUE, ISN’T IT, THAT YOU AND BRENDA AGREED TO

18 WITHHOLD INFORMATION FROM THE POLICE?

19 A. I DON’T SPECIFICALLY RECALL AGREEING WITH BRENDA TO

20 WITHHOLD INFORMATION FROM THE POLICE.

21 Q. NOW, I’VE SHOWN YOU THIS EXHIBIT, THOUGH, 26, AND

22 YOU SPECIFICALLY INDICATED TO THE POLICE THAT BASICALLY IT WAS

23 TIME FOR THE POLICE TO PLEASE TELL YOUR WIFE THAT YOU HAD LET

24 THE CAT OUT OF THE BAG WITH REGARD TO YOUR SEXUAL BEHAVIORS, AND

25 SO IT WAS NOW OKAY FOR HER TO DISCUSS THAT, ISN’T THAT TRUE?

26 A. THAT’S TRUE.

27 MR. DUSEK: OBJECTION, IMPROPER IMPEACHMENT. HE SAID HE

28 DIDN’T RECALL, NOT THAT IT DIDN’T HAPPEN.
3694
1 THE COURT: SUSTAINED. HE DOESN’T RECALL.

2

3 BY MR. FELDMAN:

4 Q. FOR THE LIMITED PURPOSE OF REFRESHING YOUR

5 RECOLLECTION, SIR, PLEASE READ THAT PORTION OF THE TRANSCRIPT

6 THAT I JUST CITED TO YOU?

7 A. FIRST LINE OF PAGE 13?

8 Q. THE PART THAT I JUST ARTICULATED.

9 A. IS THAT THE FIRST QUOTATION ON PAGE 13?

10 Q. IT’S ACTUALLY —

11 A. OR WE’RE STARTING AT 12?

12 Q. IT’S YOUR 12.

13 MR. DUSEK: NO FOUNDATION, YOUR HONOR.

14 THE COURT: OVERRULED.

15

16 BY MR. FELDMAN:

17 Q. ONTO THE NEXT PAGE, SIR.

18 DOES THAT REFRESH YOUR RECOLLECTION NOW AS TO

19 WHETHER OR NOT YOU ASKED THE POLICE TO TELL BRENDA AT THE

20 BEGINNING OF HER THING TO SPILL THE WHOLE THING, MEANING WITH

21 REGARD TO YOUR SEXUAL BEHAVIORS SO YOU COULD GET ON WITH THE

22 INVESTIGATION?

23 A. YES.

24 Q. SO YOU DID TELL THE POLICE THAT, DIDN’T YOU?

25 A. YES.

26 Q. NOW, DOES THAT MEAN YOU, IN FACT, DID AGREE WITH

27 BRENDA TO WITHHOLD INFORMATION FROM THE POLICE?

28 A. I DO NOT RECALL.
3695
1 Q. THESE TRANSCRIPTS THAT I’VE BEEN SHOWING YOU TODAY,

2 MR. DUSEK DIDN’T HAVE YOU REVIEW THESE TRANSCRIPTS, DID HE?

3 A. NO.

4 Q. SO YOU’VE NOT SEEN THESE TRANSCRIPTS WHICH

5 MEMORIALIZE TAPE-RECORDED COMMUNICATIONS YOU GAVE TO THE POLICE

6 ON FEBRUARY 2ND AND FEBRUARY 3RD. YOU’VE NOT SEEN THEM UNTIL

7 TODAY, IS THAT RIGHT?

8 A. CORRECT. I SAW REPORTS I BELIEVE FROM THESE

9 INTERVIEWS BUT NEVER TRANSCRIPTS FROM ANY INTERVIEWS.

10 MR. FELDMAN: NO FURTHER QUESTIONS.

11 THE COURT: ALL RIGHT. ANY REDIRECT?

12 MR. DUSEK: YES.

13

14 REDIRECT EXAMINATION +

15 BY MR. DUSEK:

16 Q. DANIELLE, DID SHE SLEEP WALK?

17 A. YES. AS I SAID BEFORE, SHE DID A POTTY DANCE IN

18 HER ROOM. I BELIEVE SHE DID THE POTTY DANCE INTO OUR ROOM ONE

19 TIME, YOU KNOW, HAVING TO GO TO THE BATHROOM AND BEING ASLEEP.

20 Q. AND IN THE TRANSCRIPT THAT MR. FELDMAN SHOWED YOU,

21 I BELIEVE WAS EXHIBIT NO. 27, ON PAGE NINE DID YOU DISCUSS HER

22 SLEEP WALKING DURING THAT INTERVIEW?

23 A. YES.

24 Q. WHAT DID YOU TELL THE OFFICERS?

25 A. SHE’S DONE IT A COUPLE OF TIMES BUT ONLY TO OUR

26 ROOM. I DON’T THINK SHE’S EVER GONE OUTSIDE.

27 Q. AND WHEN YOU TALK ABOUT WHY YOU WENT OUTSIDE TO SEE

28 IF SHE WAS SLEEP WALKING, WHAT DID YOU SAY?
3696
1 A. I SPECIFIC — WELL, MY THINKING WAS THAT THE DOOR

2 WAS OPEN. I HAD GONE THROUGH — THERE WAS NOTHING RATIONAL LEFT

3 WHERE SHE HAD GONE, SO I HAD GONE TO LOOK OUT BACK, EVEN THOUGH

4 I DIDN’T THINK THAT HAD HAPPENED, RID — I HAD GONE THROUGH

5 EVERY OTHER POSSIBILITY WHERE SHE HAD GONE.

6 Q. DID YOU CHECK THE HOT TUB?

7 A. CHECKED THE HOT TUB.

8 Q. HAD SHE EVER BEEN IN THERE BY HERSELF?

9 A. NO.

10 Q. DID YOU CHECK LOTS OF PLACES WHERE SHE HAD NEVER

11 BEEN?

12 A. LOTS OF RIDICULOUS PLACES, YES.

13 Q. WHAT WAS YOUR EMOTIONAL CONDITION AT THAT TIME,

14 SIR?

15 A. VERY UPSET.

16 Q. I THINK YOU TALKED ABOUT ONE TIME THAT YOU HAD SEX

17 WITH DENISE KEMEL IN OCTOBER OF THE YEAR 2000?

18 A. YES.

19 Q. THAT WAS AT YOUR HOUSE?

20 A. YES.

21 Q. WERE THE KIDS THERE?

22 A. THE KIDS WERE SPENDING THE NIGHT AT SOMEONE ELSE’S

23 HOUSE.

24 Q. AND WHEN YOU WERE ASKED QUESTIONS REGARDING THE

25 FIRST INTERVIEW WITH THE PATROL OFFICER, THE UNIFORM OFFICER

26 THAT SHOWED UP, DO YOU RECALL BEING ASKED QUESTIONS ABOUT THAT?

27 A. YES.

28 Q. ABOUT HOW LONG DID YOU SPEAK WITH THAT OFFICER?
3697
1 A. TWO MINUTES, THREE MINUTES. IT WAS VERY SHORT.

2 Q. AND WHAT INFORMATION WERE YOU CONVEYING TO THEM AT

3 THAT TIME?

4 A. A VERY BASIC OUTLINE. I BELIEVE IN IT I SAID THAT

5 TWO OTHER LADIES AND TWO OTHER MEN WERE OVER THE HOUSE, BUT HE

6 NEVER ASKED NAMES. IT DIDN’T SEEM IMPORTANT.

7 Q. SO YOU CONVEYED TO THAT PATROL OFFICER THE PEOPLE

8 THAT WERE IN THE HOUSE THAT NIGHT?

9 A. YES.

10 Q. AND YOU WERE SHOWN COURT EXHIBIT 26 FROM LOOKS LIKE

11 THE 3RD OF FEBRUARY, WHEN COUNSEL ASKED YOU ALL THE QUESTIONS

12 THE POLICE OFFICER PUT TO YOU TO SEE IF YOU WOULD TELL THE TRUTH

13 ABOUT THE SEX AFTER THEY TOLD YOU THEY THOUGHT IT WAS IMPORTANT,

14 DID YOU TELL ‘EM WHAT WAS GOING ON?

15 A. YES.

16 Q. DID YOU GIVE THEM THE NAMES OF THE PEOPLE THAT WERE

17 IN THE HOUSE?

18 A. YES.

19 Q. ON THE INTERVIEWS THAT YOU’VE HAD THROUGHOUT THIS

20 CASE, HAVE YOU GIVEN THE NAMES TO THE OFFICER OF THE INDIVIDUALS

21 WHO WERE IN THE HOUSE THAT NIGHT?

22 A. YES. SINCE — SINCE THE — YOU KNOW, REALIZING THE

23 MAGNITUDE OF THE SITUATION, I HAVE — I HAVE OPENED MY PRIVATE

24 LIFE UP AND GIVEN EVERY DETAIL POSSIBLE TO TRY AND GET MY

25 DAUGHTER BACK, AND NOW TO GET JUSTICE FOR HER.

26 MR DUSEK: THANK YOU, SIR. NOTHING FURTHER.

27 THE COURT: ANYTHING FURTHER, MR. FELDMAN?

28 MR. FELDMAN: JUST BRIEF, SORRY. AND I —
3698
1 RECROSS-EXAMINATION +

2 BY MR. FELDMAN:

3 Q. IT’S CORRECT, IS IT NOT, THAT YOUR DAUGHTER,

4 DANIELLE, HAS GOTTEN IN TROUBLE FOR GOING OUTSIDE THE GATE

5 BEFORE WHEN IT WAS LEFT OPEN?

6 MR. DUSEK: OBJECTION, BEYOND THE SCOPE.

7 THE COURT: WELL, YOU CAN RECALL HIM.

8 MR. FELDMAN: IT’S WITHIN THE SCOPE. I’D ASK LEAVE TO

9 REOPEN MY CROSS.

10 THE COURT: ACTUALLY, YOU DID COVER — CALM DOWN, MR.

11 FELDMAN.

12 MR. FELDMAN: YES, YOUR HONOR.

13 THE COURT: — DID COVER AN AREA. OVERRULED. YOU MAY

14 ASK THE QUESTION.

15 MR. FELDMAN: THANK YOU, YOUR HONOR.

16 Q. IT’S CORRECT, IS IT NOT, THAT YOU TOLD THE POLICE

17 THAT DANIELLE HAS GOTTEN INTO TROUBLE FOR GOING OUT THE SIDE

18 GATE BEFORE WHEN IT WAS LEFT OPEN?

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

20 THE COURT: LAY A FOUNDATION FOR IT, COUNSEL, AND I’LL

21 ALLOW IT.

22 MR. FELDMAN: YES, YOUR HONOR.

23 Q. SIR, DIRECTING YOUR ATTENTION TO YOUR COMMUNICATION

24 WITH OFFICER S. FLORES AT 4:50 IN THE AFTERNOON ON FEBRUARY THE

25 2ND, IT’S NOT IN THAT TRANSCRIPT, ISN’T IT TRUE YOU TOLD OFFICER

