09 – Day 3- June 6th 2002 – Transcript criminal trial David Westerfield

DAY 3 – SAN DIEGO, CALIFORNIA, THURSDAY, JUNE 6, 2002 (morning 2)



Witness:
Brenda Van Dam

3813
1 THE COURT: WELCOME BACK, LADIES AND GENTLEMEN. OKAY.

2

3 BY MR. DUSEK:

4 Q. MA’AM, WHEN WE QUIT I THINK WE JUST HAD GOTTEN TO

5 THE POINT WHERE YOU WERE AT THE BAR WITH YOUR TWO FEMALE

6 FRIENDS.

7 DID OTHER FRIENDS — OTHER PEOPLE YOU KNOW ARRIVE

8 THAT NIGHT?

9 A. YES.

10 Q. WHAT ARE THEIR NAMES?

11 A. RICH AND KEITH.

12 Q. DID THEY ARRIVE BEFORE OR AFTER YOU FOLKS ARRIVED?

13 A. AFTER.

14 Q. AND DO YOU KNOW WHETHER OR NOT ANY FRIENDS OF THE

15 DEFENDANT ARRIVED THAT NIGHT?

16 A. YES.

17 Q. DID YOU KNOW THEIR NAMES?

18 A. NO.

19 Q. WERE YOU INTRODUCED TO THEM AT ALL?

20 A. I WAS.

21 Q. TELL US WHAT HAPPENED AT THAT POINT.

22 A. THEY ACTUALLY SHOWED UP BEFORE RICH AND KEITH, AND

23 MR. WESTERFIELD INTRODUCED US TO HIM — TO THEM AND THAT WAS IT.

24 Q. DO YOU REMEMBER THEIR NAMES?

25 A. NO.

26 Q. WHAT WERE YOU DOING WHEN THE INTRODUCTIONS WERE

27 MADE BY THE DEFENDANT?

28 A. TALKING TO DENISE AND BARBARA.
3814
1 Q. DID YOU THEN INCLUDE THE DEFENDANT AND HIS FRIENDS

2 IN YOUR CONVERSATION?

3 A. NO.

4 Q. IT WAS SOMETIME AFTER THAT THAT RICH AND KEITH

5 SHOWED UP, IS THAT RIGHT?

6 A. YES.

7 Q. ARE THEY RELATED OR CONNECTED IN SOME WAY?

8 A. RICH — KEITH ACTUALLY WAS MARRIED TO RICH’S

9 WIFE — WIFE’S SISTER, SO THEY’RE BROTHER-IN-LAWS. BUT NOW

10 THEY’RE DIVORCED SO — IT’S CONFUSING. LIZ BRADY AND HER

11 SISTER — KEITH WAS MARRIED TO HER SISTER, AND LIZ IS RICH’S

12 HUSBAND (SIC), AND NOW HER SISTER AND KEITH ARE DIVORCED.

13 Q. ALL RIGHT.

14 AND KEITH AND RICH ARE STILL FRIENDS?

15 A. YES.

16 Q. DID YOU KNOW THEY WERE GOING TO BE THERE THAT

17 NIGHT?

18 A. NO.

19 Q. DO YOU KNOW WHY THEY CAME THERE THAT NIGHT?

20 A. THEY SAID THEY CAME TO WATCH ONE OF KEITH’S FRIENDS

21 THAT WAS IN THE BAND.

22 Q. DID YOU KNOW THE NAME OF THE BAND THAT WAS GONNA BE

23 THERE THAT NIGHT?

24 A. NO.

25 Q. WHAT HAPPENED WHEN RICH AND KEITH ARRIVED IN

26 RELATION TO YOU AND YOUR TWO FRIENDS?

27 A. THEY STARTED TALKING TO US.

28 Q. THEY WERE PART OF YOUR GROUP?
3815
1 A. YES.

2 Q. WHERE WAS THAT GOING ON?

3 A. RICH AND KEITH — WE WERE AT THE BAR AND THEY CAME

4 IN, AND KEITH STOOD OVER BY BARBARA ON THE OTHER SIDE AND RICH

5 STOOD OVER ON THE LITTLE AREA BY ME.

6 Q. WHAT WAS THE DEFENDANT DOING AT THAT POINT?

7 A. HE WAS BEHIND ME.

8 Q. WAS HE OR HIS FRIENDS PART OF YOUR GROUP?

9 A. NO.

10 Q. EVENTUALLY DID YOU LEAVE THE BAR AREA?

11 A. YES, WE DID.

12 Q. WHERE DID YOU GUYS GO?

13 A. WE WENT TO PLAY POOL.

14 Q. WHO ALL WENT?

15 A. FIRST KEITH AND BARBARA WANTED TO GO AND WE DECIDED

16 WE WOULD JOIN THEM, AND SO THEN DENISE AND I WENT.

17 Q. AND TO PLAY POOL IS IN EXHIBIT 31 PHOTOGRAPH “D”;

18 IS THAT CORRECT?

19 A. THAT’S CORRECT.

20 Q. WERE THE TABLES OPEN?

21 A. YES, THEY WERE.

22 Q. WHO PLAYED?

23 A. KEITH AND BARBARA PLAYED ON ONE TABLE AND DENISE

24 AND I PLAYED ON THE OTHER TABLE.

25 Q. DID ANYBODY JOIN YOU AND DENISE?

26 A. YES. THE TWO FRIENDS THAT MR. WESTERFIELD

27 INTRODUCED US TO ASKED IF THEY COULD JOIN US.

28 Q. WHAT DID YOU SAY?
3816
1 A. DENISE SAID YES, AND SHE BROKE US UP INTO TWO

2 TEAMS.

3 Q. WHAT WERE THE TEAMS?

4 A. SHE PLAYED WITH ONE OF THE GENTLEMEN AND I WAS ON

5 THE OTHER TEAM WITH THE OTHER GENTLEMAN.

6 Q. CAN YOU DESCRIBE THE TWO FELLOWS PHYSICALLY SO WE

7 CAN KEEP THEM APART IN ANY SORT OF WAY?

8 A. GOSH, IT’S REALLY HARD TO REMEMBER, BUT ONE OF THEM

9 WORE GLASSES.

10 Q. DID YOU HAVE THE FELLOW WITH GLASSES OR THE OTHER

11 GUY?

12 A. THE OTHER GUY.

13 Q. WHERE WAS THE DEFENDANT WHEN YOU FOLKS WERE PLAYING

14 POOL, IF YOU KNOW?

15 A. I DIDN’T WATCH HIM.

16 Q. WAS HE EVER IN THAT ROOM WITH YOU WHEN YOU WERE

17 PLAYING POOL?

18 A. I REMEMBER ONE TIME HE WAS LEANING AGAINST THE POLE

19 JUST KIND OF WATCHING.

20 Q. IS THAT POLE VISIBLE IN ANY OF THE PHOTOGRAPHS IN

21 EXHIBIT 31?

22 A. RIGHT HERE.

23 Q. THAT TURQUOISE POLE IN PHOTOGRAPH “D”?

24 A. TURQUOISE POLE IN PHOTOGRAPH “D”, YES.

25 Q. WAS HE DOING ANYTHING?

26 A. JUST STARING AT US.

27 Q. DID HE EVER PLAY POOL WITH YOU FOLKS?

28 A. NO.
3817
1 Q. DESCRIBE HOW THE GAMES WENT WHILE YOU WERE THERE

2 PLAYING POOL.

3 A. WE PLAYED THREE GAMES. DENISE PLAYED WITH HER

4 PARTNER FOR TWO AND THEY WON.

5 Q. BOTH?

6 A. THEY WON BOTH GAMES, AND THEN ON THE THIRD GAME I

7 ASKED IF WE COULD SWITCH PARTNERS SO THAT I HAD A CHANCE TO WIN

8 A GAME, AND SOMEHOW THAT HAPPENED AND I ENDED UP WINNING THE

9 THIRD GAME.

10 Q. DO YOU REMEMBER AT THIS POINT IF THE BAND WAS

11 PLAYING YET?

12 A. I THINK THEY WERE JUST STARTING.

13 Q. DO YOU KNOW IF THE DEFENDANT WAS WITH YOU THE

14 ENTIRE TIME YOU GUYS WERE IN THE POOL ROOM?

15 A. NO, I DON’T.

16 Q. WHAT CAUSED YOU GUYS TO LEAVE THE POOL ROOM? WAS

17 THERE SOMETHING ELSE GOING ON?

18 A. PEOPLE HAD STARTED DANCING AND THE BAND WAS

19 STARTING.

20 Q. WHERE DID YOU GO?

21 A. WE ACTUALLY WENT OUT TO THE TRUCK THEN.

22 Q. WHO DID?

23 A. DENISE AND BARBARA AND KEITH AND RICH AND I.

24 Q. DID ANYBODY GET INSIDE THE CAR?

25 A. DENISE AND BARBARA AND I.

26 Q. WHO WAS SITTING WHERE, IF YOU REMEMBER?

27 A. I WAS IN THE DRIVER’S SEAT, DENISE WAS ON THE

28 CONSOLE AND BARBARA WAS IN THE PASSENGER SEAT.
3818
1 Q. WHAT’S GOING ON OUT THERE?

2 A. WE SMOKED MARIJUANA.

3 Q. WHO DID?

4 A. DENISE AND BARBARA AND I.

5 Q. WAS ANYTHING GOING ON WITH BARBARA AND KEITH?

6 A. I’M NOT SURE.

7 Q. DO YOU THINK SOMETHING WAS GOING ON?

8 A. I THINK SOMETHING WAS GOING ON.

9 Q. WHAT DO YOU THINK WAS GOING ON?

10 A. I THINK THEY WERE KISSING.

11 Q. WHERE WAS KEITH?

12 A. HE WAS ON THE — ON BARBARA’S SIDE OF THE TRUCK.

13 Q. INSIDE OR OUTSIDE THE TRUCK?

14 A. OUTSIDE.

15 Q. WHERE WAS BARBARA?

16 A. IN THE PASSENGER SEAT.

17 Q. WHY DO YOU JUST THINK THEY WERE AND DON’T KNOW FOR

18 SURE?

19 A. I WAS TALKING TO RICH. HE WAS ON MY SIDE OF THE

20 CAR AND I WASN’T REALLY PAYING THAT MUCH ATTENTION.

21 Q. WAS ANYTHING GOING ON WITH YOU AND RICH?

22 A. NO.

23 Q. CAN YOU ESTIMATE FOR US HOW LONG YOU GUYS WERE OUT

24 THERE?

25 A. MAYBE 10 MINUTES.

26 Q. THEN WHERE DID YOU GO?

27 A. WENT BACK IN.

28 Q. TO WHERE?
3819
1 A. DAD’S CAFE.

2 Q. WHAT PART OF DAD’S?

3 A. OH, WE STARTED DANCING.

4 Q. WHO DID?

5 A. THE GIRLS AND I STARTED DANCING. I DANCED WITH

6 RICH THAT NIGHT AND KEITH.

7 Q. AND DID YOU DANCE WITH THE OTHER GIRLS?

8 A. YES.

9 Q. DID YOU DANCE WITH ANYBODY ELSE IN THE PLACE?

