03093 – September 3rd 2002 – penalty phase – David Westerfield trial – morning 3

SAN DIEGO, CALIFORNIA, TUESDAY, SEPTEMBER 3, 2002, (morning 3)


Penalty phase September 3rd 2002 – 3


Alden John Miller, Michael Miller (Westerfield’s friends)


THE COURT: OKAY. WELCOME BACK, LADIES AND GENTLEMEN.
ALL RIGHT. MR. FELDMAN.
MR. FELDMAN: A. J. MILLER, PLEASE.

ALDEN JOHN MILLER,
CALLED AS A WITNESS BY THE DEFENDANT, HAVING BEEN DULY SWORN, TESTIFIED AS FOLLOWS:
THE CLERK: SIR, WOULD YOU PLEASE STATE YOUR NAME AND SPELL IT FOR THE RECORD.
THE WITNESS: MY NAME IS ALDEN JOHN MILLER, BUT MY FAMILY AND FRIENDS KNOW ME AS A. J. AND IT’S SPELLED — WANT ME TO GO WITH ALDEN JOHN. A-L-D-E-N J-O-H-N M-I-L-L-E-R. DIRECT EXAMINATION
BY MR. FELDMAN:
Q.:SIR, YOUR FOLKS ARE IN THE COURTROOM?
A.:YES.
Q.:YOUR BROTHER’S OUTSIDE?
A.:YES, SIR.
Q.:WHEN DID YOU GET TO TOWN?
A.:I ARRIVED MONDAY MORNING.
Q.:YESTERDAY MORNING?
A.:CORRECT.
Q.:WHERE DID YOU COME FROM?
A.:I JUST RETURNED FROM A WILDERNESS TRIP. I CONDUCT WILDLIFE SURVEYS UP IN EASTERN WASHINGTON.
Q.:WHAT’S YOUR OCCUPATION?
A.:I’M A WILDLIFE BIOLOGIST.
Q.:DO YOU KNOW DAVID WESTERFIELD?
A.:YES, I DO.
Q.:HOW IS IT YOU MET DAVID WESTERFIELD?
A.:I MET DAVID WESTERFIELD WHEN WE MOVED TO SAN DIEGO, POWAY. AND WHEN I WAS ABOUT THIRTEEN IN 1996.
Q.:WITH REGARD TO MR. WESTERFIELD, DID YOU EVER DO — HELP YOU OUT IN ANY PARTICULAR WAY?
A.:FROM THE GET-GO DAVID’S BEEN A FRIEND AND A PEER. AS SOON AS WE MOVED IN THE AREA, HE WAS JUST RIGHT THERE TO HELP US MOVE IN, FEEL COMFORTABLE WITH THE AREA. WE HAVE A LOT OF SIMILAR INTEREST, SO I FELT VERY COMFORTABLE AND CREATED A BOND IMMEDIATELY.
Q.:SIMILAR INTERESTS. YOU SAID YOU WERE A WILDLIFE BIOLOGIST. WE’VE HEARD TESTIMONY THAT HE HAD SOME BIRDS AT SOME POINT. IS THAT SOMETHING YOU WERE THINKING OF?
A.:ABSOLUTELY. THE BIRDS, THE AVIARY WAS — I VERY MUCH ENJOYED THAT. BUT ALSO —
Q.:I WANT TO STOP YOU. I’M SORRY.
YOU SAID THE AVIARY YOU VERY MUCH ENJOYED. TELL US ABOUT THAT. WE HAVEN’T HEARD. WHAT AVIARY ARE YOU TALKING ABOUT?
A.:HE HAD ACTUALLY CONSTRUCTED AN AVIARY THAT WAS VERY INTRICATE. IT WAS A BIG, BOY, ALMOST LIKE A GAZEBO-TYPE MATERIAL. BUT IT HAD WIRING MESH TO KEEP THE BIRDS ENCLOSED AND HAD SEVERAL SPECIES OF BIRDS. I DON’T RECALL RIGHT NOW. BUT I GOT TO WATCH THE KIDS INTERACT AT A YOUNG AGE. AND I WAS VERY PASSIONATE ABOUT WILDLIFE AND BIRDS, PARTICULARLY. THAT’S MY SPECIALTY RIGHT NOW.
Q.:WERE THERE TIMES THROUGH YOUR TEENAGE YEARS THAT YOU REBELLED AGAINST YOUR PARENTS?
A.:CERTAINLY.
Q.:IF YOU WERE ENGAGED IN SOME REBELLIOUS BEHAVIOR, WOULD YOU TALK TO MR. WESTERFIELD ABOUT IT? DID HE HAVE ANYTHING TO DO WITH THAT?
A.:EXCUSE ME FOR A MOMENT.
YEAH. AS A YOUNG KID I DIDN’T NECESSARILY ALWAYS WANT TO GO TO MY PARENTS, YOU KNOW, FOR ISSUES THAT I MAY NOT AGREE WITH THEM ON. WE DON’T ALWAYS SEE EYE TO EYE. SO I WOULD GO TO DAVID BECAUSE I FELT VERY COMFORTABLE WITH HIM. AND I COULD USE HIM AS A SOUNDING BOARD AND BOUNCE THINGS OFF OF HIM AND GET ANOTHER OPINION. WHETHER I AGREED WITH IT OR NOT, IT JUST WAS A VERY COMFORTABLE PLACE TO GO.
Q.:WOULD YOU ALSO SOCIALIZE WITH DAVID FROM TIME TO TIME?
A.:ABSOLUTELY.
Q.:I WOULD LIKE TO SHOW YOU A COUPLE OF PHOTOGRAPHS. FIRST ONE THAT’S MARKED 240. YOU NEED TO LOOK AT IT, BUT I WANT YOU TO BE ABLE TO SHOW IT TO THE JURY, PLEASE.
(PHOTOGRAPH MARKED TRIAL EXHIBIT NUMBER 240 FOR
IDENTIFICATION.)
BY MR. FELDMAN:
Q.:CAN YOU TELL ME WITH REGARD TO 240, WHAT DOES THAT PHOTOGRAPH DEPICT?
A.:THIS IS DAVID AND MY FAMILY IN THE PHOTO. IT’S DAVID ON THE FRONT, MY BROTHER ACTUALLY RIDING THE WINDSURFER, AND ME IN BACK. AND THIS IS OUT AT MISSION BAY HERE LOCALLY. AND DAVID HAD A LOT OF TOYS THAT I LOVED AND WISHED THEY WERE MINE. BUT A GREAT THING ABOUT DAVID WAS NOT ONLY DID I GET TO PARTICIPATE IN THESE ACTIVITIES I LOVED SO MUCH, HE INVOLVED MY FAMILY AND FRIENDS, OTHER PEOPLE THAT DIDN’T GET A CHANCE TO DO THESE THINGS. AND WE ALL GOT TO DO IT TOGETHER, WHICH WAS JUST AMAZING.
Q.:DIRECTING YOUR ATTENTION TO WHAT’S BEEN MARKED 241, SIR. DO YOU RECOGNIZE 241?
A.:YES.
(PHOTOGRAPH MARKED TRIAL EXHIBIT NUMBER 241 FOR
IDENTIFICATION.)
BY MR. FELDMAN:
Q.:CAN YOU TELL US WHAT’S 241.
A.:THIS IS A CHRISTMAS PARTY AT MY PARENTS’ HOUSE HERE IN SAN DIEGO. AND THIS HAPPENED TO BE ONE OF THE VERY FIRST TIMES — UP HERE IS MY NOW WIFE, AT THE TIME WAS MY GIRLFRIEND, LISA BETH. AND IT WAS ONE OF THE VERY FIRST TIMES I GOT TO INTRODUCE HER TO DAVID AND THE WESTERFIELDS, WHICH I HAD REALLY BEEN LOOKING FORWARD TO BECAUSE HE IS SUCH AN IMPORTANT ROLE IN MY LIFE.
Q.:WHO ELSE IS IN THE PICTURE?
A.:WE HAVE DAVID WESTERFIELD HERE. LISA. MY BROTHER.
Q.:I’M SORRY. YOUR BROTHER MICHAEL?
A.:MICHAEL MILLER. JACKIE WESTERFIELD, MYSELF, AND MY MOTHER.
Q.:WITH REGARD TO YOUR OBSERVATIONS OF DAVID, DID YOU EVER SEE HIM INTERACT WITH HIS CHILDREN?
A.:CERTAINLY.
Q.:HOW WOULD HE INTERACT WITH HIS KIDS?