26 FLORES, QUOTE, “DANIELLE HAS GOTTEN INTO TROUBLE FOR GOING OUT

27 THE SIDE GATE BEFORE WHEN IT WAS LEFT OPEN”?

28 MR. DUSEK: OBJECTION, VAGUE AS TO WHEN THIS HAPPENED,
3699
1 WHETHER HE’S QUOTING FROM SOMETHING.

2 THE COURT: OVERRULED. YOU MAY ANSWER.

3 THE WITNESS: MAY I SEE THE — I DON’T RECALL

4 SPECIFICALLY. IF I CAN SEE THE — IT’S RECORDED.

5

6 BY MR. FELDMAN:

7 Q. SO, I’M SORRY, YOU DON’T REMEMBER WHETHER OR NOT

8 YOU MADE THE STATEMENT, IS THAT RIGHT?

9 A. NOT SPECIFICALLY. YOU HAVE A DOCUMENT WITH IT?

10 Q. SO THE NEXT QUESTION IS, DO YOU THINK LOOKING AT

11 THE REPORT MIGHT REFRESH YOUR RECOLLECTION?

12 A. YES.

13 Q. DISCOVERY PAGE 4642.

14 SIR, IT’S HIGHLIGHTED.

15 A. YES. YES.

16 Q. I’M SORRY.

17 YOU’VE HAD THE OPPORTUNITY NOW TO REVIEW THE

18 DOCUMENT, IS THAT RIGHT, SIR?

19 A. YES.

20 Q. AND REVIEWING THE DOCUMENT HAS REFRESHED YOUR

21 RECOLLECTION; IS THAT CORRECT?

22 A. YES.

23 Q. AND YOUR REFRESHED RECOLLECTION INDICATES THAT YOUR

24 DAUGHTER HAD GOTTEN IN TROUBLE FOR GOING OUT THE SIDE GATE

25 BEFORE WHEN IT WAS LEFT OPEN, CORRECT?

26 A. WHEN IT WAS LEFT OPEN, YES.

27 MR. FELDMAN: THANK YOU VERY MUCH. NO FURTHER.

28 THE COURT: ANYTHING FURTHER?
3700
1 REDIRECT EXAMINATION +

2 BY MR. DUSEK:

3 Q. WHEN WAS IT?

4 A. LONG AGO. IT WAS LEFT OPEN ONE TIME BEFORE THE

5 DOG, I DON’T KNOW.

6 Q. BEFORE YOU HAD THE DOG?

7 A. BEFORE WE HAD THE DOG. WE WERE VERY CAREFUL TO

8 KEEP IT CLOSED SINCE HAVING THE DOG SO SHE DOESN’T GET OUT.

9 MR. DUSEK: THANK YOU, SIR.

10 THE COURT: ALL RIGHT.

11 MR. FELDMAN: EXCUSE ME.

12

13 RECROSS-EXAMINATION +

14 BY MR. FELDMAN:

15 Q. BUT THAT GATE WAS OPEN THE MORNING THAT YOU

16 CHECKED, ISN’T THAT RIGHT?

17 A. YES, IT WAS.

18 MR. FELDMAN: NO FURTHER.

19 THE COURT: ALL RIGHT. MAY THIS WITNESS BE EXCUSED?

20 MR. FELDMAN: SUBJECT TO RECALLING.

21

22

23(PROCEEDINGS NOT PART OF THE PUBLIC RECORD.)

24

25

26

27

28
3701
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
3702
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
3703
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
3704
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22 (THE FOLLOWING PROCEEDINGS WERE HELD IN
OPEN COURT IN THE PRESENCE OF THE JURY:)
23

24 THE COURT: MR. VAN DAM, AT THIS TIME, WITHIN PARAMETERS

25 THAT I’VE SET FORTH WITH MR. DUSEK, YOU’LL BE PERMITTED TO LEAVE

26 THE COURTROOM. MR. DUSEK WILL ADVISE YOU WHEN AS A SPECTATOR

27 YOU MAY RETURN. YOU’RE FREE TO LEAVE AT THIS TIME.

28 IF YOU’LL KINDLY HAND THOSE TWO EXHIBITS TO MR.
3705
1 DUSEK ON YOUR WAY BY.

2 THE WITNESS: THANK YOU, YOUR HONOR.

3 THE COURT: ALL RIGHT. THANK YOU.

4 MR. DUSEK.

5 MR. DUSEK: DR. BRIAN BLACKBOURNE.

6

7

8 -BRIAN BLACKBOURNE, +

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

10

11 THE COURT: PLEASE HAVE A SEAT, DOCTOR.

12 THE WITNESS: THANK YOU, YOUR HONOR.

13 THE COURT: WHOSE PHOTOGRAPH IS THAT ON THAT I.D.?

14 THE WITNESS: THAT’S ME.

15 THE COURT: THAT IS YOU, HUH? OKAY.

16 THE CLERK: SIR, PLEASE STATE YOUR NAME AND SPELL IT FOR

17 THE RECORD.

18 THE WITNESS: DOCTOR BRIAN DOUGLAS BLACKBOURNE,

19 B-L-A-C-K-B-O-U-R-N-E.

20

21 DIRECT EXAMINATION+

22 BY MR. DUSEK:

23 Q. HOW ARE YOU EMPLOYED, DOCTOR?

24 A. I’M EMPLOYED BY THE COUNTY OF SAN DIEGO AS A COUNTY

25 MEDICAL EXAMINER.

26 Q. WHAT DOES THE COUNTY MEDICAL EXAMINER DO?

27 A. I SUPERVISE THE MEDICAL EXAMINER’S OFFICE, AND THE

28 FUNCTION OF THE OFFICE IS TO INVESTIGATE ANY SUDDEN, UNEXPECTED
3706
1 OR VIOLENT DEATH IN THE COUNTY, INCLUDING ALL THE HOMICIDES,

2 SUICIDES, MOTOR VEHICLE ACCIDENTS AND A LOT OF DEATHS WHICH ARE

3 SUDDEN AND UNEXPECTED.

4 Q. SO THAT MAKES YOU A MEDICAL DOCTOR?

5 A. YES.

6 Q. TELL US YOUR EDUCATIONAL BACKGROUND, WOULD YOU,

7 PLEASE?

8 A. I AM A GRADUATE OF THE UNIVERSITY OF ALBERTA IN

9 EDMINGTON, ALBERTA CANADA, 1962 WITH AN M.D. DEGREE. SERVED A

10 ROTATING INTERNSHIP AT THE VANCOUVER GENERAL HOSPITAL AT

11 VANCOUVER, BRITISH COLUMBIA, FOLLOWED BY SIX MONTHS IN TRAINING

12 AT SURGERY IN SANTA BARBARA HOSPITAL IN SANTA BARBARA,

13 CALIFORNIA.

14 AT THAT POINT I CHANGED MY AREA OF INTEREST IN

15 PATHOLOGY, SPENT THAT SAME AMOUNT OF TRAINING IN PATHOLOGY. ONE

16 YEAR OF TRAINING IN NEUROPATHOLOGY IN PHOENIX AT THE BEROL

17 (PHONETIC) NEUROLOGICAL INSTITUTE AND ONE YEAR IS A FELLOW IN

18 PATHOLOGY AT THE MEMORIAL HOSPITAL FOR CANCER AND ALLIED

19 DISEASES IN NEW YORK CITY. I’M BOARD CERTIFIED IN BOTH ANATOMIC

20 PATHOLOGY AND FORENSIC PATHOLOGY.

21 Q. WHAT DOES BOARD CERTIFIED MEAN?

22 A. WELL, AMERICAN BOARD OF PATHOLOGY SETS CERTAIN

23 QUALIFICATIONS FOR A SPECIALIST. FIRST, YOU HAVE TO DO FIVE

24 YEARS — CURRENTLY FIVE YEARS OF TRAINING IN A HOSPITAL,

25 FOLLOWED BY TAKING THE EXAMINATION, BOTH A WRITTEN AND PRACTICAL

26 EXAMINATION, AND IF YOU PASS ALL THAT YOU’RE SAID TO BE BOARD

27 CERTIFIED IN THE SUBSPECIALTY. ALL DIFFERENT SUBSPECIALTIES,

28 LIKE SURGEONS AND OBSTETRICIANS, ARE THE SAME BOARD
3707
1 CERTIFICATION PROCESS.

2 Q. WHAT’S PATHOLOGY?

3 A. PATHOLOGY IS PART OF THE LARGE FIELD OF MEDICINE

4 THAT DEALS MORE WITH THE DIAGNOSIS OF DISEASE THAN MOST

5 PHYSICIANS DO. THEY TREAT PATIENTS WITH DISEASE. MOST

6 PATHOLOGISTS WORK IN A HOSPITAL WHERE THEY EXAMINE TISSUE

7 REMOVED AT SURGERY TO MAKE A DIAGNOSIS. IT SURVIVES THE

8 LABORATORY, AND THEY PERFORM AUTOPSIES OF PERSONS WHO DIE IN THE

9 HOSPITAL OF NATURAL DISEASE.

10 Q. I THINK YOU’VE TOLD US YOU WERE BOARD CERTIFIED IN

11 TWO TYPES OF PATHOLOGY?

12 A. ANATOMIC PATHOLOGY, WHICH IS LIKE THE HOSPITAL

13 PATHOLOGY, AND FORENSIC PATHOLOGY.

14 Q. TELL US ABOUT THAT ONE.

15 A. FORENSIC PATHOLOGY IS QUITE SPECIFIC TO CORONER’S

16 OFFICE OR MEDICAL EXAMINER’S OFFICE WORK WHERE UTILIZING AUTOPSY

17 TECHNIQUES, LABORATORY, X-RAY AND INVESTIGATION FROM OUR

18 INVESTIGATORS, WE DETERMINE THE CIRCUMSTANCES AND THE CAUSE OF

19 THE PERSON’S DEATH.

20 Q. WHEN DID YOU FIRST BEGIN WORKING IN THE FIELD AS A

21 FORENSIC PATHOLOGIST?

22 A. IN JULY THE 5TH, 1967.

23 Q. WHERE DID YOU WORK UP TILL NOW?

24 A. FOR FIVE YEARS I WAS AN ASSISTANT MEDICAL EXAMINER

25 FOR METROPOLITAN DADE COUNTY, WHICH IS MIAMI, FLORIDA. THEN FOR

26 TEN AND A HALF YEARS I WAS A DEPUTY CHIEF MEDICAL EXAMINER IN

27 WASHINGTON, DC. FOR SEVEN YEARS I WAS THE CHIEF MEDICAL

28 EXAMINER FOR THE COMMONWEALTH OF MASSACHUSETTS, AND IN 1990 I
3708
1 CAME TO SAN DIEGO AS THE COUNTY MEDICAL EXAMINER.