10 A. AT THE END OF THE NIGHT A GENTLEMAN CAME UP AND

11 ASKED ME IF I WOULD DANCE WITH HIM.

12 Q. AND CAN YOU DESCRIBE HIM FOR US?

13 A. HE WAS PROBABLY IN HIS MID 40S WITH BLOND HAIR.

14 Q. DID YOU DANCE WITH HIM?

15 A. YES.

16 Q. FAST DANCE OR SLOW DANCE?

17 A. IT WAS A SLOW DANCE.

18 Q. HOW ABOUT THE OTHER DANCES THAT YOU WERE DANCING

19 WITH THE GIRLS, FAST DANCES, SLOW DANCES?

20 A. FAST DANCE.

21 Q. AND RICH AND KEITH, DID YOU DANCE WITH THEM?

22 A. YES.

23 Q. FAST DANCE, SLOW DANCE?

24 A. FAST.

25 Q. HOW ABOUT THE DEFENDANT, DID YOU DANCE WITH HIM?

26 A. NO.

27 Q. ARE YOU SURE?

28 A. POSITIVE.
3820
1 Q. HOW ABOUT WITH HIS FRIENDS, DO YOU REMEMBER IF YOU

2 DANCED WITH THEM?

3 A. I CAN’T REMEMBER.

4 Q. DURING THIS TIME AT DAD’S WERE YOU DOING ANY

5 DRINKING?

6 A. YES.

7 Q. WHAT DID YOU DRINK THAT NIGHT?

8 A. I HAD THREE CRANBERRY AND VODKAS, A SHOT OF TEQUILA

9 AND SOME WATER, A RED BULL AND I MAY HAVE HAD A DIET COKE.

10 Q. WHAT’S A RED BULL?

11 A. A RED BULL IS AN ENERGY DRINK. IT HAS LOTS OF

12 CAFFEINE IN IT.

13 Q. IS IT AN ALCOHOLIC DRINK?

14 A. NO, IT IS NOT.

15 Q. HOW MUCH WATER WERE YOU DRINKING?

16 A. I HAD ABOUT TWO GLASSES.

17 Q. DO YOU REMEMBER WHEN OR WHERE YOU WERE HAVING THE

18 WATER?

19 A. PROBABLY IN BETWEEN THE DRINKS.

20 Q. AND YOU WERE THERE FOR HOW LONG?

21 A. FROM ABOUT 8:30, 8:45 UNTIL CLOSING ABOUT 1:50.

22 Q. WHILE YOU WERE DANCING WITH THE FOLKS THAT YOU WERE

23 DANCING WITH, WERE THERE TIMES WHEN YOU WEREN’T DANCING?

24 A. YES.

25 Q. DID YOU SPEAK WITH THE DEFENDANT WHILE YOU WERE IN

26 THAT DANCE AREA/BAR AREA?

27 A. AT ONE TIME HE CAME UP TO ME AND HE ASKED ME — HE

28 SAID THAT RICH HAD SAID SOMETHING TO HIM TO THE EFFECT OF “WE
3821
1 KNOW WHAT YOU’RE ABOUT” OR “WE KNOW WHAT YOU’RE UP TO” AND HE

2 ASKED ME WHAT HE MEANT, AND I TOLD HIM HE HAD TO GO — HE HAD TO

3 GO ASK HIM BECAUSE I HAD NO IDEA.

4 Q. SO WE UNDERSTAND, WHO’S “HE”?

5 A. MR. WESTERFIELD.

6 Q. THE DEFENDANT WAS SAYING THAT RICH —

7 A. RICH BRADY, YEAH.

8 Q. WE CAN’T TALK AT THE SAME TIME.

9 A. I APOLOGIZE.

10 Q. DID YOU SPEAK ANYTHING ELSE WITH THE DEFENDANT

11 WHILE YOU WERE THERE?

12 A. NOT THAT I RECALL.

13 Q. DO YOU RECALL ANYTHING ABOUT A FATHER/DAUGHTER

14 DANCE DISCUSSION?

15 A. I MAY HAVE TALKED ABOUT THE FATHER/DAUGHTER DANCE.

16 IT WAS COMING UP THE FOLLOWING THURSDAY.

17 Q. WHOSE FATHER/DAUGHTER DANCE?

18 A. DANIELLE’S.

19 Q. WHO WAS SHE SUPPOSED TO BE GOING WITH?

20 A. DAMON.

21 Q. WHEN WAS THAT COMING UP?

22 A. IT WAS ON THURSDAY NIGHT AT THE SCHOOL.

23 Q. THE FOLLOWING THURSDAY AFTER THE NIGHT AT DAD’S?

24 A. YES.

25 Q. DO YOU RECALL WHO YOU WERE TALKING WITH ABOUT THAT?

26 A. NO. I KNOW I TOLD DENISE AND BARBARA. I MAY HAVE

27 TOLD MR. WESTERFIELD.

28 Q. ABOUT WHAT TIME YOU LEFT THE BAR, DO YOU REMEMBER?
3822
1 A. UMM, WELL, IT WAS PROBABLY A LITTLE BIT BEFORE

2 2:00.

3 Q. AT THE TIME THAT YOU AND YOUR FRIENDS GATHERED UP

4 TO LEAVE, DO YOU KNOW IF THE DEFENDANT WAS STILL THERE?

5 A. NO.

6 Q. NO, HE WASN’T OR NO, YOU DON’T KNOW?

7 A. NO, I DON’T KNOW IF HE WAS THERE.

8 Q. DID YOU EVER SEE HIM LEAVE THAT EVENING?

9 A. NO.

10 Q. HOW ABOUT HIS FRIENDS, THE TWO FELLOWS? WERE YOU

11 AWARE OF THEM LEAVING AT ANY TIME?

12 A. NO, I WAS NOT AWARE.

13 Q. HOW DID IT COME TO BE THAT YOU GUYS DECIDE TO

14 GATHER UP AND LEAVE?

15 A. KEITH WAS TALKING TO ME ABOUT WANTING TO GET

16 TOGETHER WITH BARBARA, AND HE — HE ASKED ME IF I COULD MAKE IT

17 HAPPEN FOR HIM AND I SAID I DON’T KNOW. I TOLD HIM THEY HAD TO

18 COME BACK TO MY HOUSE TO PICK UP THEIR CAR.

19 Q. “THEY” WAS WHO?

20 A. I TOLD HIM THAT DENISE AND BARBARA NEEDED TO COME

21 BACK WITH ME TO PICK UP THEIR CAR, AND SO THEY — I TOLD HIM HE

22 COULD COME BACK FOR A FEW MINUTES AND TALK TO HER.

23 Q. WAS THERE ANY SIGN OR WARNING THAT THE

24 ESTABLISHMENT WAS ABOUT TO CLOSE?

25 A. I REMEMBER THERE BEING A LAST CALL FOR ALCOHOL.

26 Q. WHAT DID YOU DO, YOU AND YOUR GIRLFRIENDS DO?

27 A. I DROVE — I WALKED OUT BACK AND GOT THE TRUCK. I

28 PULLED AROUND TO THE FRONT OF DAD’S CAFE. I WENT TO THE WINDOW
3823
1 AND KNOCKED ON THE WINDOW. DENISE AND BARBARA WERE IN THE

2 SMOKING AREA.

3 Q. THAT WOULD BE THE AREA IN EXHIBIT 31 PHOTOGRAPH “E”

4 THAT’S PARTIALLY COVERED THERE?

5 A. YES.

6 Q. WHAT HAPPENED THEN?

7 A. THEY CAME OUT AND WE GOT INTO THE TRUCK AND WE

8 DROVE AWAY. THAT WAS JUST DENISE AND BARBARA CAME OUT.

9 Q. AND DID YOU EXPECT OTHER PEOPLE TO GO BACK TO YOUR

10 HOUSE WITH YOU?

11 A. I THOUGHT THAT RICH AND KEITH WERE GONNA COME BY.

12 Q. DID YOU MAKE IT ALL THE WAY HOME IN ONE TRIP?

13 A. NO. WHEN WE STARTED DRIVING AWAY BARBARA REALIZED

14 THAT SHE HAD LEFT HER CIGARETTES, AND WE HAD TO MAKE A U-TURN

15 AND GO BACK AND SHE JUMPED OUT AND GOT THEM.

16 Q. HOW QUICKLY DID YOU HAVE TO MAKE THAT RETURN TO

17 DAD’S?

18 A. IT WAS PRETTY QUICK. IT WAS BY THE FIRST RED

19 LIGHT.

20 Q. WHEN SHE PICKED UP HER CIGARETTES WHERE DID YOU GO?

21 A. WE DROVE BACK TO MY HOUSE.

22 Q. AND DO YOU KNOW WHERE KEITH AND RICH WERE AT THAT

23 TIME?

24 A. ACTUALLY, WHEN WE GOT TO THE RED LIGHT OF

25 SPRINGHURST AND POWAY ROAD THEY WERE IN FRONT OF US.

26 Q. THEN WHAT HAPPENED?

27 A. WE DROVE TO OUR HOUSE. I PULLED INTO THE DRIVEWAY.

28 KEITH AND RICH PARKED IN FRONT.
3824
1 Q. AS YOU PULLED INTO YOUR DRIVEWAY DID YOU SEE ANY

2 VEHICLES AROUND THE DEFENDANT’S HOME?

3 A. NO.

4 Q. DID YOU SEE A MOTOR HOME THERE?

5 A. NO.

6 Q. DID YOU HAVE TO GO BY HIS HOME TO GET TO YOUR

7 HOUSE?

8 A. YES.

9 Q. SO ONCE YOU STOPPED AT YOUR HOUSE WHAT HAPPENS?

10 A. DENISE, BARBARA AND I WENT INSIDE. KEITH AND RICH

11 WERE GETTING OUT OF KEITH’S CAR AND THEY STARTED COMING IN.

12 Q. WHAT HAPPENS ONCE YOU GET INSIDE?

13 A. I — AS SOON AS I GOT INSIDE, I NOTICED TO THE LEFT

14 THAT THERE WAS A RED BLINKING LIGHT ON THE ALARM MONITOR.

15 Q. WHAT DID THAT MEAN TO YOU?

16 A. IT MEANT THAT THERE WAS A DOOR OR A WINDOW OPEN.

17 Q. DO YOU RECALL IF THERE WERE ANY LIGHTS ON INSIDE?

18 A. THERE WAS A TV ON UP IN MY MASTER BEDROOM, AND WHEN

19 YOU WALK IN THE FRONT DOOR YOU CAN SEE UP THERE.

20 Q. AND DID YOU SEE YOUR HUSBAND, DAMON, AT THAT POINT?

21 A. NO.

22 Q. WHAT HAPPENED ONCE YOU GOT INSIDE AND NOTICED THE

23 LIGHT BLINKING?

24 A. I TOLD DENISE THAT THERE HAD TO BE A DOOR OR A

25 WINDOW OPEN AND I NEEDED TO FIND IT.

26 Q. SO WHAT DID YOU DO?

27 A. SO SHE STARTED LOOKING FOR IT, AND I WENT UPSTAIRS

28 TO TELL DAMON THAT KEITH AND RICH WERE STOPPING BY FOR A MINUTE,
3825
1 BECAUSE HE WAS UP AND I ASKED HIM IF HE WANTED TO COME DOWN.