A.:I WAS A BABYSITTER FOR THEM, SO I GOT TO SEE THEM ON MANY DIFFERENT LEVELS. BUT HE WAS JUST INCREDIBLE WITH HIS CHILDREN. HE — I GUESS IN THE — AS AN EXAMPLE, IF I CAN USE AN EXAMPLE, BEING A BABYSITTER, I’VE HAD OPPORTUNITY TO WATCH A LOT OF DIFFERENT KIDS. AND HIS KIDS WERE SO INTELLIGENT AND SO WELL DISCIPLINED AND BEHAVED, IT WAS AN HONOR TO ACTUALLY WATCH HIS KIDS COMPARED TO OTHER KIDS I’VE WATCHED IN THAT AREA.
Q.:IN THAT AREA. POWAY?
A.:POWAY, YEAH. OR ANY AREA I GUESS. BUT THAT WAS WHERE MY MAIN — AT THAT TIME I WATCHED A LOT OF KIDS ON TREERIDGE TERRACE HERE IN POWAY.
Q.:WAS THERE AN OCCASION WHEN YOU CAME TO SAN DIEGO TO CELEBRATE A SURPRISE PARTY FOR YOUR MOM?
A.:THAT’S CORRECT.
Q.:TELL US ABOUT THAT, PLEASE.
A.:YES. I CAME DOWN FROM COLLEGE, HUMBOLDT STATE UNIVERSITY, FOR MY MOM’S FIFTIETH BIRTHDAY. AND I DROVE DOWN BY MYSELF. AND DAVID WAS KIND ENOUGH TO — I DID IT AS A SURPRISE. I DIDN’T WANT TO LET HER KNOW. I WAS REALLY GOOD ABOUT TRYING TO SURPRISE HER. SO HE CREATED A FACILITY FOR US TO HAVE THE PARTY THERE AND TO HIDE FROM MY, YOU KNOW, OR TO BE INDISPOSED FROM MY MOTHER AT THE TIME SO I COULD SURPRISE HER WHEN SHE SHOWED UP.
Q.:IT WAS A GOOD SURPRISE?
A.:YES.
Q.:KEPT HER OFF GUARD?
A.:A GREAT MOMENT.
Q.:DID DAVID HAVE SOMETHING TO DO WITH THAT?
A.:HE HAD A LOT, A GREAT ROLE IN THAT. HE NOT ONLY DID PROVIDE THE PLACE, BUT ALL THE EQUIPMENT. AND, LET’S SEE, JUST HELPING ME PLAN THE WHOLE, ENTIRE ORDEAL.
Q.:WAS MR. WESTERFIELD PRESENT AT YOUR WEDDING?
A.:YES, HE WAS.
Q.:WHEN WAS YOUR WEDDING, SIR?
A.:DECEMBER 27TH, 1998.
Q.:AND DID MR. WESTERFIELD HELP IN ANY WAY AT THE WEDDING?
A.:HE HELPED OUT TREMENDOUSLY. I CAME DOWN, ACTUALLY FLEW DOWN SEVERAL TIMES FROM MY HOUSE DOWN IN PORTLAND. AND ALONG WITH THE EQUIPMENT AND THE SUPPLIES, HELPING MOVE THINGS IN, HELPED ORGANIZED. I GOT MARRIED IN MY PARENTS’ BACKYARD IN POWAY. AND SO HE HELPED PROVIDE ALL THAT EQUIPMENT AND HELPED US SET IT UP AND KEEP MY PARENTS FROM OVERSTRESSING, BECAUSE IT WAS A TREMENDOUS ORDEAL FOR THEM. AND ALSO BECAUSE WE HAD SO MANY FRIENDS AND RELATIVES COMING IN THE AREA, TO STAY AT THE HOUSE, HE PROVIDED MEANS TO KEEP THINGS NEAT AND, YOU KNOW, INDISPOSED AT THE TIME AND GIVE EXTRA LODGING TO.
Q.:YOU WERE AWARE THAT MR. WESTERFIELD GOT DIVORCED.
A.:YES.
Q.:DID HE TALK TO YOU ABOUT THAT OR AT LEAST HOW HE FELT ABOUT IT?
A.:NOT IN GREAT DETAIL, NO.
Q.:DO YOU CARE WHAT HAPPENS IN THIS CASE, SIR?
A.:ABSOLUTELY.
MR. FELDMAN: NOTHING FURTHER.
THE COURT: ALL RIGHT.
CROSS-EXAMINATION. CROSS-EXAMINATION
BY MR. DUSEK:
Q.:MR. MILLER, YOU TALKED ABOUT BABYSITTING HIS KIDS AND HOW GOOD HIS KIDS WERE. DO YOU RECALL THAT?
A.:YES.
Q.:WERE THEY HIS KIDS OR HIS AND JACKIE’S KIDS?
A.:HIS AND JACKIE’S KIDS.
Q.:DID JACKIE HAVE ANY RESPONSIBILITY FOR RAISING THOSE KIDS?
A.:ABSOLUTELY.
Q.:DID SHE HAVE ANY RESPONSIBILITY FOR HOW SMART THEY WERE?
A.:SURE.
Q.:DID SHE HAVE ANY RESPONSIBILITY FOR HOW WELL-BEHAVED THEY WERE?
A.:SURE.
Q.:HE WAS NOT TOTALLY RESPONSIBLE FOR THAT, WAS HE?
A.:AS AN INDIVIDUAL, NO.
Q.:HAVE YOU SEEN ANY OF THIS TRIAL ON T.V.?
A.:YES, SIR, I HAVE.
Q.:HOW MUCH?
A.:BOY, I COULDN’T PUT IT IN PERSPECTIVE. WITH MY CAREER, I AM AWAY FROM MY HOUSE AND TELEVISION QUITE A LOT. SO I TRY TO COME BACK AND GET TIDBITS HERE AND THERE.
Q.:AND WHERE DO YOU LIVE?
A.:I LIVE IN PORTLAND, OREGON.
Q.:HOW LONG HAVE YOU LIVED UP THERE?
A.:FOR FOUR YEARS NOW.
Q.:DID YOU GET TO SEE SOME OF THE GUILT PART OF THIS TRIAL?
MR. FELDMAN: SCOPE.
THE COURT: SUSTAINED.
BY MR. DUSEK:
Q.:HAVE YOU SEEN THE PENALTY PHASE, ANY OF THE WITNESSES IN THE PENALTY PHASE OF THIS TRIAL?
MR. FELDMAN: SCOPE.
MR. DUSEK: THAT’S WHAT WE’RE IN NOW.
THE COURT: OVERRULED.
HE CAN ANSWER THAT.
THE WITNESS: PARDON ME?
MR. DUSEK: THAT’S WHAT WE’RE IN NOW.
THE WITNESS: NO, SIR, I HAVE NOT.
BY MR. DUSEK:
Q.:YOU TALKED ABOUT THE SURPRISE BIRTHDAY PARTY FOR YOUR MOTHER. WAS IT YOUR IDEA TO PLAN THE PARTY?
A.:MOSTLY.
Q.:WHO ELSE?
A.:MY BROTHER, MY FATHER. DAVID WAS DEFINITELY A BIG PART IN THAT, BECAUSE HE KNEW ON SEVERAL OCCASIONS I’VE COME DOWN TO SURPRISE MY MOTHER FOR THANKSGIVING, OTHER OCCASIONS. SO I COORDINATE THROUGH HIM ACTUALLY BEFORE MY FAMILY.
Q.:SO IT WAS YOUR AND YOUR BROTHER’S IDEA FOR THIS FAMILY BIRTHDAY PARTY?
A.:NO, SIR. IT WAS MY IDEA. I WENT THROUGH DAVID WESTERFIELD; AND THEN ONCE I HAD THE BALL ROLLING, IF YOU DON’T MIND ME SAYING, I THEN WENT THROUGH MY FAMILY.
Q.:SO MR. WESTERFIELD WAS NOT RESPONSIBLE FOR BRINGING YOU INTO THIS BIRTHDAY PARTY PLANNING?
A.:NO, SIR.
Q.:ALL RIGHT.
DID HE SEEM TO UNDERSTAND HOW IMPORTANT IT WAS FOR A CHILD TO PLAN A BIRTHDAY FOR A PARENT?
A.:SURE. I MEAN AS A CHILD, I WAS MID-TEENAGER, GROWING INTO A YOUNG ADULT I LIKE TO THINK.
Q.:ALL RIGHT.
AND YOU WANTED TO DO THIS NICE THING FOR YOUR MOTHER, DIDN’T YOU?
A.:YES, SIR.
Q.:BECAUSE OF ALL THE GOOD THINGS SHE’S DONE FOR YOU OVER THE YEARS.
A.:ABSOLUTELY.
Q.:AND THIS WAS A CHANCE FOR YOU AS A SON TO HELP REPAY OR TO ACKNOWLEDGE YOUR LOVE FOR YOUR MOTHER, CORRECT?