2 Q. ARE YOU ABLE TO ESTIMATE FOR US HOW MANY AUTOPSIES

3 HAVE YOU DONE OVER THE YEARS?

4 A. AS OF ABOUT FEBRUARY IT WAS 2000 — I’M SORRY,

5 7,000 AUTOPSIES I’VE PERFORMED MYSELF.

6 Q. AND ARE YOU ABLE TO ESTIMATE ABOUT HOW MANY TIMES

7 YOU’VE COME TO COURT TO TESTIFY ABOUT THOSE AUTOPSIES?

8 A. AGAIN, MY CALCULATIONS BACK IN FEBRUARY WAS ABOUT

9 435 TIMES.

10 Q. WHERE ALL HAVE YOU TESTIFIED?

11 A. WELL, THE PLACES I’VE WORKED, MIAMI, WASHINGTON,

12 DC, MASSACHUSETTS, HERE IN CALIFORNIA IN DIFFERENT COUNTIES; LOS

13 ANGELES COUNTY, ORANGE COUNTY, IMPERIAL COUNTY, RIVERSIDE

14 COUNTY.

15 Q. DOCTOR, I’D LIKE TO DIRECT YOUR ATTENTION BACK TO

16 FEBRUARY 27TH OF THIS YEAR. WERE YOU CALLED OUT THAT EVENING?

17 A. YES.

18 Q. AND WHEN YOU GET CALLED OUT WHAT HAPPENS? WHAT DO

19 YOU DO?

20 A. WELL, EACH TIME THERE’S A HOMICIDE IN THE COUNTY

21 WHERE SOMEBODY IS DEAD AT THE SCENE, ONE OF OUR DOCTORS WHO’S ON

22 CALL, I HAPPENED TO BE ON CALL THAT NIGHT, GOES TO THE SCENE TO

23 EXAMINE THE PERSON AT THE SCENE BEFORE THE BODY’S MOVED.

24 Q. WHEN IS IT YOU GET CALLED OUT IN RELATION TO THE

25 DISCOVERY OF THE BODY?

26 A. USUALLY IT’S SEVERAL HOURS LATER. IN CURRENT

27 PRACTICE IT’S SIX TO 12 HOURS AFTER THE BODY IS FOUND. THE

28 POLICE DO THEIR PRELIMINARY INVESTIGATION AND PICK UP ALL SORTS
3709
1 OF EVIDENCE AROUND THE BODY BEFORE THEY CALL US.

2 Q. WHY ARE YOU ARRIVING LATER RATHER THAN AT THE

3 BEGINNING?

4 A. WELL, USUALLY WE WANT TO EXAMINE THE BODY AND

5 REMOVE THE BODY WHILE WE’RE THERE, SO THAT WE DON’T WANT TO STEP

6 ON OR INTERFERE WITH ANY EVIDENCE WHICH MAY BE ON THE SCENE. SO

7 THEY COLLECT ALL THAT FIRST AND THEY CALL US WHEN IT’S CLEAR TO

8 GO TO WHERE THE BODY IS.

9 Q. DID YOU GO OUT THERE WITH ANY OTHER PERSONNEL FROM

10 THE MEDICAL EXAMINER’S OFFICE?

11 A. YES. TWO OF OUR IN INVESTIGATORS, JERRY SIMMONS

12 AND JAMES RAMIREZ.

13 Q. WHAT’S AN INVESTIGATOR FOR THE MEDICAL EXAMINER’S

14 OFFICE?

15 A. THE INVESTIGATORS WORK FOR OUR OFFICE, INVESTIGATE

16 ALL THE DEATHS WHICH WE ARE INVOLVED IN. THEY WORK WITH THE

17 POLICE ON HOMICIDES AND MOTOR VEHICLE ACCIDENTS, AND ALSO POLICE

18 ARE USUALLY THERE INITIALLY ON SUICIDES. BUT MOST OF THE OTHER

19 DUTIES IS THEY ARE THE PRIMARY INVESTIGATOR, THEY GATHER THE

20 INFORMATION SO THE DOCTORS REVIEW THE CASE THE FOLLOWING

21 MORNING.

22 WE KNOW WHAT WENT ON, WHAT THE PERSON WAS DOING,

23 WHO FOUND THE PERSON, WHAT THE PERSON’S PAST MEDICAL HISTORY IS,

24 WHAT MEDICATIONS THEY ARE TAKING, ALL THOSE THINGS WHICH WE NEED

25 TO DETERMINE WHETHER WE’RE GOING TO AUTOPSY THE PERSON OR NOT.

26 Q. WHERE DID YOU GO?

27 A. 5700 DEHESA ROAD IN DEHESA. IT’S A RURAL AREA.

28 Q. ABOUT WHAT TIME DID YOU GET THERE, DOCTOR?
3710
1 A. I ARRIVED THERE AT 10:45 IN THE EVENING.

2 Q. CAN YOU DESCRIBE THE PERSONNEL THAT WERE THERE?

3 A. WELL, THERE WERE A LOT OF UNIFORMED OFFICERS FROM

4 THE SAN DIEGO POLICE DEPARTMENT AND HOMICIDE TEAM 4, SERGEANT

5 HOLMES AND THE EVIDENCE TECH — EVIDENCE TECHNICIANS AND

6 CRIMINALISTS FROM THE SAN DIEGO POLICE DEPARTMENT.

7 Q. SERGEANT HOLMES, THE INDIVIDUAL HERE IN FRONT OF

8 ME?

9 A. YES.

10 Q. WAS HE THE INDIVIDUAL IN CHARGE OF THE HOMICIDE

11 TEAM THERE THAT NIGHT?

12 A. YES.

13 Q. ONCE YOU GET THERE WHAT DO YOU DO?

14 A. WE GET BRIEFED BY THE DETECTIVE AS TO WHAT THE

15 HISTORY IS, WHAT THEY KNOW AT THAT POINT, AND IF THEY ARE READY

16 FOR US TO EXAMINE THE BODY THEN WE GO UP AND EXAMINE THE BODY.

17 Q. AND WHAT HAPPENED ON THIS OCCASION?

18 A. THAT HAPPENED ON THIS OCCASION. WE WERE BRIEFED.

19 THEN WE CLIMBED SORT OF A STEEP SIX OR EIGHT FOOT INCLINE UP TO

20 WHERE THE — WHERE THE BODY WAS UNDER A TREE IN A GRASSY AREA

21 COVERED WITH LEAVES.

22 Q. DID YOU SEE THE BODY?

23 A. YES.

24 Q. DESCRIBE WHAT YOU SAW.

25 A. WELL, THE BODY WAS OF A YOUNG WHITE FEMALE IN A

26 STATE OF MARKED DECOMPOSITION. IN ADDITION TO THE

27 DECOMPOSITION, THERE WAS EXTENSIVE ANIMAL FEEDING ON THE BODY.

28 SO A LOT OF THE TISSUE ON THE BODY WAS MISSING. AND THE FACE
3711
1 WAS INTACT, THE SKIN WAS MUMMIFIED OR JUST DRIED, BUT THE

2 FEATURES WERE STILL QUITE RECOGNIZABLE.

3 THE HAIR WAS PRESENT AND RECOGNIZABLE AS BLONDE AND

4 FAIRLY LONG. HOWEVER, FROM BELOW THE COLLAR BONE, THE ENTIRE

5 FRONT OF THE BODY, ALL THE SKIN AND THE MUSCLE, SOME OF THE

6 MUSCLE EVEN WAS MISSING BY THE ANIMALS. THE THIGHS WERE BOTH —

7 ALL THE TISSUE WAS MISSING DOWN TO THE BARE FEATURES, WHICH IS

8 THE BONE OF THE THIGH. THE RIGHT LEG BELOW THE KNEE WAS INTACT.

9 THE SKIN WAS INTACT. THE RIGHT FOOT WAS INTACT. AND ON THE

10 LEFT LEG THE FOOT WAS ACTUALLY MISSING. I BELIEVE THAT’S BY

11 ANIMAL ACTIVITY, SORT OF IRREGULAR SEPARATION FROM THE BODY

12 RIGHT JUST BELOW THE ANKLE.

13 THE LEFT ARM WHICH WAS UPWARDS LYING LIKE THIS FROM

14 THE BODY DEMONSTRATED THE FOREARM TO BE INTACT. SKIN OF THE

15 FOREARM AND THE HAND WAS INTACT. BUT THE UPPER ARM HAD A LOT OF

16 TISSUE MISSING. ON THE RIGHT ARM THE HAND WAS INTACT, BUT MOST

17 OF THE SOFT TISSUE AND MUSCLE FROM THE REMAINDER OF THE RIGHT

18 ARM WAS MISSING. ON THE BACK, BACK IN GENERAL, THE SKIN WAS

19 INTACT, BACK OF THE HEAD, BACK OF THE NECK, BACK OF THE TORSO

20 WAS INTACT, AND THE RIGHT BUTTOCK WAS INTACT AND COVERED WITH

21 SKIN. ON THE LEFT SIDE, THE BUTTOCK WAS TOTALLY ABSENT. THE

22 MUSCLE WAS GONE RIGHT DOWN TO THE BONE, AND THE LEGS WERE

23 MENTIONED BEFORE.

24 Q. WERE PHOTOGRAPHS TAKEN OF HER THERE?

25 A. YES.

26 Q. WE’VE PREVIOUSLY HAD MARKED AS COURT’S EXHIBIT 4

27 THIS PHOTO DISPLAY BOARD LABELED AT THE TOP “DEHESA ROAD

28 RECOVERY SITE.” AND I’D SPECIFICALLY LIKE TO DRAW YOUR
3712
1 ATTENTION TO THE PHOTOGRAPHS AT THE BOTTOM OF THAT BOARD,