2 Q. ALL RIGHT.

3 THEN WHAT HAPPENED?

4 A. KEITH AND RICH CAME IN. DENISE AND I STARTED

5 LOOKING FOR THE OPEN DOOR OR WINDOW AND WE FOUND IT IN THE

6 GARAGE.

7 Q. WHICH DOOR WAS IT?

8 A. IT WAS THE GARAGE DOOR LEADING OUT TO THE SIDE OF

9 OUR HOUSE.

10 Q. HAD YOU SEEN THAT DOOR OPENED EARLIER IN THE

11 EVENING?

12 A. YES, I DID.

13 Q. WHEN?

14 A. WHEN WE WERE IN THE GARAGE.

15 Q. LET ME SHOW YOU WHAT’S BEEN MARKED AS COURT’S

16 EXHIBIT 24, LABELED AT THE TOP “VAN DAM RESIDENCE SIDE GARAGE

17 DOOR.” DO YOU SEE THE DOOR THAT WAS OPEN?

18 A. YES.

19 Q. WHICH DOOR IS IT?

20 A. IT’S IN PICTURE “A.”

21 Q. THAT GOES FROM INSIDE THE GARAGE TO THE SIDE YARD?

22 A. TO THE SIDE YARD.

23 Q. AND SO WE MAKE SURE WE HAVE THE SAME DOOR, I’M

24 SHOWING YOU NOW COURT’S EXHIBIT 8A, LABELED AT THE TOP “VAN DAM

25 RESIDENCE GARAGE.” DO YOU SEE THE SIDE GARAGE DOOR THAT WAS

26 OPEN WHEN YOU RETURNED HOME THAT EVENING?

27 A. IT’S IN PICTURE “G.”

28 Q. THANK YOU.
3826
1 AND THE RED LIGHT, THE ALARM THAT WAS ON, IS THAT

2 VISIBLE IN ANY OF THESE PHOTOGRAPHS?

3 A. IT’S IN PHOTOGRAPH “A” CIRCLED WITH BLUE.

4 Q. WHAT HAPPENED TO THE LIGHT AFTER YOU CLOSED THE

5 SIDE GARAGE DOOR?

6 A. THE LIGHT WENT OFF.

7 Q. WHAT DID YOU DO?

8 A. WE WENT INTO THE KITCHEN AND HEATED UP PIZZA.

9 Q. WAS THERE A TIME WHEN YOU WENT UPSTAIRS?

10 A. YES, THERE WAS. WHEN I FIRST CAME IN FROM CLOSING

11 THE DOOR — ACTUALLY KEITH AND RICH WERE SITTING IN THE LIVING

12 ROOM AREA AND THEY ASKED WHERE BARBARA WAS, OR THEY WERE

13 JOKINGLY SAYING WHY DID BARBARA GO UPSTAIRS, AND I DIDN’T KNOW

14 SHE WAS UP THERE SO I WENT UPSTAIRS AND —

15 MR. DUSEK: HOLD ON A MINUTE, MA’AM.

16 (PAUSE)

17 THE COURT: OKAY, MR. DUSEK.

18

19 BY MR. DUSEK:

20 Q. DO YOU RECALL USING ANY RESTROOM FACILITIES AT THE

21 HOUSE THAT NIGHT?

22 A. NO, I DON’T RECALL.

23 Q. DO YOU REMEMBER GOING UPSTAIRS TO USE THE BATHROOM

24 AT ALL?

25 A. NO.

26 Q. WHAT HAPPENED WHEN YOU WENT UPSTAIRS?

27 A. I WENT UPSTAIRS, AND BARBARA WAS LAYING ON THE BED

28 NEXT TO DAMON.
3827
1 Q. WHAT WERE THEY DOING?

2 A. THEY WERE TALKING.

3 Q. ANYTHING ELSE THAT YOU SAW?

4 A. NO.

5 Q. WHAT DID YOU DO?

6 A. I TOLD THEM THAT THEY WERE BEING RUDE, THAT THERE

7 WERE PEOPLE DOWNSTAIRS AND THAT THEY BOTH NEEDED TO COME

8 DOWNSTAIRS.

9 Q. WHAT HAPPENED?

10 A. WE ALL WENT DOWNSTAIRS.

11 Q. WHAT WAS GOING ON DOWNSTAIRS?

12 A. DENISE WAS HEATING UP PIZZA, AND WE ALL WENT INTO

13 THE KITCHEN AREA AND ATE PIZZA.

14 Q. WHERE DID THE PIZZA COME FROM?

15 A. IT WAS LEFT OVER FROM EARLIER IN THE EVENING.

16 Q. DID YOU CHECK ON YOUR CHILDREN THAT EVENING ONCE

17 YOU GOT BACK FROM DAD’S?

18 A. NO, I DID NOT.

19 Q. DID YOU GO TO THEIR ROOMS AT ALL?

20 A. YES, I DID.

21 Q. WHEN WAS THAT?

22 A. WHEN I FIRST WENT UPSTAIRS TO TELL DAMON THAT KEITH

23 AND RICH WERE HERE, I WENT TO THEIR DOORS AND CLOSED THEM

24 BECAUSE THE VOICES, THEIR VOICES WERE TRAVELING UP, AND I DIDN’T

25 WANT THEM TO WAKE UP.

26 Q. “THEIR VOICES” BEING?

27 A. KEITH AND RICH.

28 Q. SO WE UNDERSTAND THE LAYOUT OF THE UPSTAIRS, I’VE
3828
1 HAD MARKED AS COURT’S EXHIBIT 15 THIS FLOOR PLAN LABELED AT THE