A.:YES.
Q.:AND HE SEEMED TO UNDERSTAND THAT THAT WOULD BE IMPORTANT FOR YOU AND YOUR BROTHER TO DO, RIGHT?
A.:YES, SIR.
Q.:HOW DO YOU KNOW HE UNDERSTOOD THAT EXCHANGE?
MR. BOYCE: OBJECTION. RELEVANCE. 352.
THE COURT: OVERRULED.
YOU CAN ANSWER THAT, SIR.
THE WITNESS: CAN YOU ASK THE QUESTION AGAIN, PLEASE?
BY MR. DUSEK:
Q.:HOW DO YOU KNOW HE UNDERSTOOD THAT THIS WAS IMPORTANT FOR A CHILD TO DO FOR A MOTHER?
A.:I THINK JUST FROM MY STANDPOINT HE KNOWS HOW MUCH I LOVE MY MOTHER AND HOW CLOSE WE ARE, SO I’VE INTERACTED WITH HIM ENOUGH THAT HE KNOWS ME AND JUST IN INTERACTING WITH HIM HE KNEW IT WAS EXTREMELY IMPORTANT TO ME. VERY IMPORTANT.
Q.:SO HE UNDERSTOOD HOW STRONG THE PARENT/CHILD BOND COULD BE.
A.:SURE.
Q.:THE CHRISTMAS PHOTOGRAPH THAT YOU WERE SHOWN, HOW LONG AGO WAS THAT?
A.:I BELIEVE THAT WAS EITHER DECEMBER OF ’95 OR ’96.
Q.:IS THAT WHEN ALL OF THE KIDS WOULD COME HOME FOR CHRISTMAS WITH THEIR PARENTS?
A.:KIDS BEING?
Q.:YOU AND YOUR BROTHER.
A.:YES. I WAS FAR AWAY, SO THAT WAS ONE OF THE FEW TIMES I COULD COME HOME.
Q.:THAT WAS SOMETHING YOU LOOKED FORWARD TO AS A SON?
A.:YES.
Q.:AND WAS IT ALSO A CHANCE FOR YOU TO SEE YOUR BROTHER?
A.:SOMETIMES, YES.
Q.:THAT’S SOMETHING YOU LOOKED FORWARD TO?
A.:YES.
Q.:HOW MANY TIMES HAVE YOU BEEN ABLE TO COME HOME AND SPEND CHRISTMAS WITH YOUR PARENTS?
A.:OH, —
MR. FELDMAN: SCOPE. OBJECTION.
THE COURT: OVERRULED.
MR. FELDMAN: RELEVANCE.
THE COURT: OVERRULED.
YOU CAN ANSWER.
THE WITNESS: THROUGHOUT WHICH TIME PERIOD? UP TO NOW?
MR. DUSEK: SINCE YOU FINISHED COLLEGE. SINCE YOU MOVED AWAY FROM HOME.
THE WITNESS: SINCE COLLEGE IT’S BEEN VERY LIMITED.
BY MR. DUSEK:
Q.:BUT YOU ALWAYS COULD COME HOME IF YOU WANTED TO, COULDN’T YOU?
A.:NO. THERE’S OBLIGATIONS I HAVE. I HAVE A LIFE. I HAVE A JOB. I HAVE A WIFE NOW. IT’S NOT EASY TO NECESSARILY MEET THOSE TIMES. IN FACT, DECEMBER IS VERY TOUGH FOR MY WIFE AND I.
Q.:DO YOU HAVE ANY DAUGHTERS?
A.:NO, SIR.
Q.:YOU TALKED ABOUT A WEDDING.
A.:YES.
Q.:YOU GOT MARRIED HOW LONG AGO?
A.:DECEMBER, ’98.
Q.:AND MR. WESTERFIELD SOMEHOW HELPED OUT ON THAT ALSO?
A.:YES.
Q.:FROM YOUR OBSERVATIONS, HE WAS ABLE TO SEE HOW NEAT IT WAS FOR YOUR PARENTS TO BE AT YOUR WEDDING.
MR. BOYCE: OBJECTION. SPECULATION.
THE COURT: SUSTAINED.
BY MR. DUSEK:
Q.:WAS HE AT THE WEDDING?
A.:YES, SIR.
Q.:WHEN WAS THE LAST TIME YOU SAW THE DEFENDANT EXCEPT FOR THIS TRIP HERE?
A.:IT PROBABLY WAS TWO YEARS AGO. A GOOD FRIEND FROM MY SCHOOL GOT MARRIED HERE IN SAN DIEGO.
Q.:YOU CAME HOME FOR THAT?
A.:CORRECT.
Q.:AND JUST HAPPENED TO SEE HIM ON THAT OCCASION?
A.:I MAKE A POINT WHENEVER I COME TO THE AREA TO SEE DAVID.
Q.:WHERE DID YOU GO SEE HIM?
A.:AT HIS CURRENT RESIDENCE.
Q.:ON MOUNTAIN PASS?
A.:I DON’T RECOLLECT THE STREET NAMES.
Q.:IT’S THE —
A.:I BELIEVE IT’S SABRE SPRINGS AREA.
Q.:IT’S THE HOUSE HE MOVED INTO AFTER HE LEFT THE TREERIDGE AREA?
A.:THAT IS CORRECT.
Q.:AND YOU TALKED ABOUT HIM HAVING LOTS OF TOYS.
A.:YES.
Q.:WHAT KIND OF TOYS WOULD HE HAVE?
A.:A.T.V.’S. I REMEMBER A DUNE BUGGY-TYPE THING. I DON’T KNOW THE EXACT NAME FOR IT. ALWAYS DIFFERENT VEHICLES. JUST THINGS THAT A YOUNG MAN OR WOMAN WOULD ENJOY AND ALWAYS DESIRE TO HAVE I THINK. PARTICULARLY MYSELF.
Q.:AND YOU TALKED ABOUT A WINDSURFER.
A.:A WINDSURFER, CERTAINLY.
Q.:AND HE ALWAYS HAD A POOL, DIDN’T HE?
A.:ACTUALLY WHEN I VISITED THAT TIME THE POOL WAS NOT IN IN HIS NEW RESIDENCE.
Q.:AND HE WOULD ALWAYS INVITE FAMILY AND THEIR KIDS OVER THE HOUSE TO HELP YOU ENJOY HIS TOYS?
A.:SURE. WE ALL DID. ALL THE FAMILIES, A FRIEND, WE ALL DID THAT. WE ALL WOULD ALTERNATE FROM HOUSE TO HOUSE TO GET-TOGETHERS. THE POOL WASN’T NECESSARILY AN IMPORTANT ROLE IN THAT.
Q.:DID HE HAVE A POOL THERE ON TREERIDGE?
A.:YES, HE DID.
Q.:AND THE POOL AND THE TOYS WERE CERTAINLY AN ATTRACTION TO ALL THE KIDS THAT LIVED IN THE AREA.
A.:I GUESS IT COULD BE, SURE. WHEN IT WAS WARM, SURE.
Q.:YOU ENJOYED USING THEM, DIDN’T YOU?
A.:I DO. I ACTUALLY ENJOY OTHER THINGS A LOT MORE THAN THE POOL ITSELF.
Q.:THAT WOULD BE A WAY FOR THE KIDS TO COME OVER AND BE AROUND MR. WESTERFIELD’S HOUSE.
A.:IT WAS. BUT WHAT’S REALLY INTERESTING OR WHAT’S GREAT ABOUT OUR INTERACTIONS WAS NO MATTER YOUR AGE GROUP, WE ALL TRIED TO BE INVOLVED EQUALLY. AND PLAYING GAMES OR GAMES WAS A WAY TO GET US ALL TOGETHER AND INTERACT. AND SO WE ACTUALLY DID THAT MORE — I PICTURE US MORE AT A TABLE PLAYING GAMES MORE THAN A POOL.
MR. DUSEK: THANK YOU, SIR.
THE COURT: ALL RIGHT.
ANYTHING FURTHER?
MR. FELDMAN: NO, THANK YOU.
THE COURT: ALL RIGHT.
IS THIS WITNESS TO BE EXCUSED?
MR. FELDMAN: NO OBJECTION.
THE COURT: ALL RIGHT.
THANK YOU, SIR, FOR COMING IN. YOU’RE FREE TO LEAVE THESE PROCEEDINGS OR IF YOU SO ELECT, YOU CAN REMAIN IN THE COURTROOM. HOWEVER, DON’T DISCUSS YOUR TESTIMONY WITH ANYONE UNTIL THE MATTER IS OVER WITH. OKAY?
THE WITNESS: SURE.
THE COURT: THANK YOU VERY MUCH.