2 PHOTOGRAPHS “D”, “E” AND “F.” IN PHOTOGRAPH “D” DO YOU SEE

3 WHERE THE BODY WAS?

4 A. YES. THE BODY IS CIRCLED THERE. IT WAS UNDER THIS

5 BIG TREE.

6 Q. AND PHOTOGRAPH “E”, DOES THAT GIVE US A CLOSER VIEW

7 OF HER?

8 A. YES, IT DOES.

9 Q. AND DOES THAT DEPICT HER HOW YOU JUST DESCRIBED?

10 A. YES, EXACTLY. ONLY THE SKIN AND SOME OF THE

11 MUSCLES FROM THE CHEST ARE GONE. THE SKIN ON THE ABDOMEN’S

12 GONE, MAJORITY OF THE SKIN OF THE LEFT LEG. BUT THE RIGHT LEG

13 THE SKIN IS INTACT. AND ON THE LEFT — THE RIGHT ARM HERE

14 TISSUE IS MISSING. BUT THIS PART, THIS IS THE HAND, LEFT HAND

15 THIS FOREARM IS INTACT AS WELL.

16 Q. DID SHE HAVE ANY JEWELRY ON?

17 A. YES, SHE DID.

18 Q. WELL, HOLD ON. BEFORE I GET THAT FAR, COULD YOU

19 TELL THE SEX OF THE BODY?

20 A. YES. THE FACIAL APPEARANCE WAS THAT OF A FEMALE.

21 Q. HOW ABOUT THE PHYSIOLOGICAL APPEARANCE, COULD YOU

22 TELL?

23 A. WELL, THE GENERAL AREA WAS PRETTY MUCH GONE.

24 ANIMAL ACTIVITY HAD TAKEN THAT AWAY.

25 Q. DID YOU SEE ANY JEWELRY ON HER?

26 A. YES.

27 Q. IS THAT DEPICTED IN PHOTOGRAPH “F” I THINK?

28 A. IT IS.
3713
1 Q. WHAT DID YOU SEE?

2 A. THERE WERE EARRINGS ON BOTH EARS. THERE WERE

3 LITTLE TWO BLUE STONES IN SORT OF A MICKEY MOUSE DESIGN. THE

4 BACKING ON THE EARRING ON THE LEFT WAS MISSING. ON THE RIGHT IT

5 WAS PRESENT. AND THERE WAS A PLASTIC NECKLACE, SORT OF

6 EXPANDABLE PLASTIC NECKLACE WAS ABOUT THE NECK.

7 Q. I ASSUMED YOU ROLLED HER OVER SO YOU COULD SEE WHAT

8 YOU DESCRIBED ON THE BACK?

9 A. YES.

10 Q. DID YOU SEE ANY CLOTHING ON THIS CHILD?

11 A. NO. THERE WAS NO CLOTHING AT ALL ON THE BODY.

12 Q. HOW ABOUT IN THE AREA? DID YOU SEE ANY CLOTHING

13 AROUND?

14 A. NO CLOTHING IN THE IMMEDIATE AREA AT ALL, NO.

15 Q. FROM WHAT YOU OBSERVED THERE WERE YOU ABLE TO

16 DETECT ANY INSECT OR ANIMAL ACTIVITY ON HER?

17 A. JUST LOOKING AT THE BODY THERE WAS NO OBVIOUS

18 INSECTS RUNNING AROUND, BUT IT WAS ON THE GROUND, SO I KNEW

19 THERE WOULD BE A LOT OF INSECTS.

20 Q. AND ANIMAL ACTIVITY, WERE YOU ABLE TO DETERMINE

21 ANYTHING AT THE SCENE REGARDING ANIMAL ACTIVITY?

22 A. WELL, JUST THE FACT THAT IT WAS PRESENT, THE MUSCLE

23 AND THE SKIN WAS ABSENT.

24 Q. WHAT DID YOU DO WITH HER ONCE YOU MADE YOUR

25 OBSERVATIONS?

26 A. WE PHOTOGRAPHED HER AND THEN MADE THE OBSERVATIONS

27 I’VE MADE, WE PLACED WHITE PAPER BAGS OVER THE HANDS, THE RIGHT

28 FOOT AND THE LOWER LEFT LEG.
3714
1 Q. WHY?

2 A. AND AROUND THE HEAD.

3 Q. WHY?

4 A. WE DO THAT ROUTINELY ON A HOMICIDE IN CASE THERE’S

5 SOME PHYSICAL EVIDENCE, A HAIR OR FIBER ON THE HAND SO THAT IN

6 TRANSPORTAION IT’S NOT DISLODGED.

7 WE PUT A WHITE PAPER BAG OVER IT AND TAPE IT JUST

8 AT THE WRIST OR WHATEVER, SO THAT IF ANYTHING DOES FALL OFF,

9 IT’S INSIDE THIS WHITE BAG AND CAN BE EASILY SEEN, AND THE BAG’S

10 THEN SENT TO THE CRIME LAB AT THE TIME AFTER THE AUTOPSY AND

11 THEY CAN EXAMINE THE BAGS.

12 Q. IS THE CRIME LAB SOMETHING AT YOUR FACILITY OR

13 SOMEWHERE ELSE?

14 A. NO. THAT’S THE SAN DIEGO POLICE DEPARTMENT.

15 Q. SO ONCE YOU HAD THE HANDS AND FOOT AND HEAD BAGGED,

16 WHAT WAS THE NEXT THING THAT YOU DID?

17 A. THE BODY WAS PLACED INSIDE A WHITE BODY BAG WITH A

18 VINYL POUCH. INSIDE THAT WAS A WHITE SHEET THAT WAS PLACED ON

19 HER. SHE WAS WRAPPED AROUND — THE SHEET WAS WRAPPED AROUND THE

20 BODY AND THE BODY BAG WAS ZIPPED UP.

21 Q. WHY DO YOU PLACE A WHITE SHEET INSIDE THE BODY BAG?

22 A. AGAIN, SO IF THERE’S ANY TRACE EVIDENCE THAT FALLS

23 OFF THE BODY, GOES ON THE SHEET, AND THE EVIDENCE TECHS TAKE

24 THIS AND THEY CAN LOOK AT THE SHEET.

25 Q. AND THE BAG’S SEALED UP?

26 A. YES.

27 Q. IS IT IDENTIFIED IN ANY SORT OF WAY?

28 A. YES. A HOMICIDE SEAL, IT’S A NON-BREAKABLE — IT A
3715
1 SEAL THAT IF YOU BREAK IT YOU CAN’T PUT IT BACK TOGETHER AGAIN,