2 TOP “VAN DAM RESIDENCE-UPSTAIRS.”

3 WE’VE SHOWN YOU THIS FLOOR PLAN BEFORE, HAVEN’T WE

4 MA’AM?

5 A. YES.

6 Q. DOES THAT APPEAR TO BE A FLOOR PLAN OF THE UPSTAIRS

7 AREA TO YOUR RESIDENCE?

8 A. YES, IT IS.

9 Q. USING THE POINTER, CAN YOU POINT TO THE AREA WHERE

10 YOU WOULD GET UPSTAIRS, THE STAIRWAY?

11 A. RIGHT HERE.

12 Q. APPEARS TO BE THE LEFT MIDDLE SIDE OF THAT DIAGRAM?

13 A. YES, IT IS. I’M SORRY, YES IT IS.

14 Q. IS THE MASTER BEDROOM DEPICTED IN THAT PHOTOGRAPH?

15 A. THE MASTER BEDROOM IS OVER HERE.

16 Q. WHERE IT SAYS “MASTER BEDROOM”?

17 A. WHERE IT SAYS “MASTER BEDROOM.”

18 Q. AND THE CHILDREN’S BEDROOMS, ARE THEY DEPICTED?

19 A. YES, THEY ARE.

20 Q. AS YOU COME UP THE STAIRS, HOW DO YOU GET TO

21 DYLAN’S ROOM?

22 A. DYLAN’S ROOM IS THE FIRST ROOM ON THE RIGHT.

23 Q. AND THEN DANIELLE’S BEDROOM IS WHERE?

24 A. HER ROOM’S THE SECOND ROOM ON THE RIGHT.

25 Q. IS LABELED “DANIELLE’S BEDROOM”?

26 A. YES, IT IS.

27 Q. AND THE FAR BEDROOM IS WHOSE?

28 A. THIS IS DEREK’S BEDROOM.
3829
1 Q. OKAY.

2 WHEN YOU WENT TO THEIR DOORS WHAT WAS THE

3 CONDITION, OPEN OR CLOSED, OF THEIR DOORS?

4 A. ALL OF THE DOORS WERE A LITTLE BIT OPEN. WE LEAVE

5 THEM A LITTLE OPEN WHEN WE GO TO BED.

6 Q. AND YOU CLOSED ALL OF THEM?

7 A. YES.

8 Q. DID YOU LOOK INSIDE?

9 A. NO.

10 Q. WHY NOT?

11 A. BECAUSE WHEN I GOT — WHEN I WENT UPSTAIRS TO TELL

12 DAMON THAT I WAS HOME, I ASKED HIM HOW — HOW THE TUCK-IN WENT,

13 HOW EVERYTHING WENT THAT NIGHT, IF ANYONE ASKED FOR ME, AND HE

14 SAID THAT EVERYTHING HAD GONE FINE, THAT THEY ALL HAD BRUSHED

15 THEIR TEETH AND THEY HAD BEEN READ TO AND NO ONE ASKED FOR ME.

16 Q. ONCE YOU GOT THE DOORS CLOSED, WHAT WAS GOING ON

17 DOWNSTAIRS?

18 A. DENISE WAS HEATING UP PIZZA.

19 Q. WHERE WAS THE GROUP?

20 A. THE GROUP WAS IN THE KITCHEN AREA, THE EATING AREA.

21 Q. WHAT WAS GOING ON THERE?

22 A. THEY WERE TALKING AND HEATING UP PIZZA.

23 Q. ANYTHING TO DRINK?

24 A. WATER.

25 Q. ANY ALCOHOL?

26 A. NO ALCOHOL.

27 Q. ANY MARIJUANA?

28 A. NO.
3830
1 Q. HOW LONG WOULD YOU SAY THEY HUNG AROUND THERE ON

2 THE KITCHEN AREA EATING AT YOUR HOUSE?

3 A. PROBABLY ABOUT 20 MINUTES.

4 Q. THEN WHAT HAPPENED?

5 A. DENISE AND BARBARA LEFT.

6 Q. WAS ANYTHING SAID AS THEY LEFT?

7 A. THEY SAID THEY WERE TIRED AND THEY WERE GOING HOME,

8 AND I WALKED THEM OUT TO THE FRONT, SAID GOODBYE TO THEM.

9 Q. AS THEY LEFT WERE THEY WITH ANYONE ELSE?

10 A. NO.

11 Q. DID THEY HAVE DANIELLE WITH THEM?

12 A. NO.

13 Q. WHERE WERE KEITH AND RICH WHEN THE GIRLFRIENDS

14 LEFT?

15 A. THEY WERE IN THE KITCHEN TALKING TO DAMON.

16 Q. WHAT HAPPENED AFTER THE GIRLFRIENDS LEFT?

17 A. I WENT BACK INTO THE KITCHEN, AND DAMON TOLD KEITH

18 AND RICH THAT HE DIDN’T WANT TO HAVE TO KICK ‘EM OUT BUT WE WERE

19 TIRED AND WANTED TO GO TO BED, AND SO THEY BOTH LEFT.

20 Q. HOW DO YOU KNOW?

21 A. I WALKED THEM TO THE DOOR AND I CLOSED THE DOOR.

22 Q. DID THEY WALK OUT WITH ANYBODY?

23 A. NO.

24 Q. DID THEY HAVE DANIELLE WITH THEM?

25 A. NO.

26 Q. WHERE DID YOU THINK SHE WAS?

27 A. IN HER BED.

28 Q. DID YOU LOCK UP AFTER YOUR GUESTS LEFT?
3831
1 A. YES.

2 Q. AND WHAT DID YOU DO?

3 A. LOCKED THE FRONT DOOR WHEN THEY LEFT AND THE BACK

4 DOOR WAS ALREADY LOCKED.

5 Q. HOW DO YOU KNOW?

6 A. BECAUSE WHEN WE FIRST GOT HOME LAYLA WAS INSIDE,

7 AND SHE JUST LIKES TO JUMP A LITTLE BIT, AND SHE WAS JUMPING ON

8 KEITH A LITTLE BIT AND I WAS GONNA LET HER OUT. I WENT TO THE

9 BACK DOOR TO CHECK IT AND IT WAS ALREADY LOCKED AND I DIDN’T

10 HAVE TO LET HER OUT ‘CAUSE SHE SETTLED DOWN.

11 Q. DO YOU RECALL THE TEMPERATURE THAT NIGHT, WHAT THE

12 WEATHER WAS LIKE?

13 A. IT WAS VERY COOL.

14 Q. WHAT DO YOU MEAN BY THAT?

15 A. WE SLEPT WITH THE WINDOWS CLOSED.

16 Q. OKAY.

17 AFTER YOU GOT EVERYTHING LOCKED UP WHERE DID YOU

18 AND DAMON GO?

19 A. STRAIGHT TO BED.

20 Q. WHAT’S THE NEXT — CAN YOU ESTIMATE FOR US ABOUT

21 WHAT TIME IT WAS THAT YOU GOT IN BED, IF YOU CAN?

22 A. PROBABLY AROUND 2:30.

23 Q. AND HOW LONG — I THINK YOU’VE ALREADY ANSWERED

24 THAT ONE.

25 WHAT’S THE NEXT THING THAT YOU RECALL HAPPENING

26 AFTER YOU GOT IN BED AND FELL ASLEEP?

27 A. I RECALL DAMON GETTING UP TO DO SOMETHING WITH THE

28 DOG.
3832
1 Q. DID YOU WAKE UP?

2 A. NOT FULLY. I JUST REMEMBER HIM GETTING UP.

3 LAYLA HAD CHEWED UP HER BED THAT NIGHT AND IT WAS

4 IN THE — DAMON THREW IT INTO THE LAUNDRY ROOM SO SHE DIDN’T

5 HAVE A BED, SO SHE WAS VERY EDGY AND SHE DIDN’T WANT TO LAY DOWN

6 ANYWHERE AND SLEEP.

7 Q. DID YOU SAY ANYTHING TO YOUR HUSBAND AS HE GOT UP,

8 WHENEVER THAT WAS?

9 A. I DON’T RECALL.

10 Q. DID YOU NOTICE ANYTHING AT THAT TIME REGARDING ANY

11 ALARM LIGHTS?

12 A. NO.

13 Q. DID YOU GET OUT OF BED?

14 A. NO.

15 Q. WHAT’S THE NEXT THING YOU REMEMBER HAPPENING?

16 A. I WOKE UP IN THE MORNING.

17 Q. WHERE WAS DAMON?

18 A. HE WAS ALREADY DOWNSTAIRS.

19 Q. SO WHAT DID YOU DO?

20 A. I LAID IN BED FOR ABOUT TEN MORE MINUTES AND THEN I

21 GOT UP AND TOOK A SHOWER.

22 Q. DID YOU HAVE ANY RESPONSIBILITIES THAT MORNING?

23 A. YES, I DID.

24 Q. WHAT WERE THEY?

25 A. I WAS GOING TO BE WATCHING MY NEIGHBOR ACROSS THE

26 STREET’S — HER TWO CHILDREN.

27 Q. HOW LONG WERE YOU SUPPOSED TO WATCH THEM?

28 A. FOR A COUPLE HOURS.
3833
1 Q. WAS THERE A TIME WHEN SHE WAS DUE OVER AT YOUR

2 HOUSE WITH THE KIDS?

3 A. ABOUT — I THINK IT WAS 9:30.

4 Q. ONCE YOU GOT YOUR SHOWER TAKEN CARE OF WHAT DID YOU

5 DO?

6 A. I WENT DOWNSTAIRS AND ASKED ANYONE IF THEY WANTED

7 BREAKFAST. I STARTED MAKING BREAKFAST AND THE DOOR BELL RANG.

8 Q. WHO ALL WAS DOWNSTAIRS?

9 A. DEREK, DAMON AND DYLAN.

10 Q. HOW ABOUT DENISE — OR I’M SORRY, DANIELLE, DO YOU

11 RECALL WHERE SHE WAS?

12 A. I THOUGHT SHE WAS STILL IN BED SLEEPING.

13 Q. HAD YOU CHECKED HER BEFORE YOU CAME DOWNSTAIRS?

14 A. NO.

15 Q. WHAT HAPPENED WHEN THE NEIGHBORS SHOWED UP WITH

16 THEIR TWO KIDS?

17 A. I TOLD CHRISTIE THAT DANIELLE WAS STILL SLEEPING

18 AND THAT IF SHE WANTED TO SHE COULD GO UP AND WAKE HER UP.

19 Q. DID SHE?

20 A. NO.

21 Q. WHAT DID SHE DO?

22 A. SHE WAS IN THE FAMILY ROOM WITH DYLAN AND DEREK

23 PLAYING AND HER BROTHER.

24 Q. WHAT HAPPENED THEN?

25 A. I STARTED TO CRACK EGGS TO MAKE BREAKFAST, AND THEN

26 I REALIZED THAT SHE HAD NOT GONE UP TO GET DANIELLE UP, SO I

27 TOLD HER I’D DO IT MYSELF.

28 Q. DID YOU?
3834
1 A. YES.

2 Q. WHAT DID YOU DO?

3 A. I WALKED UPSTAIRS AND I WENT INTO HER ROOM.

4 Q. DO YOU REMEMBER IF HER DOOR WAS OPEN OR CLOSED?

5 A. IT WAS OPEN.

6 Q. HOW HAD IT LAST BEEN THE LAST TIME YOU HAD SEEN THE

7 DOOR?

8 A. IT WAS CLOSED.

9 Q. AND YOU WALKED INTO THE ROOM, WHAT DID YOU SEE?

10 A. JUST HER BED.

11 Q. DIDN’T SEE HER?

12 A. NO.

13 Q. WHAT DID YOU DO?

14 A. I WENT INTO THE BATHROOM TO SEE IF SHE WAS IN

15 THERE, BECAUSE SOMETIMES SHE’LL GET UP AND SIT IN THERE FOR A

16 LITTLE WHILE AND SHE WASN’T IN THERE. AND THEN I ASKED DAMON IF

17 SHE HAD SLEPT IN HER OWN BED, BECAUSE SOMETIMES SHE LIKED TO

18 SLEEP IN DEREK’S ROOM. HE HAS TWO BEDS. AND HE SAID NO, SHE

19 SHOULD BE IN HER ROOM. AND I SAID WELL, SHE’S NOT.

20 AND I STARTED LOOKING AROUND THE HOUSE AND LOOKING

21 AT OTHER BEDS AND LOOKING IN THE CLOSETS. AND DAMON CAME

22 UPSTAIRS AND HE STARTED LOOKING WITH ME AND WE WERE YELLING OUT

23 HER NAME AND THEN WE WENT DOWNSTAIRS. DAMON WENT OUT FRONT AND

24 I WENT OUT BACK BUT WE COULDN’T FIND HER.

25 Q. DID YOU CALL ANYBODY?

26 A. I CALLED 911.

27 Q. HOW ABOUT ANY OF YOUR FRIENDS, FAMILY,

28 ACQUAINTANCES?
3835
1 A. I CALLED JULIE AND I TOLD HER THAT DANIELLE WAS NOT

2 IN HER BED, AND HER TWO CHILDREN WERE GETTING VERY UPSET, AND I

3 TOLD HER SHE NEEDS TO COME BACK AND GET THEM. AND SO — AND

4 THEN I CALLED ONE OF DANIELLE’S FRIEND’S MOM — HER MOM AND

5 TALKED TO HER.

6 Q. A NEIGHBOR LADY?

7 A. A NEIGHBOR LADY.

8 Q. DID DAMON DO ANY SEARCHING OTHER THAN RIGHT THERE

9 AROUND THE HOUSE?

10 A. HE — I’M NOT SURE, BECAUSE I WAS IN THE BACKYARD,

11 HE WENT OUT THE FRONT DOOR. I WENT OVER TO MY NEIGHBOR’S YARD

12 AND LOOKED IN THE NEXT DOOR NEIGHBOR’S YARD.

13 Q. YOU INDICATED YOU CALLED 911?

14 A. YES.

15 (MARKED FOR ID: = TRIAL EX. 36, 911 TAPE )

16 (MARKED FOR ID: = TRIAL EX. 36A-911 TRANSCRIPT)

17 MR. DUSEK: AT THIS TIME I’VE HAD MARKED AS COURT’S

18 EXHIBIT 36 A CASSETTE TAPE, AND I’VE HAD MARKED AS COURT’S

19 EXHIBIT 36A —

20 MR. FELDMAN: I’M SORRY. THE EXHIBIT NUMBER OF THE TAPE?

21 MR. DUSEK: THIRTY-SIX.

22 — AND A FOUR-PAGE TRANSCRIPT. WE HAVE COPIES FOR

23 THE JURY.

24 THE COURT: ALL RIGHT.

25 MR. FELDMAN: YOUR HONOR, I TALKED TO COUNSEL ABOUT THIS.

26 WE CAN GO EITHER SIDEBAR TO TRY AND ADDRESS YOU ON IT, JUST THE

27 MANNER IN WHICH THE TRANSCRIPTS ARE TO BE VIEWED.

28 THE COURT: BETTER DO IT AT SIDEBAR JUST OUT OF AN
3836
1 ABUNDANCE OF CAUTION.

2

3

4(PROCEEDINGS NOT PART OF THE PUBLIC RECORD.)

5

6

7

8

9

10

11

12

13

14 (THE FOLLOWING PROCEEDINGS WERE HELD IN
OPEN COURT IN THE PRESENCE OF THE JURY:)
15

16 THE COURT: OKAY, LADIES AND GENTLEMEN. YOU’RE GOING TO

17 BE GETTING A COPY OF THE TRANSCRIPT OF THE 911 TAPE.

18 I JUST WANT YOU TO KNOW A COUPLE THINGS. NUMBER

19 ONE, THE BEST EVIDENCE OF WHAT THE TAPE SAYS IS THE TAPE ITSELF.

20 THESE ARE BEING GIVEN TO YOU MERELY AS AN AID TO ASSIST YOU IN

21 LISTENING TO THE TAPE.

22 SOMETIMES THERE ARE AREAS THAT MIGHT BE INAUDIBLE.

23 ALSO, THESE ARE NOT FOR YOU. THEY’RE JUST FOR YOUR USE RIGHT

24 NOW, AND THEY WILL BE COLLECTED AS SOON AS WE’RE DONE LISTENING

25 TO THE TAPE.

26 ALL RIGHT. IT APPEARS THAT ALL OF THE JURORS AND

27 ALTERNATES HAVE A COPY OF THE TRANSCRIPT.

28 MR. DUSEK: I’D ASK THAT WE BE ABLE TO PLAY THE TAPE NOW.
3837
1 THE COURT: THAT’S FINE.

2 (EXHIBIT 36 – 911 TAPE BEING PLAYED)