(THE WITNESS WAS EXCUSED.)
THE COURT: ALL RIGHT. MR. FELDMAN.
MR. FELDMAN: I’M SORRY. MICHAEL MILLER, YOUR HONOR. MICHAEL MILLER,
CALLED AS A WITNESS BY THE DEFENDANT, HAVING BEEN DULY SWORN, TESTIFIED AS FOLLOWS:
THE CLERK: SIR, WOULD YOU STATE YOUR NAME AND SPELL IT FOR THE RECORD.
THE WITNESS: MICHAEL MILLER. M-I-C-H-A-E-L M-I-L-L-E-R. DIRECT EXAMINATION
BY MR. FELDMAN:
Q.:GOOD MORNING, SIR.
A.:GOOD MORNING.
Q.:BEFORE YOU CAME TO COURT DID YOU NOTICE THAT SOME OF YOUR RELATIVES HAVE JUST TESTIFIED?
A.:I’M AWARE OF THAT, YES.
Q.:YOU KNOW DAVID WESTERFIELD?
A.:VERY CLOSELY, YES.
Q.:HOW IS IT YOU’RE ACQUAINTED WITH OR HOW IS IT YOU KNOW MR. WESTERFIELD?
A.:DAVID HAS BEEN A CLOSE FAMILY FRIEND FOR OVER FIFTEEN YEARS NOW. HE’S BEEN VERY INTIMATELY INVOLVED IN MY WHOLE FAMILY’S LIFE. BEEN THERE AT THE MILESTONES OF MY LIFE PERSONALLY. HE’S BEEN THERE AT MY GRADUATION FROM COLLEGE, BEEN THERE AT MY GRADUATION FROM LAW SCHOOL. WE’VE CELEBRATED BIRTHDAYS TOGETHER. MY MOTHER’S FIFTIETH BIRTHDAY, A SURPRISE PARTY, WAS HOSTED AT DAVID AND THE WESTERFIELDS’ HOUSE. MY FATHER’S FIFTIETH BIRTHDAY PARTY WAS AT THEIR HOUSE. DAVID’S FORTIETH BIRTHDAY PARTY WAS AT OUR HOUSE. I MEAN DAVID IS A FAMILY MEMBER IN MY MIND.
Q.:YOU SAID HE HAD BEEN THERE AT MILESTONES IN YOUR LIFE. I WOULD LIKE TO SHOW YOU A PHOTOGRAPH. SHOWING YOU WHAT’S BEEN MARKED 242. I WANT TO BE ABLE TO LET THE JURY SEE IT. DO YOU RECOGNIZE THIS PHOTOGRAPH?
A.:ABSOLUTELY.
(PHOTOGRAPH MARKED TRIAL EXHIBIT NUMBER 242 FOR
IDENTIFICATION.)
BY MR. FELDMAN:
Q.:CAN YOU TELL US WHAT IT IS?
A.:THAT’S A PHOTOGRAPH OF DAVID AND I AT MY COLLEGE GRADUATION AT U. C. SANTA BARBARA. AND LIKE I SAID, DAVID IS REALLY A FAMILY MEMBER. ALMOST AN UNCLE OR AN OLDER BROTHER. I HAVE A YOUNGER BROTHER, AS YOU KNOW; BUT DAVID’S RIGHT THERE WITH MY IMMEDIATE FAMILY TO CELEBRATE IN THE MOMENT.
Q.:IN WHAT YEAR WAS YOUR GRADUATION?
A.:THAT’S JUNE OF 1992.
Q.:WITH REGARD TO — I’M SORRY. THAT WAS THE GRADUATION FROM THE UNIVERSITY OF CALIFORNIA AT SANTA BARBARA, IS THAT RIGHT?
A.:RIGHT. MY UNDERGRADUATE DEGREE.
Q.:BUT YOU WOULD HAVE TO HAVE MOVED FROM SAN DIEGO TO SANTA BARBARA, IS THAT RIGHT?
A.:THAT’S RIGHT. AND, IN FACT, DAVID WAS AN INTIMATE PART OF THAT. YOU KNOW, I HATE TO BURDEN SOMEONE, BUT WHO DO YOU TURN TO WHEN YOU HAVE BIG THINGS LIKE THAT. YOU TURN TO FAMILY. AND DAVID WAS THERE TO MOVE ME. NOT ONCE, BUT THREE TIMES IN BETWEEN MY FOUR YEARS AT COLLEGE AT SANTA BARBARA AND THEN THE TRANSITION FROM COLLEGE TO LAW SCHOOL DOWN IN THE MALIBU AREA.
Q.:MOVE YOU WHERE? WHAT DO YOU MEAN?
A.:SURE. I WAS IN AN APARTMENT MY SOPHOMORE YEAR IN COLLEGE AT U. C., SANTA BARBARA. AND CLASSES FOR THE REGULAR YEAR END IN JUNE. DAVID AND MY FAMILY WOULD HAVE COME UP THE FIRST TIME AND HELPED US LOAD MY FURNITURE, YOU KNOW, MY BED, MY DESK, THINGS THAT, YOU KNOW, I HAD TO MOVE FROM ANOTHER APARTMENT. YOU KNOW, WITH OTHER FRIENDS. AND DAVID WAS THERE TO LOAD ALL OF MY POSSESSIONS, YOU KNOW.
I WOULD LIKE TO THINK I TRAVEL LIGHT, BUT, YOU KNOW, EVENTUALLY YOU START GATHERING A LOT OF THINGS, BEDS, DESKS, CHAIRS. AND DAVID WAS THERE. WE WOULD MOVE IT INTO A U-HAUL. AND ON THE FIRST OCCASION MOVED ME INTO ANOTHER APARTMENT THERE IN THE SAME COLLEGE COMMUNITY.
THEN AT MY GRADUATION IN JUNE OF ’92, DAVID WAS THERE NOT ONLY TO CELEBRATE THE GRADUATION, BUT WE MOVED ALL OF THOSE SAME POSSESSIONS NOW FOR A SECOND TIME INTO STORAGE IN ANTICIPATION OF MY STARTING LAW SCHOOL IN THE FALL. I WOULD COME BACK HOME DURING THE SUMMERS, AND SO ON THIS OCCASION IN JUNE OF ’92 MOVED ME INTO A SECOND — MOVED ME A SECOND TIME. BUT THIS TIME INTO STORAGE.
AND THEN IN THE FALL OF ’92 DAVID MOVED ME A THIRD TIME NOW, DROVE ALL THE WAY FROM SAN DIEGO UP TO JUST OUTSIDE OF SANTA BARBARA AREA, CALLED GOLETA, PICKED UP ALL MY POSSESSIONS OUT OF STORAGE. WE LOADED THAT UP INTO A U-HAUL, AND THEN MOVED THAT INTO MY APARTMENT IN CALABASAS AS I STARTED LAW SCHOOL.
AND I GUESS TO GIVE YOU AN IDEA, THAT’S APPROXIMATELY 450-MILE ROUND TRIP. THE FIRST TWO TIMES DAVID DID THAT IN A WEEKEND. MOVING ME THE THIRD TIME FOR LAW SCHOOL, YOU KNOW, DAVID DID THAT, YOU KNOW, ONE DAY, ROUND TRIP. THAT’S THE KIND OF GUY DAVID IS FOR ME. HE WOULD DO THOSE THINGS WITHOUT EVEN, YOU KNOW, A SECOND THOUGHT.
Q.:NOW, ARE YOU MARRIED NOW?
A.:I AM. FOR FIVE YEARS.
Q.:WERE THERE TIMES WHEN YOU SOCIALIZED WITH DAVID EITHER RIGHT AT THE TIME YOU GOT MARRIED OR CLOSE IN TIME TO WHEN YOU GOT MARRIED?
A.:SURE.
Q.:I’M GOING TO SHOW YOU A PHOTOGRAPH. SHOWING YOU WHAT’S BEEN MARKED 239. ASK YOU, SIR, CAN YOU TELL US WHAT’S THAT.
A.:THIS IS A PHOTOGRAPH THAT WOULD HAVE BEEN TAKEN DURING THE CHRISTMAS HOLIDAYS BETWEEN CHRISTMAS AND NEW YEAR’S AT THE END OF 1991. AND —
Q.:I WANT TO BE ABLE TO SHOW IT TO THE JURY.
A.:ABSOLUTELY.
(PHOTOGRAPH MARKED TRIAL EXHIBIT NUMBER 239 FOR
IDENTIFICATION.)
BY MR. FELDMAN:
Q.:CAN YOU TELL US, PLEASE, WHO’S IN THE PHOTOGRAPH.