2 WITH A NUMBER ON IT. THAT’S JUST TO MAINTAIN THE INTEGRITY OF

3 THE BODY BAG. THAT WAS PLACED AND THE BODY WAS TAKEN TO THE

4 MEDICAL EXAMINER’S OFFICE.

5 Q. BY LOOKING AT THE BODY AT THE SCENE WERE YOU ABLE

6 TO DETERMINE WHETHER OR NOT IT LOOKED LIKE ANY EFFORTS HAD BEEN

7 MADE TO BURY OR CONCEAL IT?

8 A. NO. THERE REALLY WAS NO EVIDENCE OF BURIAL AND,

9 ALTHOUGH IT WAS UNDER A TREE IN THAT AREA, WOODED AREA THERE, NO

10 ADDITIONAL EFFORTS TO CONCEAL. NOTHING WAS PILED ON TOP OF THE

11 BODY, FOR INSTANCE.

12 Q. WHAT WAS DONE AFTER SHE WAS BAGGED?

13 A. WELL, TWO OF OUR TRANSPORT PERSONNEL, D. J. BAIDEN

14 AND NORMAN BLACK WERE THERE. THEY TRANSPORTED THE BODY BACK TO

15 THE OFFICE. I WENT BACK TO THE OFFICE WITH OUR INVESTIGATORS

16 AND THEY TOOK THE BODY INTO THE OFFICE INTO A CLOSED

17 REFRIGERATOR.

18 Q. WAS AN AUTOPSY PERFORMED ON HER?

19 A. THE FOLLOWING DAY.

20 Q. ABOUT WHAT TIME DID IT START, DOCTOR?

21 A. TEN A.M.

22 Q. HOW LONG DID IT TAKE TO COMPLETE?

23 A. FOUR HOURS.

24 Q. AND THE AUTOPSY WAS PERFORMED WHERE?

25 A. IN THE SAN DIEGO COUNTY MEDICAL EXAMINER’S OFFICE.

26 IT’S ON FARNHAM JUST AS IT BECOMES CLAIREMONT MESA BOULEVARD ON

27 RUFFIN ROAD.

28 Q. ARE MEMBERS OF LAW ENFORCEMENT PRESENT WHEN THE
3716
1 AUTOPSY IS DONE?

2 A. YES.

3 Q. WHY?

4 A. TO PHOTOGRAPH AND COLLECT PHYSICAL EVIDENCE BEYOND

5 THE BODY, AND ALSO TO SEE FOR THEMSELVES WHAT THE INJURIES ARE.

6 Q. WERE PHOTOGRAPHS TAKEN OF THIS CHILD BEFORE, DURING

7 AND AFTER THE AUTOPSY?

8 A. YES.

9 Q. ARE YOU ABLE TO ESTIMATE HOW MANY PHOTOGRAPHS THEY

10 TOOK?

11 A. NO, I’M NOT. A LOT OF PHOTOGRAPHS WERE TAKEN.

12 Q. DESCRIBE FOR US HOW YOU GO ABOUT PERFORMING AN

13 AUTOPSY IN A CASE LIKE THIS.

14 A. WELL, AN AUTOPSY IS AN EXTERNAL AND INTERNAL

15 EXAMINATION OF A DECEASED PERSON TO DOCUMENT INJURIES, DOCUMENT

16 NATURAL DISEASE, DETERMINE THE CAUSE OF DEATH.

17 SO, FIRST THING WE DO IS AN EXTERNAL EXAMINATION,

18 AND WE DOCUMENT WHAT AREAS THE SKIN WAS INTACT, WHAT AREA OF THE

19 SKIN WAS MISSING. WE X-RAYED THE BODY TO MAKE SURE THERE WERE

20 NO FRACTURES. THERE WERE NO FRACTURES, NO FOREIGN MATERIAL ON

21 THE BODY. WE MEASURED THE BODY, 57 INCHES LONG, AND WEIGHED 36

22 POUNDS. WE DOCUMENTED THE JEWELRY, THE TWO EARRINGS AND THE

23 NECKLACE. AND PHOTOGRAPHS WERE TAKEN AT THAT TIME. THE MUSCLES

24 EXAMINED AND SWABS WERE TAKEN OF THE MOUTH, AND THEN WE PROCEED

25 WITH THE INTERNAL EXAMINATION.

26 Q. I’VE PLACED ON THE BOARD WHAT’S BEEN PREVIOUSLY

27 MARKED AS COURT’S EXHIBIT 7, THIS PHOTO DISPLAY BOARD LABELED

28 WAY AT THE TOP “AUTOPSY.”
3717
1 DO YOU RECOGNIZE WHAT WE HAVE DEPICTED HERE,

2 DOCTOR?

3 A. YES. THERE ARE A SERIES OF PHOTOGRAPHS OF DANIELLE

4 VAN DAM.

5 Q. WERE PHOTOGRAPHS TAKEN WHILE YOU WERE PERFORMING

6 THIS AUTOPSY?

7 A. YES. YES, THEY WERE.

8 Q. IS THERE ANOTHER DOCTOR THAT ASSISTS OR SUPERVISES

9 YOU WHEN YOU DO THIS?

10 A. WELL, DR. SWALWELL IS OUR WITNESSING PATHOLOGIST.

11 IN EACH HOMICIDE WE HAVE TWO DOCTORS ASSIGNED, AND DR. SWALWELL

12 WAS MY WITNESSING PATHOLOGIST.

13 Q. WHEN YOU DID THE PHYSICAL EXAM OF THIS CHILD, I

14 THINK YOU TOLD US HOW TALL SHE WAS?

15 A. FIFTY-SEVEN INCHES.

16 Q. AND THE WEIGHT AT THE TIME THAT YOU MEASURED HER?

17 A. THIRTY-SEVEN POUNDS.

18 Q. COULD YOU DETERMINE THE RACE OF THE INDIVIDUAL?

19 A. YES. SHE WAS WHITE.

20 Q. HOW COULD YOU TELL?

21 A. THE SKIN THAT WAS STILL PRESENT, NOT NECESSARILY

22 SHOWN IN ANY OF THESE PICTURES AND ALSO THE FACE, HAD CAUCASIAN

23 CHARACTERISTICS.

24 Q. DOCTOR, I THINK YOU SAID 57 INCHES TALL?

25 A. YES.

26 Q. DID YOU WRITE A REPORT IN THIS CASE?

27 A. YES.

28 Q. DO YOU HAVE IT WITH YOU?
3718
1 A. YES.
2 Q. WOULD YOU CHECK TO SEE IF THE LENGTH IS 57 INCHES.

3 PERHAPS IT’S PAGE FOUR?

4 A. I STAND CORRECTED. IT’S 51 INCHES.

5 Q. WHEN YOU DID THE EXTERNAL EXAM, WHAT WERE YOU

6 LOOKING FOR?

7 A. ANY SIGN OF INJURY, BRUISE, ABRASION, LACERATION,

8 TORN FINGERNAILS, LOOSE TEETH.

9 Q. HOW COULD YOU LOOK FOR BRUISES AND ABRASIONS IN

10 THIS BODY?

11 A. WELL, THAT WAS DIFFICULT BECAUSE THE BODY WAS SO

12 MUMMIFIED OR SO DRIED AND LEATHER-LIKE. BUT NOTHING THAT WE

13 COULD IDENTIFY AS ABRASION OR A BRUISE.

14 Q. THE PHOTOGRAPHS AT THE TOP OF EXHIBIT 7 PHOTOGRAPH

15 “A”, WHAT IS THAT SHOWING US UP THERE?

16 A. THAT’S JUST A SIDE VIEW OF THE BODY LATER ON THE

17 AUTOPSY TABLE.

18 Q. THE WHITE MATERIAL UNDERNEATH THE BODY, WHAT IS

19 THAT?

20 A. THAT’S A WHITE SHEET INSIDE THE WHITE BODY BAG.

21 Q. AND PHOTOGRAPHS “B” AND “C” SHOW THE HEAD OF THIS

22 CHILD?

23 A. YES.

24 Q. TELL US WHAT “D” AND “E” ARE SHOWING US?

25 A. “D” I BELIEVE THE ABDOMEN AND “E” IS THE LOWER

26 ABDOMEN WITH THE GENITAL AREA AND THE TWO FEMURS — TWO THIGH

27 BONES ON THE RIGHT HAND SIDE.

28 Q. LOOKING AT PHOTOGRAPH “D”, THE HEAD FOR THIS CHILD
3719
1 WOULD BE ON WHICH SIDE OF THE PHOTOGRAPH?

2 A. MAY I JUST APPROACH THE PHOTOGRAPH A LITTLE BIT?

3 Q. SURE. OR BRING IT DOWN IF THAT HELPS.

4 A. OKAY. I SEE IT NOW.

5 THIS IS THE FRONT OF THE CHEST, AND THE HEAD WOULD

6 BE HERE. THAT’S THE NECK. THE SKIN WAS SORT OF UP TO THERE.

7 THAT WAS THE SKIN.

8 Q. HOLD ON A MINUTE IF YOU WOULD.

9 THE HEAD IS OFF TO THE LEFT-HAND SIDE OF PHOTOGRAPH

10 “D”?

11 A. YES.

12 Q. AND THE NECK REGION IS WHAT’S BECOMES FAIRLY

13 VISIBLE ON THE LEFT SIDE OF THAT PHOTOGRAPH?

14 A. THIS IS MUMMIFIED SKIN OTHER THAN THAT, YES.

15 Q. MUMMIFIED MEANS WHAT?
16 A. DRIED.

17 Q. AND AS WE WORK OUR WAY TO THE RIGHT SIDE OF THAT

18 PHOTOGRAPH, WHAT DO WE COME TO?

19 A. THESE ARE THE RIBS. ALL THE SKIN AND MUSCLE IS

20 GONE OVER TOP OF THEM, SO YOU SEE THE BARE RIBS HERE. THIS IS A

21 LOWER COSTAL MARGIN, THE UNDERSURFACE OF THE RIBS HERE, THAT’S

22 HERE, AND ON THE RIGHT HAND SIDE IS THE ABDOMEN.

23 Q. THERE APPEAR TO BE SOME OVAL BROWN ITEMS IN THAT

24 PHOTOGRAPH.

25 A. THESE ARE LEAVES.

26 Q. LET’S MOVE OVER TO THE OTHER PHOTOGRAPH, “E.” IS

27 THAT A CONTINUATION OF LOOKING DOWN THE BODY?

28 A. YES. IN FACT, HERE IS THE LOWER RIBS RIGHT THERE.
3720
1 THIS IS THE ABDOMEN, THESE ARE THE FEMURS OF THE THIGH BONES.

2 Q. AND THE VAGINAL AREA WOULD BE WHERE?

3 A. IN THIS AREA HERE?

4 Q. BETWEEN THE TWO FEMUR BONES?

5 A. YES.

6 Q. NEXT, TWO LEVELS OF PHOTOGRAPHS, WE HAVE “F” AND

7 “G.” WHAT IS THAT SHOWING US?

8 A. THAT’S THE BACK OF THE HANDS. THE LEFT HAND ON THE

9 LEFT AND THE RIGHT HAND ON THE RIGHT.

10 Q. AND “H” AND “I” ARE SHOWING WHAT?

11 A. IS THE PALMS OF THE HAND, THE LEFT HAND ON THE LEFT

12 AND THE RIGHT HAND ON THE RIGHT.

13 Q. AND THE BOTTOM TWO PHOTOGRAPHS ARE “J” AND “K.”

14 WHAT IS THAT?

15 A. THAT’S THE SOLE OF THE RIGHT FOOT, BECAUSE THE LEFT

16 FOOT WASN’T PRESENT.

17 Q. DID YOU EXAMINE THE HAIR?

18 A. YES.

19 Q. HOW LONG WAS IT?

20 A. EIGHT INCHES.

21 Q. WHAT COLOR?

22 A. BLONDE.

23 Q. WHAT DOES DECOMPOSITION MEAN?

24 A. DECOMPOSITION IS THE DECAY OF THE BODY AFTER DEATH.

25 Q. HOW DOES IT HAPPEN?

26 A. IT STARTS OFF, OUR VERY FIRST SIGN OF DECOMPOSITION

27 USUALLY IS A GREEN DISCOLORATION OF THE RIGHT LOWER QUADRUM OF

28 THE ABDOMEN WHERE THE BACTERIA AND THE BOWEL ARE GRADUALLY BY
3721
1 DIFFUSION GETTING THROUGH UP TO THE SKIN AND CAUSING COLOR

2 CHANGE. THE BACTERIA THEN GET INTO THE BLOODSTREAM AND GO ALL

3 OVER THE BODY AND BEGIN TO CONSUME THE BLOOD AND PRODUCE GASES,

4 JUST A BIPRODUCT OF THE BACTERIA. AND SO ON THE SKIN WE SEE

5 WHAT IS CALLED OF A VENOUS MARBLING, A VENOUS PATTERN IN THE

6 SKIN WITH SOME SORT OF DISCOLORATION IN THE SKIN THAT BECOMES

7 SORT OF A DARK PURPLE BLACK COLOR. THE OUTER LAYER, EPIDERMIS

8 BEGINS TO HAVE BLISTERS ON IT AND WILL SLIP OFF. THEN WE HAVE

9 THE BLOATING. TISSUE GAS FORMATION INSIDE CAUSING THE VALUE TO

10 EXPAND, AND IF A PART OF THE BODY IS DOWNWARD AND THE BLOOD IS

11 MOST IN THAT AREA, JUST LIKE GRAVITY THE DECOMPOSITION WILL BE

12 WORSE THERE.

13 Q. DID YOU SEE ANY SIGNS OF DECOMPOSITION IN THIS

14 BODY?

15 A. YES. THE BODY DID DEMONSTRATE DECOMPOSITION AND AS

16 WELL AS THIS MUMMIFICATION.

17 Q. LET’S START WITH DECOMPOSITION.

18 WHERE DO YOU SEE IT IN THESE PHOTOGRAPHS?

19 A. WELL, IN THE AREA WHERE THE SKIN ARE, LIKE THE

20 FACE, IS DISCOLORED ON PHOTOGRAPH “B”. YOU HAVE SOME BLACK

21 DISCOLORATION OR BLACK GREEN DISCOLORATION, THE NOSE, THE LIPS

22 AND THE CHIN. THE LIPS ARE SORT OF INTERESTING BECAUSE THEY

23 HAVE HAD TISSUE GAS IN THEM AND THEY WERE SWOLLEN UP. BUT IT

24 SORT OF RESEATS AT SOME POINT AND THE SKIN BEGINS TO COLLAPSE

25 AGAIN, SO THE LIPS ARE SORT OF COLLAPSED NOW.

26 THE HANDS SHOW MORE THAN MUMMIFICATION. BUT HERE

27 ON THE PALM OF THE RIGHT HAND YOU HAVE THIS BLACK DISCOLORATION,

28 WHICH AGAIN IS DECOMPOSITION.
3722
1 Q. DID YOU EXAMINE THE BODY FOR SIGNS OF PHYSICAL

2 ACTIVITY?

3 A. YES.

4 Q. WHAT DID YOU FIND?

5 A. WELL, ALL THE TISSUE THAT WAS MISSING, I BELIEVE IT

6 WAS ANIMAL ACTIVITY. IT’S NOT PART OF THE NORMAL DECOMPOSITION

7 PROCESS FOR A TISSUE JUST TO DISAPPEAR. AND THE THINGS THAT

8 WERE TAKEN WITH THE SKIN AND THE MUSCLE WHICH, OF COURSE, THE

9 ANIMALS WOULD PREFER.

10 Q. REGARDING THE HEAD AND FACE REGION OF THIS CHILD,

11 DID YOU SEE ANY SIGNS OF ANIMAL ACTIVITY THERE?

12 A. NO. THE FACE AND THE NECK REALLY DID NOT HAVE

13 OBVIOUS ANIMAL ACTIVITY.

14 Q. WHAT WOULD YOU BE LOOKING FOR IF IT HAD IT?

15 A. WELL, TISSUE THAT’S MISSING. AND SKIN IS REALLY

16 ALL THERE. IT’S DISCOLORED AND IT’S MUMMIFIED BUT THE SKIN IS

17 STILL INTACT.

18 Q. DID YOU EXAMINE THE BODY FOR SIGNS OF INSECTS?

19 A. YES.

20 Q. IN THE HEAD REGION DID YOU SEE ANY INSECTS?

21 A. YES. THERE WERE INSECTS IN THE MOUTH, AND AS THE

22 BODY LAY ON THE TABLE, LOTS OF INSECTS WERE RUNNING ALL OVER.

23 Q. WHAT WERE THE CONDITIONS OF HER EYES?

24 A. THE EYES WERE REALLY DESTROYED. THE DECOMPOSITION

25 HAD PRETTY MUCH REALLY DESTROYED THE EYES.

26 Q. DID YOU EXAMINE THE BODY FOR ANY SIGNS OF TRAUMA ON

27 THIS BODY?

28 A. WELL, ASIDE FROM THE ANIMAL TRAUMA, WE DID NOT SEE
3723
1 PHYSICAL MECHANICAL TRAUMA. THERE WERE NO RIB FRACTURES, NO