3 THE COURT: OKAY, LADIES AND GENTLEMEN. JUST PASS THOSE

4 TO YOUR RIGHT.

5

6 BY MR. DUSEK:

7 Q. MRS. VAN DAM, DID YOU JUST GET TO HEAR THAT 911

8 CALL WITH US?

9 A. YES.

10 Q. IS THAT YOUR VOICE ON THAT TAPE?

11 A. YES.

12 Q. HOW LONG DID IT TAKE LAW ENFORCEMENT TO SHOW UP

13 AFTER THAT PHONE CALL, IF YOU CAN REMEMBER?

14 A. APPROXIMATELY 15 MINUTES.

15 Q. WHAT WERE YOU DOING DURING THAT TIME?

16 A. I DON’T RECALL. I WAS SEARCHING FOR DANIELLE.

17 Q. WERE YOU ALLOWED BACK INTO THE HOUSE THAT NIGHT?

18 A. NO.

19 Q. WHY NOT?

20 A. BECAUSE THEY WERE LOOKING FOR EVIDENCE.

21 Q. WHERE DID YOU SPEND THE NIGHT?

22 A. AT MY NEIGHBOR ACROSS THE STREET, JULIE.

23 Q. WHAT’S HER NAME?

24 A. JULIE HENNES.

25 Q. IS THAT THE LADY YOU WERE BABY-SITTING FOR?

26 A. YES.

27 Q. HOW MANY NIGHTS DID YOU SPEND AT HER HOUSE?

28 A. ONE NIGHT.
3838
1 Q. WHEN DID YOU GET BACK INTO HER HOUSE — OR I’M

2 SORRY, BACK INTO YOUR HOUSE?

3 A. SUNDAY NIGHT.

4 Q. WERE THERE ANY RESTRICTIONS LAW ENFORCEMENT PLACED

5 UPON YOU GOING BACK INTO YOUR HOUSE?

6 A. NO.

7 Q. DO YOU KNOW IF THEY APPEARED TO BE DONE WITH THEIR

8 EVIDENCE COLLECTION?

9 A. THEY APPEARED TO BE DONE.

10 Q. WERE ANY EFFORTS MADE TO CLEAN YOUR HOUSE ONCE YOU

11 WERE ALLOWED TO GET BACK IN?

12 A. BEFORE WE WENT IN — ACTUALLY, WHEN I FIRST WALKED

13 IN THERE WAS BLACK EVERYWHERE, AND I DIDN’T WANT TO TAKE MY BOYS

14 BACK INTO THAT. I WAS AFRAID IT WOULD SCARE THEM. SO A FRIEND

15 OF MINE CALLED IN A FEW OF THE NEIGHBORHOOD MOMS AND THEY

16 CLEANED IT.

17 Q. DID THEY COMPLETE THE CLEANING JOB?

18 A. DOWNSTAIRS.

19 Q. DID ANYTHING STOP THEM FROM GOING UPSTAIRS?

20 A. I PUT A GATE IN FRONT OF DANIELLE’S ROOM AND I

21 ASKED THEM NOT TO GO IN THERE.

22 Q. WHY?

23 A. BECAUSE I DID NOT WANT IT TOUCHED.

24 Q. DID LAW ENFORCEMENT COME BACK ON OTHER OCCASIONS TO

25 TRY TO GET THINGS OUT OF HER ROOM?

26 A. YES, THEY DID.

27 Q. DID YOU PROVIDE THEM WITH ANY PHYSICAL EVIDENCE

28 THAT THEY WANTED FROM THE HOUSE?
3839
1 A. YES.

2 Q. DID THEY ASK FOR PHYSICAL SAMPLES FROM YOU AND YOUR

3 HUSBAND AND YOUR CHILDREN?

4 A. YES.

5 Q. BLOOD, HAIR, THAT TYPE OF THING?

6 A. YES.

7 Q. DID THEY ALSO ASK FOR SAMPLES FROM YOUR DOG?

8 A. YES.

9 Q. DID YOU PROVIDE THOSE?

10 A. YES.

11 Q. DID DANIELLE GO TO THE DENTIST?

12 A. YES.

13 Q. DO YOU REMEMBER THE NAME OF THE DENTIST?

14 A. IT WAS “A POWAY DENTAL.” HER DENTIST WAS DR.

15 BAKER.

16 Q. DID YOU PROVIDE LAW ENFORCEMENT WITH HER DENTAL

17 RECORDS?

18 A. I GAVE THE PERMISSION TO GO AND GET THEM.

19 Q. DID THEY ASK TO PUT A TAP ON YOUR PHONE, TRACE YOUR

20 PHONE CALLS?

21 A. NOT THAT I RECALL.

22 Q. IN YOUR STAIRWAY, GOING FROM THE BOTTOM UP TO THE

23 UPSTAIRS, DO YOU RECALL WHETHER OR NOT THERE WAS ANY MARKINGS ON

24 THE WALL IN THERE?

25 A. NO.

26 Q. DO YOU RECALL ANY BLOOD BEING FOUND ON THE STAIRWAY

27 GOING UPSTAIRS?

28 A. I DO.
3840
1 Q. DO YOU KNOW HOW THAT GOT THERE?

2 A. I ASSUME IT’S FROM OUR DOG.

3 Q. DO YOU REMEMBER THE DOG BEING BLOODY SOMETIME?

4 A. YES.

5 Q. WHEN WAS THAT?

6 A. SHE WAS RUNNING AROUND THE BACKYARD AND SHE CAME

7 AROUND THE CORNER AND HIT DAMON’S LEG AND HER NOSE WAS BLEEDING

8 VERY BADLY.

9 Q. WHEN WAS THAT IN RELATION TO DANIELLE’S

10 DISAPPEARANCE?

11 MR. FELDMAN: YOUR HONOR, THIS IS SPECULATION. NO

12 FOUNDATION, OBJECTION.

13 THE COURT: OVERRULED.

14 YOU CAN ANSWER.

15 THE WITNESS: A COUPLE WEEKS BEFORE.

16

17 BY MR. DUSEK:

18 Q. I’D LIKE TO SHOW YOU A PICTURE OF THE MASTER

19 BEDROOM I BELIEVE. IT’S EXHIBIT NO. 20.

20 DO YOU RECOGNIZE WHAT I HAVE DEPICTED HERE, MA’AM?

21 A. YES.

22 Q. AND I’D LIKE TO DIRECT YOUR ATTENTION TO THE

23 PHOTOGRAPHS “A” AND “B”, WHAT ARE THEY LOOKING AT?

24 A. THAT IS OUR STEAM CLEANER.

25 Q. AND IS THAT RIGHT IN THE ENTRANCE WAY TO YOUR

26 HOUSE.

27 A. YES, IT IS.

28 Q. HOW LONG HAD IT BEEN THERE?
3841
1 A. JUST A FEW DAYS.

2 Q. WHY WAS IT THERE?

3 A. DANIELLE WANTED THE DOG TO SLEEP IN HER ROOM AND SO

4 I LET HER, AND THE DOG PEED IN HER ROOM AND I HAD TO STEAM CLEAN

5 IT UP.

6 Q. WHEN DID YOU DO THAT IN RELATION TO HER

7 DISAPPEARANCE?

8 A. I DID THAT ON WEDNESDAY OR THURSDAY BEFORE —

9 Q. HER DISAPPEARANCE?

10 A. — HER DISAPPEARANCE.

11 Q. YOU ALSO HAVE A VACUUM?

12 A. YES.

13 Q. WAS THE VACUUM OUT THE DAY THAT SHE DISAPPEARED?

14 A. IT WAS.

15 Q. WHERE WAS IT?

16 A. IT WAS UPSTAIRS IN THE HALL.

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

18 COURT’S EXHIBIT 19, PHOTO DISPLAY BOARD LABELED AT THE TOP VAN

19 DAM RESIDENCE, ROMAN NUMERAL TWO. DO YOU SEE THAT VACUUM

20 CLEANER?

21 A. YES.

22 Q. WHY WAS IT THERE?

23 A. BECAUSE I PLANNED TO VACUUM UPSTAIRS.

24 Q. AND THE VACUUM CLEANER IS SHOWN IN PHOTOGRAPH WHAT

25 ON EXHIBIT 19?

26 A. PHOTOGRAPH “G”.

27 Q. DID YOU USE THAT VACUUM CLEANER AFTER YOU

28 DISCOVERED DANIELLE MISSING?
3842
1 A. NO.

2 Q. WHAT DOES DANIELLE SLEEP IN? HER NIGHTWEAR?

3 A. HER PAJAMAS.

4 Q. CAN YOU DESCRIBE ‘EM FOR US?

5 A. THEY’RE BABY BLUE. THEY GO ABOUT DOWN TO HER

6 CALVES AND THERE’S LITTLE CASCADING FLOWERS THAT COME UP HER

7 LEGS.

8 Q. WHAT MATERIAL, DO YOU KNOW?

9 A. NO.

10 Q. AFTER SHE WEARS — GETS INTO HER PAJAMAS, DO YOU

11 KNOW IF SHE HAS ANY CONTACT WITH YOUR DOG?

12 A. YES, SHE DOES.

13 Q. DESCRIBE THAT.

14 A. SHE’LL GO DOWNSTAIRS AND WRESTLE WITH LAYLA. SHE

15 LAYS ALL OVER HER.

16 Q. FROM THE TIME THAT DANIELLE WAS DISCOVERED

17 MISSING,, CAN YOU REMEMBER HER AT ANY TIME BEFORE THAT BLEEDING?

18 A. NO.

19 Q. WAS THERE AN INCIDENT WHERE SHE GOT INTO SOMETHING

20 WITH THE DOG?

21 A. SHE WAS ROUGHHOUSING WITH LAYLA AND LAYLA JUMPED UP

22 ON HER BACK AND SCRATCHED HER.

23 Q. WHEN WAS THAT IN RELATION TO THE EVENTS YOU’VE

24 DESCRIBED?

25 A. I BELIEVE IT WAS ON WEDNESDAY BEFORE SHE WAS TAKEN

26 Q. DID YOU CHECK HER OUT?

27 A. I DID AND IT WAS A MINOR SCRATCH.

28 Q. WHERE?
3843
1 A. ON HER BACK.

2 Q. ABOUT HOW LONG?

3 A. IT WAS ABOUT THREE, FOUR INCHES LONG.

4 Q. DID YOU SEE ANY BLOOD?

5 A. NO.

6 Q. WHAT HAPPENED AFTER SHE GOT SCRATCHED?

7 A. SHE GOT MAD AT THE DOG AND WENT UPSTAIRS.

8 Q. WAS THERE ANY BLOOD ON THE CLOTHING THAT SHE WAS

9 WEARING ON TOP OF THIS SCRATCH?

10 A. NO.

11 Q. HOW LONG WAS HER HAIR WHEN SHE DISAPPEARED?

12 A. WE HAD JUST HAD HER HAIR CUT THE SATURDAY PRIOR TO

13 THE 1ST.

14 Q. WAS A PICTURE TAKEN OF HER AFTER SHE HAD HER

15 HAIRCUT?

16 A. WE HAD A PASSPORT PHOTO TAKEN ON FRIDAY.

17 Q. THE FRIDAY THAT YOU DESCRIBED GOING TO DAD’S?

18 A. YES.

19 Q. WHY DID YOU HAVE A PASSPORT PICTURE TAKEN?

20 A. WE WERE PLANNING A TRIP TO ITALY.

21 Q. FOR WHAT REASON?

22 A. DAMON WAS WORKING — HE WAS GOING TO BE WORKING IN

23 ITALY FOR TWO WEEKS AND WE WERE GOING TO GO ALONG WITH HIM.

24 Q. AND THIS HAIRCUT THAT SHE HAD, WAS THAT BEFORE THE

25 FIRST TRIP TO DAD’S OR THE SECOND TRIP TO DAD’S. DO YOU

26 REMEMBER THE DAY?

27 A. IT WAS AFTER THE FIRST TRIP TO DAD’S, THAT

28 SATURDAY.
3844
1 Q. I’LL SHOW YOU WHAT’S BEEN PREVIOUSLY MARKED AS

2 COURT’S EXHIBIT 9. DO YOU RECOGNIZE WHAT WE HAVE DEPICTED HERE?

3 A. YES.

4 Q. IS THAT THE PASSPORT PHOTOGRAPH?

5 A. YES, IT IS.

6 Q. WHAT DAY WAS THAT TAKEN?

7 A. IT WAS THE FRIDAY, FEBRUARY 1ST.

8 Q. HOW DO YOU KNOW WHEN HER HAIR WAS CUT?

9 A. BECAUSE I TOOK HER.

10 Q. HOW DO YOU KNOW THE EXACT DATE?

11 A. I DON’T KNOW. I HAVE A RECEIPT.

12 Q. DID I ASK YOU TO LOOK FOR A RECEIPT?

13 A. YOU DID.

14 Q. DID YOU FIND ONE?

15 A. YES.

16 (MARKED FOR ID: = TRIAL EX. 37-HAIRCUT RECEIPT)