A.:WELL, YOU CAN SEE DAVID SITTED — SEATED, RATHER, IN THE LEFT-HAND PORTION OF THE PHOTOGRAPH IN THE BACK SMILING, AS HE WOULD WHEN WE WOULD BE GETTING TOGETHER. AND THEN ONE OF MY COLLEGE FRIENDS IS IN THE LEFT FOREGROUND OF THE PHOTOGRAPH. AND THEN IN THE RIGHT-HAND PORTION OF THE PICTURE IN THE BACK IS JACKIE WESTERFIELD. SEATED TO JACKIE’S LEFT OR THE RIGHT-HAND-MOST PORTION OF THE PICTURE, MY WIFE, THEN GIRLFRIEND AT THE TIME, IS SEATED IN FRONT OF ME. AND ONE OF HER AND MY COLLEGE FRIENDS IS SEATED TO HER RIGHT OR MORE THE MIDSECTION OF THE PHOTOGRAPH.
Q.:HOW WAS DAVID WITH REGARD TO YOUR COLLEGE FRIENDS, IF THAT’S A FAIR QUESTION?
A.:OH, ABSOLUTELY. WELL, AGAIN, I CONSIDER DAVID FAMILY. AND AT LEAST FROM MY PERSONAL STANDPOINT, WHEN I WOULD COME HOME, AND I TRIED TO DO SO OFTEN, WHEN I WOULD COME HOME OVER THE HOLIDAYS, I WOULD WANT MY PARENTS, MY FAMILY, TO MEET THE PEOPLE THAT, YOU KNOW, I WAS HANGING OUT WITH AT COLLEGE, TO MEET THE PEOPLE THAT I WAS DATING. AND THE OTHER PERSON THAT I REALLY WANTED THOSE FRIENDS TO MEET WAS DAVID. AND THIS IS AN EXAMPLE, ONE OF THOSE OCCASIONS.
TYPICALLY I WOULD, YOU KNOW, I WOULD COME HOME WITH MY FRIENDS, YOU KNOW, GET A FEW MOMENTS TO GREET MY PARENTS, YOU KNOW, TELL THEM HOW THINGS WERE GOING, AND THEN INEVITABLY, YOU KNOW, EITHER MY MOTHER OR MY FATHER WOULD SAY, HEY, CAN WE CALL DAVID. CAN WE CALL DAVID AND JACKIE AND HAVE THEM COME OVER. AND WE WOULD PLAY GAMES. THAT PHOTOGRAPH WE’RE PLAYING CHARADE-TYPE GAME GESTURES, AND THAT’S THE TYPE OF THING I WOULD DO WHEN I CAME HOME.
Q.:YOU TOLD US I THINK YOU WENT TO LAW SCHOOL. I THINK YOU GRADUATED. HAVE YOU EVER PROSECUTED OR WORKED IN ANY PROSECUTOR’S OFFICE?
A.:I HAVE NOT PRACTICED AS A PROSECUTOR UPON GRADUATING FROM LAW SCHOOL. BUT WHILE AN UNDERGRAD. AT U. C., SANTA BARBARA, I WAS AN INTERNE WITH THE SANTA BARBARA DISTRICT ATTORNEY’S OFFICE, WORKED VERY CLOSELY WITH ONE OF THE SENIOR DEPUTY D. A.’S THERE, DARRYL PERLIN. AND THEN WHILE IN LAW SCHOOL I WAS A LAW CLERK WITH THE VENTURA COUNTY DISTRICT ATTORNEY’S OFFICE DURING MY SECOND YEAR — IN THE SUMMER BETWEEN MY SECOND AND THIRD YEAR.
Q.:SIR, WITH REGARD TO YOUR WORK AS AN UNDERGRAD., MOVING BACKWARDS IN TIME A LITTLE BIT, WAS THERE SOME KIND OF A PRE-LAW SOCIETY AT THE UNIVERSITY OF CALIFORNIA, SANTA BARBARA
A.:YES. GOING INTO UNDERGRADUATE, I ENROLLED AS A LAW SOCIETY MAJOR, WHICH IS AN ADJUNCT OF THE POLITICAL SCIENCE DEPARTMENT AT U. C., SANTA BARBARA. AT THAT POINT I HAD AN INKLING THAT THAT’S WHAT I WANTED TO DO. AND IN ORDER TO GET A BETTER UNDERSTANDING OF WHETHER OR NOT I REALLY WANTED TO PRACTICE IN THE LEGAL PROFESSION, I JOINED AN ASSOCIATION THERE KNOWN AS THE PRE-LAW ASSOCIATION. EVENTUALLY I WAS ABLE TO BECOME AN OFFICER OF THAT ASSOCIATION. AND IN ADDITION TO TRYING TO FIND OUT WHETHER OR NOT —
MR. DUSEK: OBJECTION. NARRATIVE, YOUR HONOR.
THE COURT: BECOMING NARRATIVE.

MR. FELDMAN: OKAY.
BY MR. FELDMAN:
Q.:WITH REGARD TO YOUR WORK WITHIN THE PRE-LAW SOCIETY, WAS A LAW JOURNAL OF SOME SORT DEVELOPED?
A.:YES. ONE OF OUR GOALS AS MEMBERS OF THE PRE-LAW ASSOCIATION WAS TO GET INTO LAW SCHOOL, TO GET INTO REPUTABLE LAW SCHOOLS. AND SO WE WANTED TO BE ABLE TO PUT TOGETHER A PUBLICATION THAT WOULD SHOW OUR ACADEMIC ABILITIES. AND SO WE TRIED TO EMULATE WHAT MOST, IF NOT ALL, LAW SCHOOLS PUT OUT, WHICH IS A LAW REVIEW, LEGAL PUBLICATIONS THAT HAVE ARTICLES DISCUSSING PERTINENT ISSUES IN THE LAW. AND SO AS STUDENTS WE PUT TOGETHER ESSAYS THAT WE HAD PREPARED EITHER IN OUR COURSE WORK OR OUTSIDE OF THAT COURSE WORK. AND WE WANTED TO PUT IT TOGETHER IN A PUBLISHED FORM.
Q.:DID MR. WESTERFIELD HAVE ANYTHING TO DO WITH PUTTING IT TOGETHER IN A PUBLISHED FORM?
A.:ABSOLUTELY. WHEN I WOULD COME HOME, AGAIN AS A FAMILY MEMBER, DAVID WAS REALLY, YOU KNOW, IF NOT ONLY A MENTOR, HE WOULD BE A SOUNDING BOARD, IF YOU WILL. AND I WOULD TELL DAVID THE THINGS THAT WAS — THAT WERE GOING ON IN MY LIFE ACADEMICALLY OR SOCIALLY. AND SO ONE OF THE THINGS I TALKED TO DAVID ABOUT WAS WHAT I WAS DOING WITH THE PRE-LAW ASSOCIATION. AND IN PRIOR YEARS THIS PUBLICATION, I WOULD LIKE TO THINK THAT IT WAS GOOD, BUT AT THE SAME TIME IT WAS REALLY AT ITS INFANCY. AND I EXPLAINED TO DAVID WHAT WE WERE TRYING TO ACCOMPLISH, AND HE WAS EVEN MORE FAMILIAR WITH WHAT LAW REVIEW REALLY IS. AT THAT POINT I DIDN’T REALLY KNOW WHAT —
MR. DUSEK: OBJECTION. NARRATIVE.
THE COURT: OVERRULED.
YOU CAN CONCLUDE THIS ANSWER.
THE WITNESS: THANK YOU.
SO IN EXPLAINING THAT TO DAVID, DAVID SUGGESTED TO ME, WELL, YOU REALLY WANT TO MAKE THIS A PROFESSIONAL PRODUCT. AND SO DAVID WOULD SHOW ME HOW ON HIS COMPUTER WITH HIS WORD-PROCESSING SOFTWARE, AND HE HAD A LASER PRINTER, WHICH MAYBE IS MORE COMMONPLACE NOW, BUT IN EARLY NINETIES, YOU KNOW, THAT WAS SOMETHING I DIDN’T HAVE ACCESS TO. DAVID WAS VERY INSTRUMENTAL IN HELPING ME PUT TOGETHER SOMETHING THAT WE COULD THEN TAKE TO A PRINTER TO GET BOUND AND THEN SUBMIT IN PUBLISHED FORM IF YOU WILL.
BY MR. FELDMAN:
Q.:AS A RESULT OF THAT, YOU WERE ACTUALLY THE EDITOR OF THIS PARTICULAR JOURNAL ABOUT WHICH YOU’RE MAKING REFERENCE, IS THAT RIGHT?
A.:THAT’S CORRECT. I WAS CO-EDITOR-IN-CHIEF OF THAT PARTICULAR PUBLICATION.