2 SPINE FRACTURES, NO SKULL FRACTURES. THE BONES OF THE NECK WERE

3 PRESENT. THE EXTREMITIES WERE X-RAYED AND THERE’S NO FRACTURES.

4 THE MUSCLE’S ALL GONE BUT THE BONES ARE INTACT.

5 Q. AND I GUESS MAYBE BEFORE WE GO TOO MUCH FURTHER,

6 TRAUMA MEANS WHAT?

7 A. TRAUMA IS INJURY. I’M USING IT AS MECHANICAL

8 INJURY, MECHANICAL FORCE INJURY. THE FOOT, OF COURSE, WAS

9 ABSENT BUT THAT’S AS A RESULT OF ANIMAL ACTIVITY, I THINK.

10 Q. WHY?

11 A. BECAUSE THE TISSUE WAS ACTUALLY REMOVED, AND THE

12 POINT WHERE THE SEPARATION WAS WAS VERY IRREGULAR.

13 Q. WERE X-RAYS TAKEN OF THIS CHILD?

14 A. YES.

15 Q. OF WHAT AREAS?

16 A. THE HEAD, CHEST, ABDOMEN, PELVIS AND LOWER LEGS.

17 Q. AND DO YOU KNOW A DOCTOR SKIP SPERBER?

18 A. YES, I DO.

19 Q. WHO’S HE?

20 A. HE’S OUR CONSULTANT DENTIST, A FORENSIC

21 ODONTOLOGIST WHO CONSULTS WITH OUR OFFICE, ISSUES OF

22 IDENTIFICATION. ALSO BITE MARK ANALYSIS.

23 Q. WAS HE AT THE AUTOPSY?

24 A. HE CAME IN TOWARDS THE ENDS OF THE AUTOPSY, YES.

25 Q. DO YOU KNOW WHETHER OR NOT THE BODY WAS EXAMINED

26 FOR TEETH OR MISSING TEETH.

27 A. YES.

28 Q. WHAT DID YOU DETERMINE?
3724
1 A. I DETERMINED THERE WERE FOUR MISSING TEETH. THE

2 TWO INCISORS, THE LEFT, THE LATERAL INCISOR ON THE RIGHT AND

3 NEXT IS A CANINE. THOSE FOUR TEETH WERE ABSENT.

4 DOCTOR SPERBER LOCATED ONE OF THEM INSIDE THE BACK

5 OF THE MOUTH, I BELIEVE BETWEEN THE GUM AND THE TEETH. THAT WAS

6 THE LATERAL INCISOR ON THE LEFT. SO THERE’S STILL THREE MISSING

7 TEETH.

8 Q. HOW ABOUT DID YOU EXAMINE THE REST OF THE BODY TO

9 SEE IF PERHAPS ONE HAD BEEN SWALLOWED?

10 A. YES. WE EXAMINED ALL THE X-RAYS. AND ACTUALLY, WE

11 TOOK THE BAG WHERE WE WERE REMOVING ALL THE ORGANS, PUT THEM

12 BACK IN THE BODY. WE HAVE A BIG PLASTIC BAG AND WE X-RAYED THE

13 CONTENTS OF THAT AND THERE WERE NO TEETH IN THERE.

14 Q. AFTER YOU PERFORMED YOUR EXTERNAL EXAM DID YOU DO

15 AN INTERNAL EXAM?

16 A. YES.

17 Q. BRIEFLY, WHAT DO YOU DO?

18 A. WELL, EACH OF THE CAVITIES IS OPENED AND THE ORGANS

19 ARE EXAMINED. USUAL POLICY IS JUST A Y-SHAPE INCISION FROM THE

20 SHOULDERS DOWN THE MIDDLE OF THE FRONT OF THE BODY. IN THIS

21 CASE, IT WAS A LITTLE DIFFERENT BECAUSE ALL THE SKIN WAS

22 MISSING. BUT ESSENTIALLY WE OPEN THE CHEST, LOOK AT THE HEART

23 AND THE LUNGS, LOOK IN THE ABDOMEN FOR ALL THE DIFFERENT ORGANS.

24 WE GO TO THE HEAD AND WE MAKE AN INCISION ACROSS THE TOP OF THE

25 HEAD, REFLECT THE SCALP FORWARD AND BACKWARDS, MAKE A SOFT CUT

26 AROUND THE EDGE OF THE SKULL, TAKE THE SKULL OFF AND EXAMINE THE

27 BRAIN, AND WE GO UP AND EXAMINE THE ORGANS OF THE NECK.

28 Q. DID YOU DO ALL OF THAT IN THIS CASE?
3725
1 A. SOME ARE MODIFIED BECAUSE OF THE CONDITION OF THE

2 BODY BUT YES, WE DID ALL THAT.

3 Q. DID YOU DO EVERYTHING THAT YOU WERE CAPABLE OF

4 DOING WITH A BODY IN THIS CONDITION?

5 A. YES.

6 Q. WERE SAMPLES COLLECTED?

7 A. YES.

8 Q. WHAT DOES THAT MEAN?

9 A. A LOT OF DIFFERENT SAMPLES WERE COLLECTED. DAVID

10 FAULKNER, OUR ENTOMOLOGIST FROM THE NATIONAL HISTORY MUSEUM, WAS

11 THERE COLLECTING ALL THE BUGS. HE COLLECTED EVERY LITTLE BUG

12 YOU COULD FIND WITH LITTLE TWEEZERS AND PUT THEM IN BOTTLES.

13 I SAVED FLUID FROM THE CHEST CAVITY AND RECORDED

14 THE LEVEL FOR OUR TOXICOLOGY LAB. I TESTED FOR ALCOHOL, DRUGS

15 OF ABUSE, OTHER DRUGS AND POISONS. SAN DIEGO PD WAS COLLECTING

16 THINGS. I SWABBED THE MOUTH AND GAVE THEM THE SWABS. I FOUND

17 TWO STRUCTURES IN THE LOWER ABDOMEN. ONE I FELT PROBABLY WAS

18 THE RECTUM. THE OTHER ONE, I’M NOT SURE, COULD HAVE BEEN VAGINA

19 OR COULD HAVE BEEN BLADDER. WE SWABBED THOSE ORGANS AND GAVE

20 THE SWABS TO THE SAN DIEGO POLICE DEPARTMENT.

21 Q. IN A TYPICAL CASE DO YOU TRY TO TAKE URINE AND

22 BLOOD SAMPLES FROM YOUR AUTOPSY?

23 A. IN A NORMAL CASE WE DO, YES.

24 Q. WERE YOU ABLE TO DO THAT HERE?

25 A. YES. THERE WAS NO BLOOD, NO URINE.

26 Q. AFTER YOU COMPLETE YOUR EXAM YOU TYPICALLY THEN TRY

27 TO DETERMINE A CAUSE OF DEATH?

28 A. YES.
3726
1 Q. DID YOU TRY TO DO THAT HERE?

2 A. YES.

3 Q. DESCRIBE FOR US HOW YOU GO THROUGH THE PROCESS IN A

4 CASE LIKE THIS.

5 A. WE LOOK FOR NATURAL DISEASE. YOU LOOK FOR

6 INJURIES. IN THIS CASE WE HAD NO DOCUMENTED NATURAL DISEASE AND

7 WE HAD NO DOCUMENTED INJURIES. WE SENT TISSUE TO THE TOXICOLOGY

8 LABORATORY AND LOOKED FOR ALCOHOL, DRUGS AND POISONS, AND THIS

9 CAME BACK ALSO NEGATIVE. SO A YOUNG LADY IS DEAD AND WE DON’T

10 HAVE INJURIES OF NATURAL DISEASES OR TOXICOLOGIST TO EXPLAIN IT.

11 BECAUSE OF THE CONDITION OF HER BODY WASN’T SURPRISING, I WAS

12 SORT OF ANTICIPATING THAT. THAT WAS WHERE WE ENDED.

13 Q. REGARDING CAUSES OF DEATH, WERE YOU ABLE TO RULE

14 OUT CERTAIN POSSIBILITIES?

15 A. YES. I FEEL WE DID RULE OUT A NUMBER OF THINGS.

16 Q. DID YOU TRY TO DETERMINE WHETHER SHE WAS THE VICTIM

17 OF A GUN SHOT.

18 A. YES, WE DID. THERE WAS NO PENETRATING WOUNDS OF

19 THE HEAD, THE NECK OR THE CHEST. NOW, THE ABDOMEN DID HAVE SOME

20 ANIMAL ACTIVITY WHICH HAD REMOVED SOME OF THE ORGANS, THE

21 SPLEEN, THE PANCREAS, STOMACH, ADRENAL GLAND, ONE KIDNEY AND A

22 THIRD OF THE OTHER KIDNEY WERE ALL ABSENT AS A RESULT, I

23 BELIEVE, OF ANIMAL ACTIVITY, AND ASIDE FROM THAT, THERE’S NO

24 X-RAY OF ANY BULLETS OR ANYTHING IN THE ABDOMEN. BUT I FEEL WE

25 PRETTY MUCH EXCLUDED BOTH PENETRATING STAB WOUNDS AND GUNSHOT

26 WOUNDS.

27 Q. YOU MEAN BY KNIFE OR ANY OTHER INSTRUMENT?

28 A. YES.
3727
1 Q. DID YOU ATTEMPT TO DETERMINE WHETHER OR NOT SHE

2 DIED FROM BLUNT FORCE TRAUMA OR ANY TYPE OF TRAUMA?

3 A. YES. THE HEAD WAS EXAMINED. THE SKULL HAS NO

4 FRACTURES, DID NOT DEMONSTRATE ANY LACERATIONS OF THE SCALP.

5 SKIN OF THE NECK WAS INTACT. THE MUSCLES WERE REMARKABLY WELL

6 PRESERVED IN THE FRONT OF THE NECK, AND THE BONES OF THE LARYNX,

7 THE VOICE BOX, WERE PRESENT.

8 IN A SEVEN-YEAR-OLD THEIR CARTILAGE DO NOT FUSE, SO

9 THE HYOID BONE IS IN THREE SEPARATE LITTLE PIECES, BUT IT WAS

10 ALL THERE, AND THERE WAS NO TRAUMA THERE. THE RIBS HAD NO

11 FRACTURES, AND THERE WAS NO BLEEDING INTO THE CHEST. THERE WERE

12 NO WOUNDS ON BOTH SIDES OF THE CHEST, AS I MENTIONED. THE

13 ABDOMEN IS A LITTLE MORE DIFFICULT BECAUSE OF THE ANIMAL

14 ACTIVITY, BUT THE LIVER WAS INTACT EXCEPT FOR THE PORTION THE

15 ANIMALS HAD TAKEN, AND THE OTHER ORGANS DID NOT HAVE OBVIOUS

16 BLUNT TRAUMA INJURY.

17 Q. WERE YOU ABLE TO RULE OUT BLUNT FORCE TRAUMA?

18 A. WIN THE LIMITATION OF OUR EXAMINATION, YES.

19 Q. DID YOU ATTEMPT TO DETERMINE WHETHER OR NOT SHE HAD

20 BEEN A STRANGULATION VICTIM?

21 A. YES. IN REGARD TO THE NECK MUSCLES, I EXAMINED THE

22 SKIN. UNDER THE SKIN THERE WAS NO HEMORRHAGE. THE LARGE

23 MUSCLES OF THE STERNUM COLLATERAL MASTOID MUSCLES RUN DOWN THE

24 SIDE OF YOUR NECK, AND THE OPENING IN THE FRONT NO HEMORRHAGE IN

25 THEM. NORMALLY WE SEE INJURY IN THERE BY THE LARYNX.

26 Q. WHAT DO YOU MEAN BY STRANGULATION?

27 A. IS A PHENOMENON WHERE SOMEONE COMPRESSES SOMEONE

28 ELSE’S NECK, EITHER MANUALLY BY HANDS AROUND THE NECK OR BY
3728
1 LIGATURE, ROPE OR SOMETHING ELSE TRIED AROUND THE NECK. SO