17 Q. I’VE HAD THAT MARKED AS COURT’S EXHIBIT 37. IT

18 APPEARS TO BE A RECEIPT FROM HAIR CAMELOT.

19 DO YOU RECOGNIZE THAT, MS. VAN DAM?

20 A. YES.

21 Q. WHAT IS IT?

22 A. IT’S A RECEIPT FOR WHEN WE HAD HAIRCUTS.

23 Q. IS THAT THE ONE YOU FOUND FOR ME?

24 A. YES.

25 Q. DOES IT SAY WHAT DATE YOU HAD THE HAIRCUT?

26 A. IT IS JANUARY 26TH.

27 Q. DOES IT EVEN GIVE YOU THE TIME OF AT LEAST PAYING

28 FOR IT?
3845
1 A. YES. IT SAYS 14:38.

2 Q. WHERE WAS THE HAIRCUT?

3 A. HAIR CAMELOT.

4 Q. JUST TO BE SURE, WHAT YEAR?

5 A. JANUARY 26TH, ’02.

6 Q. THANK YOU, MA’AM.

7 WHEN SHE GOT HER HAIRCUT, HOW MUCH HAIR WAS CUT

8 OFF?

9 A. FOUR — FOUR OR MORE INCHES.

10 Q. AND AFTER SHE GOT HER HAIRCUT, ABOUT HOW LONG WAS

11 HER HAIR?

12 A. SHOULDER LENGTH.

13 Q. CAN YOU ESTIMATE FOR US HOW LONG THAT WOULD BE IN

14 INCHES?

15 A. NO. EIGHT?

16 Q. AND BEFORE SHE HAD HER HAIRCUT, WOULD YOU ESTIMATE

17 FOR US HOW LONG IT WAS?

18 A. IT WAS AROUND SEPTEMBER.

19 Q. ALL RIGHT. AND HOW LONG WAS HER HAIR BEFORE SHE

20 HAD IT CUT?

21 A. DOWN TO THE MIDDLE OF HER BACK.

22 Q. DID YOU HAVE ANY PHOTOGRAPHS TAKEN OF HER BEFORE

23 HER HAIRCUT?

24 A. YES.

25 Q. WHAT PICTURES WERE THOSE?

26 A. HER SCHOOL PICTURES.

27 Q. DID YOU FIND A PICTURE FOR US AND PROVIDE IT TO US?

28 A. YES.
3846
1 (MARKED FOR ID: = TRIAL EX. 32, PHOTO-DANIELLE)

2 Q. I’VE HAD MARKED AS COURT’S EXHIBIT 32 A PHOTOGRAPH.

3 DO YOU RECOGNIZE WHAT WE HAVE HERE, MS. VAN DAM?

4 A. YES, THAT’S DANIELLE.

5 Q. WHEN WAS THAT PHOTOGRAPH TAKEN?

6 A. IN OCTOBER.

7 Q. OCTOBER OF 2001?

8 A. OCTOBER OF 2001.

9 Q. AND DOES THAT PHOTOGRAPH ACCURATELY DEPICT HOW LONG

10 HER HAIR WAS IN OCTOBER?

11 A. YES.

12 Q. DID SHE HAVE HER HAIRCUT AT ANY TIME AFTER THE

13 OCTOBER PHOTOGRAPH UNTIL YOU HAD HER HAIRCUT IN JANUARY?

14 A. NO.

15 Q. DID YOU DO ANY TRIMMING OR SNIPPING ON IT?

16 A. NO.

17 Q. WHAT COLOR WAS HER HAIR?

18 A. BROWNISH BLONDE.

19 Q. AND YOUR TWO BOYS, WHAT COLOR WAS THEIR HAIR?

20 A. BLOND BLOND.

21 Q. HOW LONG IS DYLAN’S HAIR?

22 A. SPIKED.

23 Q. WHICH MEANS?

24 A. IT MEANS IT’S VERY SHORT.

25 Q. VERY SHORT MEANS HOW LONG?

26 A. MAYBE AN INCH ON TOP.

27 Q. AND THE OTHER BOY, HOW LONG WAS HIS HAIR?

28 A. ABOUT AN INCH AND A HALF ON TOP.
3847
1 Q. HOW LONG HAS THEIR HAIR BEEN THAT SHORT?

2 A. FOR A COUPLE YEARS.

3 Q. DID YOU HAVE ANY PHOTOGRAPHS SHOWING HOW LONG THEIR

4 HAIR WAS IN RELATION TO DANIELLE’S HAIR?

5 A. YES.

6 Q. DID YOU PROVIDE ME WITH THAT PHOTOGRAPH?

7 A. YES.

8 (MARKED FOR ID: = TRIAL EX. 33, PHOTO VAN DAM KIDS )

9 Q. I’VE HAD MARKED AS COURT’S EXHIBIT 33 ANOTHER

10 PHOTOGRAPH DEPICTING DANIELLE AND THE TWO BOYS.

11 DO YOU RECOGNIZE WHAT WE HAVE THERE, MS. VAN DAM?

12 A. THAT’S A SCHOOL PICTURE.

13 Q. WAS THAT TAKEN AT THE SAME TIME DANIELLE’S PICTURE

14 IN 32 WAS TAKEN.

15 A. YES, IT WAS.

16 Q. AND THE BOYS THERE, WHICH ONE IS ON THE LEFT?

17 A. THAT’S DYLAN.

18 Q. DOES THAT SHOW HOW LONG HIS HAIR WAS FOR THE PAST

19 SEVERAL YEARS?

20 A. YES.

21 Q. THE BOY ON THE RIGHT IS —

22 A. THAT’S DEREK.

23 Q. DOES THAT SHOW HOW LONG HIS HAIR WAS FOR THE PAST

24 COUPLE YEARS?

25 A. YES.

26 Q. YOUR HAIR COLOR IS WHAT?

27 A. BLONDE.

28 Q. IS IT CHEMICALLY TREATED?
3848
1 A. YES.

2 Q. HOW LONG HAS IT BEEN TREATED THAT WAY?

3 A. FOR YEARS.

4 MR. DUSEK: MAY I HAVE A MOMENT, YOUR HONOR?

5 THE COURT: SURE.

6 (PAUSE)

7 MR. DUSEK: NO FURTHER QUESTIONS, YOUR HONOR.

8 THE COURT: ALL RIGHT. CROSS-EXAMINATION.

9

10 CROSS-EXAMINATION +

11 BY MR. FELDMAN:

12 Q. GOOD MORNING, MA’AM.

13 A. GOOD MORNING.

14 Q. PLEASE TELL ME IF ANY OF THIS BECOMES DIFFICULT,

15 AND I’D ASK THE JUDGE TO RECESS OR WE CAN ASK THE JUDGE TO

16 RECESS, OKAY?

17 A. OKAY.

18 Q. BEFORE YOU CAME TO COURT TODAY DID YOU TALK TO

19 ANYBODY ABOUT THE SUBJECT MATTER OF YOUR TESTIMONY?

20 A. YES.

21 Q. WHO?

22 A. JEFF DUSEK.

23 Q. APPROXIMATELY HOW MANY TIMES?

24 A. ONCE THIS MORNING.

25 Q. YOU HAVE NOT TALKED TO HIM ABOUT THE CASE BUT ONCE

26 THIS MORNING, MA’AM?

27 A. WOULD YOU REPEAT THAT QUESTION?

28 Q. YES. ARE YOU TELLING US THAT YOU’VE ONLY SPOKEN
3849
1 WITH MR. DUSEK ONE TIME ABOUT THE CASE, AND IT WAS JUST THIS

2 MORNING?

3 A. I’VE TALKED TO HIM ON OTHER OCCASIONS.

4 Q. APPROXIMATELY HOW MANY?

5 A. THAT’S HARD TO GIVE YOU. I DON’T KNOW.

6 Q. TEN, 15, 20?

7 A. TEN.

8 Q. WITH REGARD TO THOSE COMMUNICATIONS, THEY STARTED

9 BACK IN FEBRUARY, DIDN’T THEY?

10 A. YES.

11 Q. AND MOST RECENTLY, WITHIN THE PAST – I GUESS TWO OR

12 THREE DAYS — DID YOU HAVE OCCASION TO COME DOWN TO THE DISTRICT

13 ATTORNEY’S OFFICE AND MEET WITH MR. DUSEK WITH YOUR HUSBAND?

14 A. YES.

15 Q. AND DID YOU, IN ADDITION I THINK YOU TOLD ME

16 YESTERDAY YOU SPOKE TO MR. DUSEK. A COUPLE OF DAYS AGO, MEANING

17 TWO OR THREE, DID YOU ALSO SPEAK WITH MR. DUSEK CONCERNING ANY

18 ASPECT OF THE CASE?

19 A. YES.

20 Q. WHO WAS PRESENT A COUPLE, THREE DAYS AGO WHEN YOU

21 SPOKE WITH MR. DUSEK?

22 A. DAMON.

23 Q. SO YOU SPOKE WITH DAMON AND MR. DUSEK CONCERNING

24 THE CASE, IS THAT ABOUT IT?

25 A. NOT AT THE SAME TIME.

26 Q. YOU WERE SEPARATED, IS THAT RIGHT?

27 A. YES.

28 Q. AND DURING THE COURSE OF YOUR CONVERSATION WITH MR.
3850
1 DUSEK, DID HE AT LEAST APPRISE YOU OF WHAT QUESTIONS MIGHT BE

2 COMING TO YOU?

3 A. YES.

4 Q. DID HE DISCUSS WITH YOU THE EXHIBITS THAT WERE

5 GOING TO BE PRESENTED TO YOU?

6 A. YES.

7 Q. DID HE DISCUSS WITH YOU SOME OF THE

8 CROSS-EXAMINATION THAT MIGHT BE COMING YOUR WAY?

9 A. NO.

10 Q. PRIOR TO COMING TO COURT TODAY, HAVE YOU REVIEWED

11 ANY DOCUMENTS OF ANY KIND TO HELP YOU REMEMBER WHAT HAPPENED?

12 A. YES.

13 Q. PLEASE TELL US WHAT.

14 A. THE STATEMENTS THAT WERE MADE WHEN DANIELLE WAS

15 MISSING AND THE PRELIM STATEMENT.

16 Q. WHEN YOU SAY THE STATEMENTS THAT WERE MADE WHEN

17 DANIELLE WAS MISSING, ARE YOU REFERRING, MA’AM, TO THE POLICE

18 REPORTS?

19 A. THE POLICE REPORTS.

20 Q. DID YOU ALSO HAVE THE OPPORTUNITY TO REVIEW AUDIO

21 TAPE-RECORDINGS OF THE STATEMENTS THAT YOU MADE TO THE POLICE?

22 A. NO.

23 Q. DID YOU REVIEW TRANSCRIPTS OF AUDIO TAPE-RECORDINGS

24 THAT YOU MADE FOR THE POLICE?

25 A. YES.

26 Q. DID YOU ALSO REVIEW REPORTS THAT THE POLICE WROTE

27 AS YOU WERE COMMUNICATING WITH THEM?

28 A. YES.
3851
1 Q. YOU SAID THAT YOU ALSO REVIEWED THE PROCEEDINGS AT

2 THE PRELIMINARY HEARING; IS THAT CORRECT?

3 A. ONLY MY STATEMENT.

4 Q. YOUR TESTIMONY?

5 A. MY TESTIMONY.

6 Q. SO WHAT YOU’RE TELLING US THEN IS THAT ON A PRIOR

7 OCCASION YOU HAVE TESTIFIED UNDER OATH CONCERNING THE SUBJECT

8 MATTER OF THIS CASE, IS THAT RIGHT?

9 A. YES.

10 Q. AND THAT WAS AT WHAT WE CALL THE PRELIMINARY

11 HEARING, IS THAT RIGHT?

12 A. YELL.

13 Q. DURING THE PRELIMINARY HEARING DO YOU FEEL THAT

14 YOUR MEMORY WAS BETTER THAN IT IS TODAY CONCERNING THE SUBJECT

15 MATTER OF —

16 A. IT WAS ABOUT THE SAME.

17 Q. DO YOU FEEL THAT YOUR MEMORY HAS NOT FADED WITH

18 TIME?

19 A. NO.

20 Q. WHEN YOU SAY NO, DO YOU MEAN TO COMMUNICATE THAT

21 YOU FEEL YOUR MEMORY HAS FADED WITH TIME OR IT HAS NOT FADED

22 WITH TIME?

23 A. IT HAS NOT FADED WITH TIME.

24 Q. I WANT TO SWITCH JUST FOR A MOMENT.

25 YOU MENTIONED TO MR. DUSEK — MR. DUSEK JUST ASKED

26 YOU WHETHER YOU HAD GIVEN LAW ENFORCEMENT PERMISSION TO

27 TAPE-RECORD YOUR TELEPHONE. DO YOU RECALL THAT QUESTION?

28 A. I DO.
3852
1 Q. DO YOU RECALL AT SOME POINT IN TIME, AT LEAST

2 UNDERSTANDING THAT THERE HAD BEEN SOME FORM OF EITHER PHONE

3 TRAP, PHONE TRACE OR PHONE TAPS ON YOUR TELEPHONES?

4 A. NO.

5 Q. DIRECTING YOUR ATTENTION TO APPROXIMATELY THE 16TH

6 OF FEBRUARY 2002, DO YOU RECALL GETTING A TELEPHONE CALL, A

7 MESSAGE CONCERNING YOUR DAUGHTER?

8 MR. DUSEK: OBJECTION, HEARSAY, BEYOND THE SCOPE, THIRD

9 PARTY.

10 THE COURT: COUNSEL, I’LL HEAR YOU AT SIDEBAR.

11

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13 (PROCEEDINGS NOT PART OF PUBLIC RECORD.)