Q.:AND AS A RESULT OF MR. WESTERFIELD’S ASSISTANCE, DID YOU GIVE HIM A PARTICULAR, I DON’T KNOW, KUDO?
A.:I DID. AS SOMEWHAT OF A TRIBUTE TO DAVID. I MEAN DAVID’S REALLY ONE OF THOSE PEOPLE THAT I THINK HAS HELPED GET ME WHERE I AM TODAY. I THEN USED MY DISCRETION AS EDITOR AND PUT A REFERENCE IN THE CREDITS OF THE PUBLICATION. AND I THINK THE REFERENCE IS SPECIAL TECHNICAL CONSULTING, DAVID WESTERFIELD. TO ME I KNEW DAVID WOULD KNOW WHERE I WAS COMING FROM FROM THE HEART, THAT — YOU KNOW, DAVID WASN’T A MEMBER OF OUR ASSOCIATION, HE CERTAINLY WASN’T ENROLLED AT U. C., SANTA BARBARA. THIS WAS MY TRIBUTE TO DAVID TO TELL HIM HOW MUCH THAT HAD MEANT TO ME.
Q.:DO YOU CARE WHAT HAPPENS TO DAVID IN THIS CASE?
A.:ABSOLUTELY. I LOVE DAVID. DAVID IS A FAMILY MEMBER IN MY MIND.
MR. FELDMAN: NOTHING FURTHER. THANK YOU.
THE COURT: ALL RIGHT.
CROSS-EXAMINATION. CROSS-EXAMINATION
BY MR. DUSEK:
Q.:HAVE YOU WATCHED THE TRIAL?
A.:I’VE WATCHED PARTS. I’M A PRACTICING ATTORNEY, SO, YOU KNOW, I DO HAVE A FULL CASELOAD OF MY OWN. BUT I’VE SEEN LITTLE PIECES HERE AND THERE, YES.
Q.:WHICH PARTS?
MR. FELDMAN: RELEVANCE. SCOPE.
THE COURT: OVERRULED.
YOU CAN ANSWER.
THE WITNESS: I WOULD SAY NO PARTICULAR PORTIONS, BUT, YOU KNOW, WHENEVER I GET A FREE MOMENT, EITHER ON THE INTERNET OR AT HOME ON THE NEWS TO SEE HIGHLIGHTS.
BY MR. DUSEK:
Q.:WHEN WAS THE LAST TIME YOU SAW HIM?
A.:I SAW DAVID SATURDAY MORNING OF THIS PAST WEEKEND.
Q.:BEFORE THIS WEEKEND.
A.:I WOULD SAY THAT IT WAS PROBABLY IN THE LATTER PORTION OF 2000. MY PARENTS —
Q.:THAT’S FINE.
A.:— HAD RETIRED TO FLORIDA. AND SO I LIVE UP IN THE VENTURA COUNTY AREA. I DON’T THINK THAT I HAD SEEN HIM OUTSIDE OF THAT SENSE. I’VE COMMUNICATED WITH HIM VIA E-MAIL AND THINGS SUBSEQUENT TO THAT, BUT OTHER THAN SATURDAY MORNING I WOULD SAY BACK FALL, 2000, BEST OF MY RECOLLECTION.
Q.:SO YOU HAVE NOT SEEN HIM FACE TO FACE SINCE THESE CHARGES AROSE, EXCEPT FOR LAST SATURDAY.
A.:AND TO CLARIFY, WE’RE TALKING TWO DAYS AGO, SATURDAY. AND PRIOR TO THAT, NO. I HADN’T SEEN DAVID — DAVID’S THE KIND OF GUY THAT WOULDN’T WANT TO, AT LEAST FROM MY EXPERIENCE, TO DRAW US INTO THE MEDIA FRENZY THAT THIS HAS BECOME. AND SO I CORRESPONDED WITH HIM VIA E-MAIL IN THE INFANCY OF THE INVESTIGATION, BUT SUBSEQUENT TO THAT MY COMMUNICATIONS WITH DAVID HAVE GONE THROUGH THE DEFENSE TEAM OR HIS FAMILY, JACKIE WESTERFIELD.
Q.:YOU HAVEN’T COME DOWN HERE TO SPEAK WITH HIM SINCE THE CASE GOT STARTED?
A.:NO. QUITE HONESTLY, MY UNDERSTANDING, I THINK THAT’S BEEN CLARIFIED DURING MY VISIT ON SATURDAY MORNING, IS THAT HIS VISITATION IS VERY RESTRICTED. AND KNOWING THAT HE HAS BOTH A SON AND A DAUGHTER THAT CARE ABOUT HIM VERY MUCH, AS WELL AS HIS SISTER IN THE AREA, I DIDN’T WANT TO IMPOSE ON TAKING ONE OF THOSE SPOTS.
Q.:DO YOU HAVE THE TIME TO COME DOWN?
A.:I WOULD MAKE TIME FOR DAVID. ABSOLUTELY. AND THAT’S WHAT I’M HERE DOING.
Q.:DID YOU SUBMIT ANY PAPERS OR WRITTEN MATERIAL REGARDING YOUR EXPERIENCES WITH MR. WESTERFIELD?
A.:SOME POINT DURING THE INVESTIGATION, AGAIN, IN TALKING WITH JACKIE WESTERFIELD, I INDICATED THAT I WHOLEHEARTEDLY WANTED TO SUPPORT DAVID AND LET NOT ONLY DAVID BUT EVERYONE ELSE KNOW WHAT HE MEANS TO US. AND SO IN THE PROCESS OF THAT JACKIE ASKED IF SHE COULD GIVE OUR NAMES TO THE DEFENSE INVESTIGATOR.
I CAME TO THEN TALK WITH THE INVESTIGATOR, THE DEFENSE TEAM, AND DID IN FACT TALK WITH HIM AND PROVIDE THEM WITH A LETTER THAT BASICALLY PUT INTO CONTEXT THE PHOTOGRAPHS THAT I WAS PROVIDING TO THEM.
Q.:SO YOU HAVE WRITTEN SOME MATERIAL REGARDING YOUR CONTACT WITH DAVID WESTERFIELD?
A.:RIGHT. THAT’S WHAT I’M TRYING TO EXPLAIN, YES.
Q.:DO YOU KNOW WHERE THAT IS?
A.:NO. I DON’T BELIEVE THAT I KEPT A COPY. I WOULD HAVE MAILED IT TO MARION PASAS I BELIEVE.
Q.:THE INVESTIGATOR HERE IN COURT?
A.:THAT’S CORRECT.
Q.:HOW LONG AGO?
A.:MY ESTIMATE IS JUNE OF THIS YEAR.
MR. DUSEK: YOUR HONOR, IF WE MAY HAVE A MOMENT, . . .
(DOCUMENT HANDED TO MR. DUSEK FROM MR. BOYCE.)
MR. DUSEK: FOR THE RECORD, COUNSEL HAS PROVIDED ME A COPY OF THAT NOW.
(PAUSE.)
BY MR. DUSEK:
Q.:AT YOUR GRADUATION FROM SANTA BARBARA, WAS YOUR FAMILY THERE?
A.:YES. ABSOLUTELY.
Q.:WAS JACKIE WESTERFIELD THERE?
A.:YES, SHE WAS.
Q.:SO HE DIDN’T COME UP BY HIMSELF.
A.:NO. WHEN I SAY DAVID’S FAMILY, MAYBE I SHOULD EXPLAIN. I CONSIDER THE WESTERFIELDS FAMILY.
Q.:FINE.
A.:THEY WERE THERE.
Q.:I THINK YOU JUST REFERRED TO JUST DAVID WESTERFIELD SHOWING UP, BUT HIS WIFE WAS THERE.
A.:OH, CERTAINLY.
MR. FELDMAN: JUST A MINUTE.
OBJECTION. ARGUMENTATIVE. THERE’S NO QUESTION, JUDGE.
THE COURT: OVERRULED. WE’RE DEALING WITH A LAWYER WITNESS, COUNSEL.
NEXT QUESTION.
BY MR. DUSEK:
Q.:DID HE BRING HIS KIDS UP?
A.:TO MY GRADUATION, BEST OF MY RECOLLECTION THE WHOLE FAMILY WAS THERE.
Q.:DID THEY HELP YOU MOVE, TOO?
A.:I WOULD SAY DAVID — NO, NOT TO KNOCK MY DAD, BUT HE HAS A BAD BACK. I WOULD SAY DAVID WAS PROBABLY THE MOST INSTRUMENTAL PART IN HELPING ME MOVE.
Q.:WAS JACKIE WESTERFIELD AND THEIR TWO KIDS STILL AROUND WHEN YOU HAD TO MOVE YOUR STUFF?
A.:ON WHICH OCCASION?
Q.:FROM SANTA BARBARA GRADUATION, ’92.