2 THERE’S MANUAL STRANGULATION AND LIGATURE STRANGULATION. BOTH

3 OF WHICH WOULD LEAVE SOME MARKS ON THE SKIN, HEMORRHAGES IN THE

4 NECK. AND IN AN OLDER PERSON, INJURIES TO THE LARYNX. IN A

5 SEVEN-YEAR-OLD YOU MAY NOT FIND ANY BONY INJURIES BECAUSE,

6 AGAIN, THE STRUCTURES ARE CARTILAGINOUS, THEY’RE GRISTLE.

7 Q. WAS HER NECK IN GOOD ENOUGH CONDITION TO MAKE THOSE

8 DETERMINATIONS?

9 A. REALLY IT WAS. I MEAN, THE MUSCLES WERE REMARKABLY

10 GOOD. THE LARYNX WAS NOT. IT WAS SORT OF DECOMPOSING AND THE

11 SKIN WAS MUMMIFIED. BUT AGAIN, I THINK IT WAS — WITHIN OUR

12 EXAMINATION, I’M FAIRLY CONFIDENT IT WAS NOT STRANGULATION.

13 Q. DID YOU TRY TO DETERMINE WHETHER SHE WAS A VICTIM

14 OF A DISEASE OR ILLNESS?

15 A. YES. WE LOOKED AT ALL THE ORGANS WHICH WERE THERE,

16 ESPECIALLY THE HEART, BECAUSE PEOPLE DO HAVE HEART DISEASE EVEN

17 AT AGE SEVEN. THE LUNGS WHICH HAD INCREASED WEIGHT, A LITTLE

18 CONGESTION AND PULMONARY EDEMA IN THERE, BUT IT WAS NORMAL. NO

19 CAUSE OF DEATH — NO PNEUMONIA, NO OBVIOUS CAUSE OF DEATH. THE

20 LIVER THAT WAS THERE, MAJORITY OF WHICH WAS THERE, LOOKED

21 NORMAL. THERE WAS SOME DIFFICULTY BECAUSE SOME OF THE ORGANS

22 WERE MISSING.

23 Q. WERE YOU ABLE TO ELIMINATE DISEASE TO BE THE CAUSE

24 OF DEATH?

25 A. YES. THE BRAIN WAS THERE BUT IT WAS NORMAL.

26 Q. HOW ABOUT POISON, DID YOU CHECK FOR THAT?

27 A. WE CHECKED ALCOHOL, DRUG ABUSE, REGULAR

28 PRESCRIPTION MEDICATIONS, AND NOTHING WAS FOUND.
3729
1 Q. ALL RIGHT.

2 WHAT IS SUFFOCATION?

3 A. SUFFOCATION IS A FORM OF ASPHYXIA, AND IT MEANS

4 PREVENTING THE PERSON FROM GETTING AIR TO BREATHE WITH.

5 COMMONLY PERFORMED EITHER BY HANDS OVER THE NOSE OR MOUTH OR A

6 PILLOW OR PUTTING THE PERSON’S FACE DOWN INTO A BED, FOR

7 INSTANCE. SOME WAY THAT A PERSON CAN’T BREATHE BECAUSE THE

8 AIRWAY’S OBSTRUCTED.

9 Q. HOW LONG DOES THAT MANNER OF DEATH TAKE?

10 A. IN ORDER TO FATALLY SUFFOCATE SOMEONE IT TAKES

11 ABOUT THREE TO FIVE MINUTES. THE REASON IS IF YOU STOP TOO

12 EARLY, THE PERSON’S GOING TO WAKE UP. AND SO IT TAKES THREE OR

13 FIVE MINUTES BEFORE THE BRAIN IS DAMAGED SO MUCH THAT THEY WON’T

14 WAKE UP.

15 Q. AND WHEN YOU HAVE SOMEONE WHO HAS BEEN RECENTLY

16 KILLED, DIED FROM SUFFOCATION, WOULD YOU EXPECT TO SEE SIGNS OF

17 THAT MANNER OF DEATH?

18 A. YOU MAY OR MAY NOT. DEPENDS HOW MUCH THE

19 INDIVIDUAL IS STRUGGLING, FIGHTING BACK.

20 NORMALLY, YOU KNOW, SEVERAL LIFE THREATENING

21 CONDITIONS YOU FIGHT AS HARD AS YOU CAN, AND EVEN JUST MOVING

22 YOUR FACE TRYING TO GET AIR, YOU CAN CAUSE THOSE ABRASIONS ON

23 THE FACE. THEORETICALLY THE NOSE COULD BE BROKEN. OFTEN IT’S

24 NOT. BUT THERE CAN BE INJURIES THE PERSON SORT OF INFLICTS ON

25 THEMSELVES TRYING TO FIGHT AGAINST THE ATTACKER. OF COURSE, IF

26 SOMEONE WAS REAL STRONG, OR HIGH ON ALCOHOL OR SOMETHING, AND

27 WAS NOT FIGHTING BACK, SUFFOCATION CAN BE PERFORMED WITH VERY

28 LITTLE INDIVIDUAL FINDINGS.
3730
1 Q. IF THE INDIVIDUAL WERE ABLE TO KEEP STILL SO THERE

2 WOULD BE NO FRICTION BETWEEN THE FACE AND WHATEVER IT WAS TO BE

3 USED TO SUFFOCATE THE INDIVIDUAL, WOULD YOU EXPECT TO SEE ANY

4 BRUISING OR MARKS AT ALL?

5 Q. WELL, IT WOULD NOT BE THE FRICTION THAT I MENTIONED

6 BEFORE. YOU HAVE TO CONSIDER THE PRESSURE. IF THE PRESSURE’S

7 TOO MUCH, YOU MAY GET BRUISES. BUT IF AN INDIVIDUAL IS GOING TO

8 HOLD STILL, THEY MAY NOT CAUSE EITHER THE BRUISING OR THE

9 FRICTION, EXHAUSTING THE ABRASIONS.

10 Q. DID YOU CONSIDER SUFFOCATION AS A POSSIBLE CAUSE OF

11 DEATH IN THIS CASE?

12 A. YES.

13 Q. WHAT DID YOU LOOK AT OR TRY TO FIND?

14 A. WELL, IF I — THERE REALLY ARE NO FINDINGS. WE

15 LOOKED AT THE NOSE AND THE MOUTH AND THEY WERE CERTAINLY

16 MUMMIFIED. THERE IS NO SUGGESTION OF ANYTHING THERE. SO THERE

17 ARE NO REAL POSITIVE FINDINGS TO MAKE THAT DETERMINATION.

18 Q. WERE YOU ABLE TO RULE OUT SUFFOCATION AS A CAUSE OF

19 DEATH?

20 A. NO. I WAS UNABLE TO RULE IT OUT.

21 Q. WHY NOT?

22 A. I — AGAIN, THERE’S NO POSITIVE FINDINGS ONE WAY OR

23 THE OTHER. YOU MAY NOT HAVE ANY POSITIVE FINDINGS, SO IT’S HARD

24 TO RULE IT OUT.

25 Q. AS PART OF YOUR WORK DO YOU TRY TO DETERMINE A

26 CAUSE OF DEATH IF POSSIBLE?

27 A. YES.

28 Q. HOW DO YOU TRY TO DO THAT?
3731
1 A. WELL, AS I MENTIONED EARLIER, THE HISTORY, THE

2 AUTOPSY EXAMINATION, VARIOUS INJURIES, NATURAL DISEASE OR

3 TOXICOLOGY FOR POISONS.

4 Q. HOW CONFIDENT CAN YOU BE WHEN YOU TRY TO DETERMINE

5 CAUSE OF DEATH?

6 A. WELL, THE VAST MAJORITY OF TIMES WE’RE ABLE TO FIND

7 A FAIRLY DEFINITIVE CAUSE OF DEATH; A MOTORCYCLE ACCIDENT OR

8 GUNSHOT WOUND OR SUICIDAL INGESTION OF MEDICATION. WE CAN BE

9 CERTAIN THAT’S WHAT THE CAUSE OF DEATH IS. HEART ATTACK, A

10 MYOCARDIAL INFARCTION IN THE HEART, I’M QUITE CERTAIN IF A MAN

11 GRABS HIS CHEST AND COLLAPSES.

12 I’M FAIRLY CERTAIN THAT CAUSE OF DEATH IS A NATURAL

13 DISEASE IF SOMEONE HAS CANCER AND THERE IS CANCER ALL OVER THE

14 BODY AND THEY’RE FOUND DEAD. THERE ARE A FEW CASES WHERE WE ARE

15 UNCERTAIN AND EVERYTHING WE DO, THE AUTOPSY, THE HISTORY, THE

16 TOXICOLOGY, EX-RAYS, GOING BACK AND TALKING TO HIS DOCTOR,

17 TALKING TO HIS FAMILY, WE DON’T FIND ANYTHING. WHAT WE HAVE TO

18 DO IN THESE CASES IS SAY HONESTLY WE DON’T KNOW. IT’S AN

19 UNDETERMINED CAUSE OF DEATH.

20 Q. HOW DEFINITIVE CAN YOU BE ON A TIME OF DEATH OR

21 DOES IT DEPEND?

22 A. THE DETERMINATION OF TIME OF DEATH IS ALWAYS AN

23 ESTIMATE, NEVER EXACT. REMEMBER WHAT QUINCY SAYS, IT’S NOT

24 EXACT.

25 THE CLOSER WE ARE WHEN WE EXAMINE THE BODY TO THE