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3853
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3854
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25 (THE FOLLOWING PROCEEDINGS WERE HELD IN
OPEN COURT IN THE PRESENCE OF THE JURY:)
26

27 MR. FELDMAN: PROCEED, YOUR HONOR?

28 THE COURT: YES, PLEASE.
3855
1 BY MR. FELDMAN:

2 Q. A COUPLE OF OTHER POINTS — I WANT TO MOVE ON

3 BEFORE WE BREAK FOR LUNCH, THEN WE’LL GO CHRONOLOGICALLY AGAIN.

4 WERE THERE TIMES IN YOUR NEIGHBORHOOD WHEN YOU

5 WOULD GO FOR WALKS WITH THE DOG AND THE CHILDREN?

6 A. THERE WERE A FEW.

7 Q. WHEN YOU SAY A FEW, WHAT NUMBER DO YOU MEAN TO

8 COMMUNICATE?

9 A. MAYBE TWO.

10 Q. WERE THERE TIMES WHEN, TO YOUR KNOWLEDGE, YOUR

11 HUSBAND WOULD GO FOR WALKS IN THE NEIGHBORHOOD WITH THE DOG?

12 A. YES.

13 Q. AND WOULD THAT BE A FAIRLY, I DON’T KNOW, REGULAR

14 THING TO DO WITH THE FAMILY?

15 A. NO.

16 Q. DO YOU KNOW WHETHER OR NOT, ON THOSE OCCASIONS WHEN

17 YOU WALKED WITH THE DOG, WHETHER THE DOG WAS ON A LEASH?

18 A. YES.

19 Q. AND WAS THE DOG WALKED IN THE DIRECTION OF BRIAR

20 LEAF?

21 A. YES.

22 Q. AND THE DOG WAS THEN WALKED PAST MR. WESTERFIELD’S

23 HOUSE?

24 A. I DON’T KNOW.

25 Q. THERE IS A PARK AT THE END OF THE STREET, ISN’T

26 THERE?

27 A. YES.

28 MR. FELDMAN: YOUR HONOR, YOU MIGHT WANT TO JUST LET ME
3856
1 LOOK THROUGH THESE MANUALLY.

2 THE COURT: SURE.

3 MR. FELDMAN: I’M TRYING TO KEEP HER FROM HAVING TO LOOK.

4 THE COURT: OKAY.

5 MR. DUSEK: THOSE ARE UP HERE. THE ONES YOU’RE AVOIDING.

6 MR. FELDMAN: OH, OKAY. THANK YOU.

7 Q. MA’AM, I HAVE IN MY HAND — IT’S OKAY — WHAT’S

8 BEEN PREVIOUSLY MARKED COURT EXHIBIT 1.

9 DO YOU RECOGNIZE COURT EXHIBIT 1?

10 A. YES.

11 Q. THIS IS AN OVERHEAD OF YOUR NEIGHBORHOOD, ISN’T IT?

12 A. YES.

13 Q. THERE USED TO BE A POINTER — I GUESS TO YOUR HARD

14 RIGHT.

15 DO YOU SEE YOUR HOUSE IN ANY OF THESE PHOTOGRAPHS?

16 A. IT’S RIGHT THERE.

17 Q. OKAY.

18 YOU JUST SAID RIGHT THERE?

19 A. IT’S IN EXHIBIT “B.”

20 MR. FELDMAN: SO, FOR THE RECORD, THE WITNESS HAS POINTED

21 TO COURT 1 EXHIBIT “B.”

22 Q. THAT’S GOT A BIG “D” ON IT, RIGHT?

23 A. YES.

24 Q. I’D LIKE TO DIRECT YOUR ATTENTION TO THE AERIAL

25 THAT’S DEPICTED IN “A.” I’M TRYING TO TILT IT SO THE JURY CAN

26 SEE ALSO. CAN YOU SEE CLEARLY PHOTOGRAPH “A”, MA’AM, ON 1?

27 A. YES.

28 Q. DO YOU SEE IT APPEARS THERE’S A GREEN BELT — I’LL
3857
1 CALL IT A GREEN BELT — YES, YOU’RE POINTING NOW TO AN AREA TO