A.:YOU KNOW, HONESTLY WITH FAMILY IN TOWN, MY GRANDMOTHER WAS ALSO IN TOWN, I DON’T RECALL IF THEY WOULD HAVE ASSISTED US IN MOVING MY BELONGINGS INTO STORAGE OR NOT. MY BEST RECOLLECTION IS DAVID AND PROBABLY MY ROOMMATE AT THE TIME, MY BROTHER. I REALLY DON’T HAVE A RECOLLECTION OF JACKIE AND THE KIDS HELPING US MOVE, NO.
Q.:WELL, THEY DIDN’T COME HOME WITHOUT THE DEFENDANT, DID THEY?
A.:OH, NO. THEY WERE CERTAINLY STILL IN TOWN. LIKE I SAID, YOU KNOW, IT WAS A FAMILY GATHERING. THEY ARE PART OF OUR FAMILY. WE HAD A HOTEL SUITE THAT WE STAYED OUT FOR THE WEEKEND DURING THAT WEEKEND. TO THE BEST OF MY RECOLLECTION, SOME OF THEM WOULD HAVE BEEN THERE AT THAT TIME.
Q.:AND FROM LAW SCHOOL WAS THE DEFENDANT’S WIFE THERE ALSO?
A.:JACKIE WAS THERE, THAT’S CORRECT.
Q.:WERE THE KIDS THERE?
A.:I REALLY CAN’T RECALL WHETHER THE KIDS WERE THERE OR NOT. I HATE TO SOUND SELFISH, BUT, YOU KNOW, IN THE MIDST OF TRYING TO MOVE AND WORRY ABOUT ALL MY BELONGINGS, DAVID’S THE ONE THAT’S REALLY HELPING ME DURING THAT. THAT’S REALLY WHAT’S FOREMOST IN MY MIND ABOUT THAT EVENT.
Q.:YOU CAN’T REMEMBER YOUR DAD HELPING YOU?
A.:WELL, AGAIN, HE HAS A BAD BACK, SO IN TERMS OF THE MAJOR FURNITURE, NO. WAS HE HELPING ME WITH BOXES, ABSOLUTELY.
Q.:SO HE WAS HELPING HAUL SOME STUFF?
A.:OH, SURE.
Q.:AND YOUR BROTHER, DOES HE HAVE A BAD BACK?
A.:NO.
Q.:DID HE HELP?
A.:ON WHICH OCCASION?
Q.:ANY OF THEM.
A.:SURE. HE WOULD HAVE BEEN THERE AT MY GRADUATION FROM U. C. S. B. AND WOULD HAVE BEEN HELPING ON THAT OCCASION, SURE.
Q.:SO IT WASN’T JUST THE DEFENDANT WAS HELPING YOU HAUL YOUR BOXES AND YOUR FURNITURE BACK AND FORTH.
A.:NO. BUT I GOT TO TELL YOU WITH SOME OF THE FURNITURE THAT I HAVE, I HAVE A HEAVY CAPTAIN’S BED, IF IT HADN’T BEEN FOR DAVID BEING THERE, IT WOULD HAVE BEEN VERY DIFFICULT.
Q.:PROBABLY WOULDN’T HAVE GOTTEN MOVED AT ALL, WOULD IT, IF THE DEFENDANT HAD BEEN THERE?
A.:I WOULD HAVE FOUND A WAY, BUT THE FIRST THING THAT I THOUGHT OF IN TRYING TO FIND A WAY WAS TO ASK DAVID. I WOULDN’T HESITATE TO ASK DAVID BECAUSE HE WAS ALWAYS OFFERING.
Q.:HE WAS ALREADY THERE, WASN’T HE?
A.:ACTUALLY HE WAS THERE BECAUSE I INVITED HIM TO BE THERE. JUST LIKE I INVITED MY FAMILY. AND, YOU KNOW, I DIDN’T IMPOSE THAT ON EVERY FAMILY MEMBER. DAVID WAS THE KIND OF GUY THAT I DIDN’T FEEL LIKE I WAS IMPOSING BECAUSE HE WAS ALWAYS WILLING TO HELP ME.
Q.:THE WORK THAT HE DID ON YOUR PRE-LAW JOURNAL, DID HE DO ANY OF THE PHYSICAL WORK?
A.:NO.
Q.:HE WAS SKILLED IN THE USE OF THE COMPUTERS, THOUGH, WASN’T HE?
A.:IT’S MY UNDERSTANDING THAT HE HAD SIGNIFICANT BACKGROUND IN COMPUTERS. AND THAT’S REALLY WHERE HE ASSISTED ME TO GIVE ME IDEAS IN TERMS OF HOW WE COULD MAKE IT A PROFESSIONAL PUBLICATION. AND SO USING BASIC WORD-PROCESSING SOFTWARE, YOU KNOW, HE SHOWED ME HOW WE COULD LAY OUT THE PAGES AND THEN USE HIS LASER PRINTER TO PRINT OUT SOMETHING THAT WOULD BE SHARP ENOUGH THAT WE COULD HAVE THEN A PRINTER DUPLICATE. USING AN INK-JET PRINTER, YOU KNOW, IT WOULDN’T HAVE LOOKED AS CLEAR. THESE WERE THINGS THAT DAVID BOUNCED OFF ME SO THAT WE COULD REALLY PUT OUT SOMETHING THAT WOULD LOOK PROFESSIONAL.
Q.:BASED UPON YOUR CONTACT WITH HIM, IT WAS YOUR IMPRESSION THAT HE WAS VERY SKILLED WITH KNOWING HOW A COMPUTER WORKED, IS THAT RIGHT?
A.:I DON’T KNOW. OTHER THAN WORKING WITH THE LAW JOURNAL, BECAUSE MY BACKGROUND WASN’T COMPUTERS, OTHER THAN THIS INCIDENT WITH THE LAW JOURNAL, I DIDN’T REALLY GET INVOLVED WITH DAVID AND HIS COMPUTER BACKGROUND. BUT IT WAS CERTAINLY MY UNDERSTANDING THAT THAT WAS PART OF HIS WORK EXPERIENCE.
Q.:YOU NEVER WENT OVER TO THE HOUSE, TO HIS HOUSE, TO SEE HIS COMPUTER SETUP?
A.:WELL, THAT’S WHERE I WOULD HAVE PRINTED OUT WHAT WE TOOK OFF TO THE PRINTER’S FOR THE PUBLICATION WOULD HAVE BEEN HIS COMPUTER AT THE WESTERFIELD HOUSE.
Q.:WHICH HOUSE?
A.:ON TREERIDGE TERRACE IN POWAY.
Q.:AND HE HAD A PRETTY COMPLETE COMPUTER SETUP?
A.:SURE. IN TERMS OF THE C.P.U. AGAIN, YOU KNOW, FOR MY PURPOSES THE LASER PRINTER WAS THE BIG DEAL TO ME AT THE TIME. YOU KNOW, I THOUGHT THAT WAS REALLY SPECIAL EQUIPMENT. NOW IT’S PROBABLY MORE COMMONPLACE.
Q.:DO YOU KNOW IF AFTER EITHER OF YOUR GRADUATIONS HE AND HIS FAMILY WENT ON FOR — TO COMPLETE A VACATION?
A.:SORRY. I DON’T UNDERSTAND THE QUESTION.
Q.:WELL, DO YOU KNOW IF THEIR STOP IN SANTA BARBARA OR LAW SCHOOL WAS JUST THE BEGINNING OR THE END OF A VACATION THAT THEY WERE ALREADY ON?
A.:I KNOW THE STOP FOR LAW SCHOOL ABSOLUTELY WAS NOT. THEY DROVE UP FROM SAN DIEGO AND WERE AT MY GRADUATION FROM PEPPERDINE. AND THEN AS MY MISFORTUNE WOULD HAVE IT, MY BROTHER WAS GRADUATING THE SAME WEEKEND, SO WE DIDN’T HAVE A LOT OF TIME TO CELEBRATE THERE IN THE MALIBU AREA AFTERWARDS, BUT WE WENT OUT AND GRABBED A QUICK APPETIZER ON OUR WAY TO THE AIRPORT TO GO CELEBRATE MY BROTHER’S GRADUATION AT HUMBOLDT STATE UNIVERSITY. AND IT’S MY UNDERSTANDING FROM THERE DAVID AND JACKIE WOULD HAVE GONE BACK HOME.
Q.:HOW ABOUT THE OTHER GRADUATION?
A.:WELL, —
Q.:THAT WAS PART OF A VACATION, WASN’T IT?