26 ACTUAL TIME OF DEATH, THE MORE ACCURATE WE CAN BE. THE RANGE

27 GETS WIDER AND WIDER AS WE GO FURTHER. SO, FOR EXAMPLE, I HAD A

28 CASE WHERE I WAS CALLED RIGHT AWAY ON A POSSIBLE HOMICIDE AND I
3732
1 WAS ABLE TO SAY TWO TO FOUR HOURS, BUT THAT’S AN EXCEPTION.

2 USUALLY WE DON’T GET TO THE BODY THAT FAST FOR A LOT OF

3 DIFFERENT REASONS.

4 Q. ARE YOU FAMILIAR WITH THE TERM RIGOR MORTIS?

5 A. YES.

6 Q. WHAT DOES THAT MEAN?

7 A. RIGOR MORTIS IS A POSTMORTEM PHENOMENON, DOES NOT

8 OCCUR DURING LIFE, WHEN THE CIRCULATION STOPS, THE MUSCLES

9 CONTINUE TO METABOLIZE, LIVE, BREATHE AND PRODUCE GASES AND

10 EXTRA BI-PRODUCTS. AFTER A PERIOD OF TIME THE MUSCLE TISSUE

11 GOES RIGID BECAUSE ALL OF THESE METABOLITES ARE NOT BEING WASHED

12 AWAY WITH THE CIRCULATION. SO AFTER ABOUT FOUR TO SIX HOURS THE

13 SMALL MUSCLES BECOME RIGID AND BY SIX TO EIGHT HOURS ALL THE

14 MUSCLES ARE PRETTY RIGID. WE TALK ABOUT FULL RIGOR MORTIS IN

15 SIX TO EIGHT HOURS AND IT STAYS — IT STAYS ON A PLATEAU TO

16 ABOUT EIGHT HOURS.

17 AT THE BEGINNING OF DECOMPOSITION FIRMNESS GOES

18 AWAY, THE BODY IS AGAIN SORT OF FLACCID. THE RIGOR IS SO MILD

19 THAT IT IS EASILY OVERCOME. YOU CAN JUST TAKE THE ARM AND

20 STRAIGHTEN IT OUT. SO IT’S A SMALL 24-HOUR CYCLE WITH A ROOM

21 TEMPERATURE AT 72 DEGREES.

22 NOW, IF YOU CAN MAKE IT HOTTER YOU GO THROUGH THE

23 WHOLE THING IN SIX HOURS, OR SOMEONE’S IN RAMONA IN JANUARY, AND

24 IT’S REAL COLD, RIGOR MORTIS CAN LAST FOR DAYS.

25 Q. IS RIGOR MORTIS ONE WAY YOU CAN USE TO DETERMINE

26 THE TIME OF DEATH?

27 A. IT IS ONE OF THE METHODS WE USE, AND IT’S REALLY

28 THE MOST HELPFUL METHOD OF DETERMINING AN ESTIMATE OF TIME OF
3733
1 DEATH. IT WAS NOT USEFUL IN THIS CASE BECAUSE THE BODY HAD

2 ALREADY GONE THROUGH THAT. SO IT WAS PAST THAT STAGE. IT WAS

3 NO LONGER HELPFUL TO US.

4 Q. LIVIDITY, ARE YOU FAMILIAR WITH THAT TERM?

5 A. YES.

6 Q. BRIEFLY CAN YOU TELL US WHAT LIVIDITY MEANS?

7 A. LIVIDITY IS A POSTMORTEM PHENOMENON, ALSO DOES NOT

8 OCCUR DURING LIFE. AND SIMPLY AS A RESULT OF GRAVITY, THE BLOOD

9 IN THE CIRCULATION, WHEN THE HEART STOPS, JUST BY GRAVITY GOES

10 TO THE DEPENDENT AREAS, WHATEVER IS DOWNWARD. IF THE BODY’S

11 LYING IN BED ON THEIR BACK, RIGOR MORTIS WILL BE IN THE BACK AND

12 THE LOWER PARTS OF THE SIDES. IF A PERSON IS LYING ON A BED,

13 RIGOR WILL BE IN THE LEGS BECAUSE IT GOES DOWNWARDS, WHICH IS

14 HARD FOR US, SOMEONE THAT IS FACE DOWN, THEIR HEAD OFF THE BED,

15 ALTHOUGH LIVIDITY GOES TO THE HEAD, NOT BAD BECAUSE WHEN THE

16 DECOMPOSITION STARTS, THE DECOMPOSITION STARTS WHERE THE BLOOD

17 IS. SO LIVIDITY STARTS IMMEDIATELY AFTER DEATH, BUT IT’S NOT

18 READILY APPARENT FOR A COUPLE OF HOURS. THEN AFTER ABOUT EIGHT

19 HOURS THE LIVIDITY BECOMES FIXED. IT’S STUCK IN THAT POSITION.

20 AND THEN IF THE BODY IS SUBSEQUENTLY MOVED INTO A NEW POSITION,

21 INSTEAD OF LYING ON ITS BACK IT’S LYING ON THE FRONT, SOME OF

22 THE BLOOD IS STILL FLUID, IT WILL GO TO THE NEW POSITION. THEY

23 USE THAT IN DETECTIVES STORIES ABOUT A BODY BEING MOVED FROM ONE

24 POSITION TO ANOTHER POSITION OVER TIME, BUT IT’S NOT A GREAT

25 DEAL OF HELP TO US NORMALLY. BUT THE FIXED LIVIDITY IS ABOUT

26 SIX TO EIGHT HOURS. SOMETIMES THAT HELPS US.

27 Q. THAT IS AT LEAST ONE WAY OF TRYING TO DETERMINE A

28 TIME OF DEATH?
3734
1 A. YES.

2 Q. WAS IT USEFUL IN THIS CASE?

3 A. NO, IT WASN’T. I DID NOT SEE ANY LIVIDITY AT ALL.

4 MR. DUSEK: NOW’S AS GOOD A TIME AS ANY. I DON’T THINK

5 WE ARE GOING TO GET THROUGH WITH HIM.

6 THE COURT: IT DOESN’T APPEAR WE CAN.

7 DOCTOR, CAN YOU BE BACK TOMORROW MORNING AT 9

8 O’CLOCK?

9 THE WITNESS: YES, SIR.

10 THE COURT: ALL RIGHT. THANK YOU VERY MUCH.

11 ALL RIGHT. LADIES AND GENTLEMEN, WE ARE GOING TO

12 RECESS FOR THE EVENING. LOOKS LIKE WE’LL BE ABLE TO GET ANOTHER

13 FULL DAY IN TOMORROW, SO I’D LIKE ALL OF YOU HERE AT 9 O’CLOCK.

14 PLEASE REMEMBER THE ADMONITION OF THE COURT NOT TO

15 DISCUSS ANY OF THE EVIDENCE OR TESTIMONY AMONG YOURSELVES OR

16 WITH ANY OTHER PERSONS. DO NOT DISCUSS THE CASE UNTIL IT IS

17 SUBMITTED TO YOU FOR DECISION.

18 HAVE A SAFE AND A PLEASANT EVENING. WE’LL SEE ALL

19 OF YOU OUTSIDE THE DOOR AT 9:00 A.M. TOMORROW MORNING. NINE

20 O’CLOCK, INCLUDING YOU, DOCTOR.

21 THE WITNESS: YES, YOUR HONOR.

22 (AT 4:28 P.M. THE JURY WAS EXCUSED
AND THE FOLLOWING PROCEEDINGS WERE HAD:)
23

24 THE COURT: THE RECORD SHOULD REFLECT THE JURORS AND

25 ALTERNATES HAVE LEFT THE COURTROOM.

26 MR. DUSEK, NEITHER MY CLERK NOR I HAVE HAD

27 IDENTIFIED FOR THE RECORD EXHIBIT 15.

28 MR. DUSEK: LET ME FIND IT.
3735
1 THE COURT: OKAY.

2 (MARKED FOR ID: = TRIAL EX. 15, DIAGRAM OF VAN DAM HOME)

3 MR. DUSEK: THAT WILL BE IDENTIFIED THROUGH BRENDA VAN

4 DAM. I BASICALLY FORGOT.

5 THE COURT: THAT’S FINE. I JUST WANTED TO MAKE SURE THAT

6 WE WEREN’T MISSING THINGS.

7 ALL RIGHT. COUNSEL?

8 MR. FELDMAN: YES, YOUR HONOR.

9 THE COURT: I’M GOING TO NEED YOU HERE AT 8:30 TOMORROW

10 MORNING. I’VE BEEN NOTIFIED OF ANOTHER POTENTIAL JUROR PROBLEM

11 THAT WE’RE GOING TO NEED TO DISCUSS BASICALLY PRIVATELY.

12 MR. FELDMAN: YES, YOUR HONOR.

13 THE COURT: ALL RIGHT.

14 MR. FELDMAN: 8:30?

15 THE COURT: 8:30.

16 MR. FELDMAN: YES, YOUR HONOR.

17 THE COURT: WE’LL BE IN RECESS UNTIL 8:30 TOMORROW

18 MORNING.

19

20

21 (AT 4:30 P.M. AN ADJOURNMENT WAS TAKEN
UNTIL 8:30 A.M. THURSDAY, JUNE 6, 2002.)
22
–O0O–
23

24

08 - Day 3- June 6th 2002 - Transcript criminal trial David Westerfield
06 - Day 2- June 5th 2002 - Transcript criminal trial David Westerfield