2 THE LOWER RIGHT — I’LL CALL IT THE LOWER RIGHT SIDE OF

3 PHOTOGRAPH “A” OF COURT 1, IS THAT A FAIR STATEMENT?

4 A. YES.

5 Q. THAT’S A PARK, ISN’T IT?

6 A. YES, IT IS.

7 Q. IT’S A PARK WHERE YOUR CHILDREN WOULD PLAY, ISN’T

8 IT?

9 A. YES.

10 Q. CAN YOU JUST LET — RUN THE POINTER UP SO THAT THE

11 JURY CAN SEE THE DISTANCE BETWEEN YOUR HOUSE AND THAT PARK, IF

12 YOU CAN, PLEASE.

13 A. (WITNESS COMPLYING.)

14 Q. NOT TOO FAR, RIGHT?

15 A. RIGHT.

16 Q. AND AS ONE MOVES, OR AS YOU MOVE YOUR POINTER, I’LL

17 SAY FROM BOTTOM TO TOP, YOU TRACK IT ALONG THE SIDEWALK; IS THAT

18 CORRECT?

19 A. YES.

20 Q. AND I’LL TAKE THIS AWAY JUST FOR A SECOND.

21 AS YOU MOVE IT PAST TO GET TO YOUR RESIDENCE, IT

22 PASSES MR. WESTERFIELD’S RESIDENCE, DOES IT NOT?

23 A. YES, IT DOES.

24 Q. HOW FREQUENTLY WOULD YOUR KIDS GO TO THE PARK?

25 A. RARELY. THEY’VE BEEN DOWN THERE MAYBE — IT WASN’T

26 VERY OFTEN. IT WASN’T A ROUTINE THING.

27 Q. AND FROM TIME TO TIME YOUR DAUGHTER WOULD PLAY IN

28 THAT PARK, IS THAT RIGHT?
3858
1 A. YES.

2 Q. AND FROM TIME TO TIME YOUR DAUGHTER WOULD PLAY IN

3 THE PARK WITH THE NEIGHBOR CHILDREN, ISN’T THAT RIGHT?

4 A. YES.

5 Q. THE COMMUNITY OF SABRE SPRINGS, ONE OF THE REASONS

6 YOU MOVED THERE WAS BECAUSE YOU UNDERSTOOD IT TO BE A FAMILY

7 COMMUNITY, IS THAT RIGHT?

8 A. YES.

9 Q. AND ONE OF THE BENEFITS OF SUCH A COMMUNITY IS TO

10 HAVE OTHER CHILDREN TO PLAY WITH FOR YOUR KIDS, IS THAT RIGHT?

11 A. YES.

12 Q. YOU TOLD US ON DIRECT EXAMINATION THAT APPARENTLY

13 THERE’S A SCHOOL THAT AT LEAST WAS WITHIN WALKING DISTANCE FROM

14 YOUR HOUSE, IS THAT RIGHT?

15 A. YES.

16 Q. SO YOUR CHILDREN’S — I MEAN, THIS IS GRAMMAR

17 SCHOOL, IT’S CALLED CREEKSIDE, ISN’T IT?

18 A. YES.

19 Q. THAT’S WITHIN WALKING DISTANCE OF YOUR HOUSE, IS IT

20 NOT?

21 A. YES.

22 Q. AND FROM TIME TO TIME YOUR DAUGHTER WOULD GO WALK

23 TO SCHOOL WITH HER BROTHER, IS THAT RIGHT?

24 A. YES.

25 Q. AND SHE ALSO WOULD WALK UP THE STREET TO ANOTHER

26 NEIGHBOR’S HOUSE, ISN’T THAT TRUE?

27 A. YES.

28 Q. THAT WOULD BE TAYLOR, IS THAT RIGHT?
3859
1 A. YES.

2 Q. WHO IS TAYLOR?

3 A. TAYLOR IS DANIELLE’S FRIEND FROM SCHOOL.

4 Q. AND TAYLOR LIVES AROUND THE CORNER OF THE HILL,

5 ISN’T THAT RIGHT?

6 A. YES, IT IS.

7 Q. I SHOULD HAVE LEFT THE PHOTO UP, I’M SORRY.

8 REDIRECTING YOUR ATTENTION TO EXHIBIT 1 — I’M

9 SORRY, I KNOW THIS HAS DONE WELL FOR MR. DUSEK BUT I’M

10 MECHANICALLY HANDICAPPED.

11 DO YOU SEE UP THE HILL, AS I JUST DESCRIBED IT,

12 WHERE YOU ARE — SORRY, MA’AM, EXCUSE ME. DO YOU SEE THE AREA

13 THAT —

14 A. YES.

15 Q. CAN YOU — I TRIED TO GIVE YOU THE POINTER BACK.

16 IF YOU COULD PLEASE SHOW US?

17 A. IT’S AROUND THIS CORNER AND UP HERE.

18 Q. OKAY.

19 YOU’RE POINTING TO A PHOTOGRAPH WHICH IS “D” IN

20 EXHIBIT 1; IS THAT CORRECT, MA’AM?

21 A. THAT’S CORRECT.

22 Q. AND WHEN YOU SAY “HERE,” YOU WERE POINTING TO THE

23 AREA I THOUGHT?

24 A. THIS IS OUR HOUSE, AND THEN AS YOU WALK AROUND THIS

25 CORNER AND UP THE HILL TO TAYLOR’S.

26 Q. ALL RIGHT.

27 WHEN YOU SAID “THIS IS OUR HOUSE,” YOU HAD THE

28 POINTER AT THE “VD”; IS THAT CORRECT?
3860
1 A. THAT’S CORRECT.

2 Q. YOU MOVED THE POINTER UP WHAT APPEARS TO BE THE

3 SIDEWALK UPWARD ON THE PHOTOGRAPH, CORRECT?

4 A. CORRECT.

5 Q. AND THEN WHEN YOU SAID SHE WALKED UP THE STREET, WE

6 CAN SEE MY HAND MOVES TO THE LEFT, IS THAT RIGHT?

7 A. CORRECT.

8 Q. I’M JUST TRYING TO DESCRIBE IT FOR THE RECORD,

9 MA’AM?

10 A. OKAY.

11 Q. THAT’S RIGHT ACROSS THE STREET, ISN’T IT, FROM MR.

12 WESTERFIELD’S RESIDENCE?

13 A. YES, IT IS.

14 Q. I THINK YOU TOLD MR. DUSEK — I’M JUST GOING TO

15 LEAVE THAT UP THERE FOR NOW — THAT YOU WERE AWARE THAT MR.

16 WESTERFIELD HAD A MOTOR HOME?

17 A. YES.

18 Q. HOW DID YOU KNOW THAT?

19 A. BECAUSE HE LEAVES IT IN FRONT OF HIS HOUSE.

20 Q. IN FACT, HE LEFT IT IN FRONT OF HIS HOUSE SO

21 FREQUENTLY THAT FROM TIME TO TIME THE NEIGHBORS COMPLAINED ABOUT

22 IT, ISN’T THAT RIGHT?

23 A. CORRECT.

24 Q. AND YOU YOURSELF HAD CONVERSATIONS WITH, FOR

25 INSTANCE, RICH BRADY?

26 A. YES.

27 Q. ABOUT THAT IT WAS KIND OF AN EYE SORE BECAUSE IT

28 WAS ALWAYS THERE, ISN’T THAT CORRECT?
3861
1 A. YES.

2 Q. ALSO WITH REGARD TO WHERE YOUR DAUGHTER COULD WALK,

3 WAS THERE ANOTHER FRIEND WHO SHE TOOK — SARAH FROM WHOM SHE

4 TOOK PIANO LESSONS?

5 A. NO.

6 Q. WAS THERE A FRIEND NAMED SARAH?

7 A. THERE WAS A FRIEND NAMED SARAH.

8 Q. WHERE DOES SARAH LIVE IN RELATION TO THE OTHERS, IF

9 YOU CAN TELL US?

10 A. SARAH’S HOUSE IS ACTUALLY NOT ON HERE.

11 Q. WELL, IS IT CORRECT THAT YOUR DAUGHTER WOULD WALK

12 TWO DOORS DOWN TO HER PIANO LESSON, FOR INSTANCE?

13 A. YES, SHE WOULD.

14 Q. AND THAT FROM TIME TO TIME SHE WOULD WALK TO

15 SARAH’S HOUSE?

16 A. I DON’T THINK SHE’S EVER WALKED TO SARAH’S HOUSE.

17 Q. OKAY. THE WINNEBAGO — I’M SORRY, THE MOTOR HOME

18 THAT WAS PROBLEMATIC THAT I JUST TALKED TO YOU ABOUT INVOLVING

19 YOUR DISCUSSIONS WITH RICH BRADY, NOT ONLY WOULD YOU COMPLAIN

20 ABOUT WHAT AN EYE SORE THE MOTOR HOME WAS, WOULDN’T RICH ALSO

21 COMPLAIN TO YOU ABOUT WHAT AN EYE SORE IT WAS?

22 A. YES.

23 Q. YOUR RELATIONSHIP TO RICH BRADY, WHAT’S YOUR

24 RELATIONSHIP TO HIM, MA’AM?

25 A. I’M FRIENDS WITH HIS WIFE.

26 Q. AND HE’S ALSO THE SOURCE FOR YOUR MARIJUANA, ISN’T

27 HE?

28 A. I GOT IT FROM HIM THAT NIGHT, YES.
3862
1 Q. THAT NIGHT — I’M SORRY. DID YOU JUST TELL US THAT

2 FROM RICH BRADY ON FEBRUARY THE 1ST YOU PURCHASED MARIJUANA?

3 A. NO.

4 Q. YOU SAID YOU GOT IT FROM HIM ON THAT NIGHT. COULD

5 YOU PLEASE TELL ME WHAT NIGHT YOU’RE REFERRING TO?

6 A. I REPHRASED — I PHRASED IT WRONG, BUT WHAT I HAD

7 ON THAT NIGHT DID COME FROM RICH BRADY.

8 Q. WHEN DID YOU GET IT?

9 A. I DON’T KNOW.

10 Q. WAS IT A WEEK BEFORE?

11 A. HONESTLY, I DON’T KNOW.

12 Q. WAS IT IN TIME TO USE FOR THE 25TH WHEN DENISE AND

13 BARBARA CAME OVER?

14 A. I DON’T KNOW.

15 Q. BY YOUR ANSWER “I DON’T KNOW” DO YOU MEAN TO

16 COMMUNICATE THAT IT’S POSSIBLE THAT IT COULD HAVE BEEN, OR YOU

17 JUST DON’T REMEMBER WHETHER OR NOT THAT’S THE CASE?

18 A. I DON’T REMEMBER WHETHER OR NOT IT IS THE CASE.

19 Q. IS THAT MOTOR HOME — I’M SORRY, BACK TO THE MOTOR

20 HOME. THAT MOTOR HOME, IN YOUR VIEW, MR. WESTERFIELD, HE’D

21 LEAVE HIS MOTOR HOME SITTING THERE FOR SO MANY HOURS THAT IT DID

22 PROVOKE SOME KIND OF A NEIGHBORHOOD REACTION, ISN’T THAT RIGHT?

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

24 THE COURT: BE MORE SPECIFIC AND I’LL ALLOW IT, COUNSEL.

25 SUSTAINED.

26 BY MR. FELDMAN:

27 Q. IN THE SEVERAL MONTHS PRECEDING THE DISAPPEARANCE

28 OF YOUR DAUGHTER, IT’S CORRECT THAT IN YOUR VIEW MR. WESTERFIELD
3863
1 COULD LEAVE HIS MOTOR HOME SITTING IN FRONT OF HIS HOUSE FOR SO

2 MANY HOURS WHEN ALL HE HAD TO DO WAS DRIVE IT OFF AND MOVE IT

3 AROUND SO THAT IT COULD MAKE IT LEGAL?

4 MR. DUSEK: STILL VAGUE AS TO WHEN.

5 THE COURT: OVERRULED.

6 YOU CAN ANSWER. YOU MAY ANSWER, MA’AM.

7 THE WITNESS: APPARENTLY, MR. WESTERFIELD KNEW HOW MANY

8 DAYS HE COULD LEAVE IT IN ONE POSITION AND HOW MANY DAYS IN

9 ANOTHER AND HE TOOK THAT TO HIS ADVANTAGE.

10

11 BY MR. FELDMAN:

12 Q. WHAT DO YOU MEAN BY THAT, MA’AM?

13 A. HE WOULD MOVE IT FROM ONE SPOT TO THE OTHER.

14 Q. I’M SORRY. WHEN YOU SAID “ONE SPOT TO THE OTHER”

15 WHAT DOES THAT MEAN?

16 A. IT WOULD BE IN FRONT OF HIS HOUSE OR ON THE SIDE OF

17 HIS HOUSE.

18 Q. SO IF IT WAS IN THE FRONT OF HIS HOUSE, HE COULD

19 LEAVE IT FOR A PERIOD OF TIME, AND THEN IF HE MOVED IT TO THE

20 SIDE OF HIS HOUSE IT COULD BE THERE FOR AN ADDITIONAL PART OF

21 TIME, IS THAT RIGHT?

22 A. YES.

23 Q. AND JUST AS PART OF YOUR COMMUNITY THERE ARE

24 COVENANTS, RESTRICTIONS AND RESTRICTIONS ABOUT WHAT PEOPLE CAN

25 AND CAN’T DO?

26 A. YES.

27 Q. SO THE PRESENCE OF THE MOTOR HOME AT A SPECIFIC

28 LOCATION IS PERMITTED BY YOUR COVENANTS AND RESTRICTIONS.
3864
1 MR. DUSEK: OBJECTION, YOUR HONOR.

2 THE COURT: SUSTAINED. YOU NEED NOT ANSWER, MA’AM.

3 MR. FELDMAN: WOULD THIS BE APPROPRIATE?

4 THE COURT: YES. JUROR SEVEN, WE TALKED TO YOUR EMPLOYER

5 AND EVERYTHING’S SET.

6 JUROR NO. 7: THANK YOU.

7 THE COURT: LADIES AND GENTLEMEN, PLEASE REMEMBER THE

8 ADMONITION OF THE COURT NOT TO DISCUSS ANY OF THE EVIDENCE OR

9 TESTIMONY AMONG YOURSELVES OR WITH ANY OTHER PERSONS.

10 THE ATTORNEYS AND I HAVE A FEW THINGS TO DEAL WITH

11 SO WE’LL STILL BE HERE, BUT WE’LL MAKE IT 1:30 AS ALWAYS, SO YOU

12 CAN RELY ON THAT. HAVE A PLEASANT LUNCH. BE OUTSIDE THE DOOR

13 AT 1:30.

14 MRS. VAN DAM, YOU CAN TALK TO MR. DUSEK AND ARRANGE

15 FOR WHERE HE WANTS YOU AFTER LUNCH SO YOU DON’T NEED TO SIT

16 THROUGH ALL THIS.

17

18 (AT 11:57 A.M. THE JURY WAS EXCUSED
AND THE FOLLOWING PROCEEDINGS WERE HAD:)
19

20 THE COURT: THE RECORD SHOULD REFLECT THAT THE JURORS AND

21 ALTERNATES HAVE LEFT THE COURTROOM.

22 COUNSEL, IT’S BEEN BROUGHT TO MY ATTENTION THAT WE

23 APPARENTLY HAVE A GUEST CHARACTER ARTIST IN THE COURTROOM THAT

24 IS ACTUALLY ATTEMPTING TO DRAW LIKENESSES OF THE JURORS.

25 IS THAT CORRECT, MIKE?

26 THE BAILIFF: YES, YOUR HONOR.

27 THE COURT: NOW, THE SKETCH ARTIST I’VE SEEN, I COULD DO

28 A BETTER JOB, BUT I HAVE A STANDING ORDER, MA’AM, THAT THESE
3865
1 JURORS ARE NOT TO BE PHOTOGRAPHED, DEPICTED IN ANY WAY. BUT

2 YOU’LL NOTE THAT THE SKETCH ARTIST YOU’VE ALREADY SEEN HAD BLANK

3 FACES.

4 SO, IF THERE IS ANY CHARACTER OF ANY OF THE JURORS,

5 MIKE, I WANT IT CONFISCATED AND HELD UNTIL THE END OF THIS

6 TRIAL.

7 THE BAILIFF: YES, YOUR HONOR.

8 THE COURT: AND IF YOU SEE ANY MORE OF IT, BRING IT TO MY

9 ATTENTION AS WELL.

10 I DON’T KNOW WHAT THE PURPOSE IS. I DON’T KNOW

11 WHAT THE ORGANIZATION IS. IT MIGHT BE JUST OF GENERAL INTEREST.

12 BUT IF IT’S SOMEBODY TRYING TO FIGURE OUT WHO THESE PEOPLE ARE,

13 I’D LIKE TO KNOW.

14 ALL RIGHT. WE’LL BE IN RECESS UNTIL 1:30.

15 MR. FELDMAN: YOUR HONOR, THERE’S AN ISSUE THAT CAME UP

16 ON DIRECT EXAMINATION. MAYBE WE COULD COME BACK IN AT 25 AFTER

17 OR HAVE THE JURY — HAVE THE JURY COME BACK FIVE MINUTES LATER,

18 OR I’LL DEFER IT AND WAIT FOR A BREAK.

19 THE COURT: NO. WE’LL DEAL WITH IT BEFORE THEY COME IN

20 AT — WELL, WHY DON’T YOU JUST BE HERE AT 1:15.

21 MR. FELDMAN: I NEED TO PICK SOME STUFF UP TO DELIVER TO

22 THE COURT. I DON’T KNOW IF I CAN BE BACK BY 1:15, YOUR HONOR.

23 THE COURT: THEN WE’LL TAKE IT UP AT AN APPROPRIATE

24 BREAK.

25 ALL RIGHT. WE’LL BE IN RECESS TILL 1:30.

26 MR. FELDMAN: THANK YOU.

27 (AT 12:00 P.M. THE NOON RECESS WAS
TAKEN UNTIL 1:30 P.M. OF THE SAME DAY.)
28

10 - Day 3- June 6th 2002 - Transcript criminal trial David Westerfield
08 - Day 3- June 6th 2002 - Transcript criminal trial David Westerfield