A.:THE WEEKEND THAT I GRADUATED FROM U. C., SANTA BARBARA, IN JUNE OF ’92, I WOULD CALL IT A FAMILY VACATION. BUT MY FAMILY VACATION, IF YOU WILL, WITH DAVID AND JACKIE PART OF IT, WE RENTED A SUITE FOR A LONG WEEKEND, AND ALL OF US STAYED TOGETHER. ONCE THAT WAS DONE AS A GROUP, MY PARENTS AND DAVID AND JACKIE AND THEIR FAMILY WOULD HAVE GONE BACK HOME TO SAN DIEGO. SO THIS WAS NOT A STOP ON ANOTHER TRIP.
I THINK I UNDERSTAND YOUR QUESTION NOW. THIS WAS NOT PART OF A STOP ON ANOTHER TRIP. THE TRIP WAS CELEBRATING A BIG MILESTONE IN MY LIFE.
Q.:AND HE GOT TO SHARE THAT BIG MILESTONE IN YOUR LIFE, DIDN’T HE?
A.:DAVID WAS ALWAYS THERE TO SUPPORT AND SHARE IN OUR MILESTONES, THAT’S CORRECT.
Q.:HE SEEMED TO UNDERSTAND THE IMPORTANCE OF SHARING THOSE MILESTONES IN FAMILIES’ LIVES, DIDN’T HE?
A.:ABSOLUTELY.
Q.:AND IT WAS IMPORTANT FOR HIM TO DO THAT, WASN’T IT?
A.:HE CERTAINLY MADE ME FEEL LIKE IT WAS IMPORTANT TO BE THERE. I THINK HE — I FEEL THAT FROM LOOKING AT THAT PICTURE AT MY GRADUATION IN SANTA BARBARA, THE GENUINE WARMTH THAT HE WAS TRYING TO EXPRESS TO ME.
Q.:AND YOU WERE STILL AROUND FOR HIM TO BE ABLE TO SHARE THAT MOMENT WITH YOU, CORRECT?
A.:THAT’S CORRECT.
Q.:DO YOU KNOW WHEN HIS LAST BIRTHDAY WAS?
A.:IT WOULD HAVE BEEN IN FEBRUARY OF THIS YEAR.
Q.:DID YOU GET TO SEND HIM A BIRTHDAY CARD?
A.:NO, UNFORTUNATELY, I DIDN’T. YOU KNOW, MY FAMILY AND I TALKED ABOUT THAT. I KNOW WHEN HIS FORTIETH BIRTHDAY WAS IN FEBRUARY OF ’92. IN FACT, I REALLY THINK THAT’S WHEN I GAVE HIM THE LAW JOURNAL TO, YOU KNOW, TO TELL HIM WHAT HE MEANS TO ME. BUT WE TALKED ABOUT WE SHOULD BE THERE TO CELEBRATE DAVID’S BIRTHDAY. UNFORTUNATELY, BECAUSE OF THE CIRCUMSTANCES OF THIS CASE, WE WEREN’T ABLE TO DO THAT FOR HIS FIFTIETH.
Q.:BUT YOU COULD HAVE SENT HIM A BIRTHDAY CARD, COULDN’T YOU?
A.:QUITE HONESTLY, I WAS NOT SURE AT THAT POINT HOW TO CONTACT DAVID OTHER THAN THROUGH HIS IMMEDIATE FAMILY.
Q.:AND YOU COULD HAVE SENT A BIRTHDAY CARD THAT WAY TO BRIGHTEN HIS LIFE, COULDN’T YOU?
A.:YOU KNOW, NOW THAT YOU MENTION IT, I WISH I HAD.
Q.:STILL CAN, CAN’T YOU?
A.:SURE. LIKE I SAID, I WAS THERE SATURDAY.
MR. DUSEK: NOTHING FURTHER. THANK YOU.
THE COURT: ANYTHING FURTHER?
MR. FELDMAN: NO, THANK YOU.
THE COURT: ALL RIGHT.
IS THIS WITNESS TO BE EXCUSED?
MR. FELDMAN: NO OBJECTION. THANK YOU.
THE COURT: ALL RIGHT.
THANK YOU FOR COMING IN. YOU’RE FREE TO LEAVE THESE PROCEEDINGS OR YOU’RE WELCOME TO REMAIN IN THE COURTROOM.
PLEASE REMEMBER YOU’RE UNDER AN ADMONITION NOT TO DISCUSS ANY OF YOUR TESTIMONY UNTIL THE MATTER IS CONCLUDED. OKAY?
THE WITNESS: THANK YOU.
THE COURT: ALL RIGHT. THANK YOU.
(THE WITNESS WAS EXCUSED.)
MR. FELDMAN: YOUR HONOR, WE HAVE NO FURTHER WITNESSES TODAY.
THE COURT: ALL RIGHT.
MR. FELDMAN: BUT WE NEED TO MOVE THE EXHIBITS OR —
THE COURT: WE WILL TAKE CARE OF ALL THE REST OF THAT IN OUR SESSION THIS AFTERNOON.
ALL RIGHT. LADIES AND GENTLEMEN, I THINK WE’VE GONE THROUGH ROUGHLY TEN OR ELEVEN WITNESSES. SO WE’VE MOVED RIGHT ALONG. THE LAWYERS AND I HAVE THINGS THAT WE CAN DO IN PREPARATION FOR THE ARGUMENTS WHICH I’M ANTICIPATING WILL PROBABLY TAKE PLACE SOME TIME TOMORROW. WE’LL DO ALL OF THAT THIS AFTERNOON WHILE YOU FOLKS ARE ON BREAK.
SO THE BOTTOM LINE IS WE DON’T NEED YOU UNTIL 9:00 O’CLOCK TOMORROW MORNING. I HOPE YOU’RE NOT SORELY DISAPPOINTED AT THE PROSPECT OF HAVING THE AFTERNOON OFF.
AT ANY RATE, PLEASE REMEMBER THE ADMONITION OF THE COURT NOT TO DISCUSS ANY OF THE EVIDENCE OR TESTIMONY AMONG YOURSELVES OR WITH OTHERS NOR FORM OR EXPRESS ANY OPINIONS ON THE CASE UNTIL IT IS SUBMITTED TO YOU.
HAVE A PLEASANT AFTERNOON AND EVENING. WE WILL SEE YOU AT 9:00 O’CLOCK TOMORROW MORNING. 9:00 A.M. TOMORROW MORNING.
(THE JURY RECESSED AT 12:00 O’CLOCK, NOON.)
(THE FOLLOWING OCCURRED OUT OF THE PRESENCE OF THE
JURY:
THE COURT: OKAY. THE RECORD SHOULD REFLECT THE JURORS AND ALTERNATES HAVE LEFT THE COURTROOM.
COUNSEL, WE CAN DEAL WITH THE EXHIBITS THIS AFTERNOON WHEN WE DISCUSS JURY INSTRUCTIONS.
IT’S MY UNDERSTANDING, MR. FELDMAN, THAT YOU’RE ANTICIPATING TWO ADDITIONAL WITNESSES FIRST THING TOMORROW MORNING.
MR. FELDMAN: YES, YOUR HONOR.
THE COURT: AND —
MR. FELDMAN: SHORT.
THE COURT: — WILL THE PEOPLE BE PREPARED TO DISCUSS WHAT, IF ANY, REBUTTAL EVIDENCE THIS AFTERNOON?
MR. DUSEK: YES.
THE COURT: GENTLEMEN, I WOULD LIKE TO, AND LADY, I WOULD LIKE TO PRESENT AN OPTION OF GETTING TOGETHER AT 1:00 O’CLOCK AS OPPOSED TO 1:30, SINCE WE’RE NOT DEALING WITH THE LUNCHTIME OF THE JURORS, IF COUNSEL ARE ALL AVAILABLE AT 1:00.
MR. DUSEK: WE ARE.
MR. FELDMAN: I JUST NEED TO CHECK TO MAKE SURE REBECCA JONES, WHO IS ON THE INSTRUCTIONS, IS AVAILABLE. I THINK WE CAN BE HERE, YOUR HONOR.
THE COURT: THE MEDIA AND PUBLIC ARE WELCOME TO ATTEND THE DISCUSSION OF JURY INSTRUCTIONS IF YOU LIKE. I SUSPECT THE NATIONAL AUDIENCE DOESN’T NEED A SEDATIVE THIS AFTERNOON. BUT, AT ANY RATE, WE WILL BE IN RECESS UNTIL 1:00 O’CLOCK.
(END OF PROCEEDINGS OUT OF THE PRESENCE OF THE JURY.)
(RECESS, 12:02 O’CLOCK, P.M., TO 1:00 O’CLOCK, P.M.)

03092 - September 3rd 2002 - penalty phase - David Westerfield trial - morning 2
03095 - September 3rd 2002 - penalty phase - David Westerfield trial - afternoon 2