Skip to comments.Van Dam Trial Transcripts, Complete: Testimony continues to vary from previous statements.
Posted on 04/09/2002 11:30:44 AM PDT by FresnoDA
|Brenda Van Dam Preliminary Hearing Transcript|
JUDGE: Please tell us your name.
A: Brenda Van Dam.
JUDGE: Would you spell the first and last name.
A: BRENDA Van Dam: B-r-e-n-d-a V-a-n D-a-m.
JUDGE: Thank you very much.
Prosecution begin. Dusek questions.
Q: Mrs. Van Dam are you married?
Q: Who are you married to?
A: Damon Van Dam.
Q: When did you get married?
A: March 11th 1989.
Q: So you've been married how many years?
A: 13 years.
Q: Just had an anniversary?
Q: Where do you live?
A: Sabre Springs.
Q: What's the address?
A: 12011 Mountain Pass Road.
Q: Sabre Springs is in what part of the city?
A: San Diego.
Q: Up in North County?
Q: Do you have any children?
A: I have three children.
Q: What's the oldest child's name? Go ahead and use the Kleenex if you need it.
JUDGE: Is there water up there also?
P: There is.
Q: How old is Derrick?
Q: What is his birthday?
A: March 9 1992.
Q: So he just had a birthday?
Q: What grade is he in?
Q: Is Danielle your second child?
Q: What was her birthday?
A: September 22 1994.
Q: What grade was she in?
Q: And your third child is whom?
A: Dylan. Dylan is five.
JUDGE: How do you spell "Dylan"
JUDGE: Anytime you need a break ...
Q: You let us know if you need to take a break maam.
Q: We'll accommodate your situation. Does Dylan go to school?
A: Yes he's in kindergarten.
Q: Your house there in Sabre Springs is it one story or two story
Q: How long have you lived there
A: Approximately 3 1/2 years.
Q: Do you remember about when you moved in
A: I think it was in April.
Q: Of what year? Do you remember?
A: I don't.
Q: All right. The bedrooms in your house where are they located? First or second floor?
A: Second floor.
Q: I assume there's a stairway in the house to get upstairs?
Q: When you come up the stairway and get to the second floor which way do you turn to go to your bedroom the master bedroom?
Q: And how about to the kids bedroom? Which way do you turn?
Q: And as you turn left to go to the kids bedrooms which is the first one you come to?
Q: When his door is closed is there anything on his door that would indicate anything at all about the type of person male female sex anything of the person?
A: He has Tarzan on his door.
Q: What do you mean "Tarzan"
A: It's like a sticker a 3D sticker on his door.
Q: Where on the door?
A: It's down at his level. He put it on.
Q: How big is it?
A: It's about this big
Q: About a foot you're indicating
A: No actually it's probably about ... I'm not sure of the size. Maybe six inches by six inches.
Q: What color?
A: Green and yellow and brown.
Q: Kinda' bright?
Q: The next bedroom that you would come to would be whose bedroom?
Q: Does she have anything on her door to indicate whether or not there's a male or female in that bedroom?
A: She has pink and purple hearts and flowers.
Q: About what size are they
A: They are... I think they could be a foot long altogether and maybe five inches in height.
Q: How are they attached to the door?
A: They're wallpaper from her border and I cut them out so that I could put them on the door. So they're glued on.
Q: Can you estimate how long they've been there? Ballpark.
A: Approximately two years.
Q: And as you continue down the hall do you come to a third bedroom?
Q: Whose bedroom is that?
Q: Does he have anything on the exterior of his door to give us a clue as to what type of person stays in there?
A: He had a Pokemon sticker.
Q: What's a "Pokemon"?
A: Pokemon sticker. They're trading cards. It's a game.
Q: How long had that been on?
A: About two years.
Q: Where did that come from?
A: The trading card store.
Q: Did Danielle go to the dentist?
Q: Do you remember the name of her dentist?
A: No I don't. It's "A Poway Dental".
Q: Dr.(garbled) does that name ring a bell at all? If it does fine if not that's fine too.
Q: At a point in time during this case did the police department come to you and ask for her dental records?
A: Yes they did.
Q: Did you and your husband provide them or at least consent for them to go pick them up?
A: Yes we did.
Q: Your daughter Danielle did she customarily wear any jewelry?
A: She had Mickey Mouse earrings in and for about two years she had a necklace on that was brown stretchy loops.
Q: Do you remember the material of the necklace?
A: It's plastic.
Q: The Mickey Mouse earrings can you describe them for us? Size and color and that type of thing?
A: They have blue stones. There's one main stone for the face and then two for the ears one for each ear.
Q: They were pierced ears?
Q: Her ears were pierced?
Q: How often did she wear those?
A: We had just gotten them at .... we went to Chris... Disneyworld the day after Christmas we flew to Florida. We came back on the 2nd of January.
Q: Did she wear them like all day or would she take them out at night?
A: She wore them all the time.
Q: You let her wear them all the time?
Q: How about the necklace? How often would she wear that?
A: She never took it off.
Q: You didn't make her take it off at night?
Q: she share that necklace with anyone else? Any other people have common necklaces?
A: She never shared it with anyone but it's a common necklace.
Q: It was a bad question on my part. Did she and any of her other friends have the
same type of necklace that you remember?
Q: Can you describe for us how she or you kept her fingernails?
A: I think she bit them.
Q: Keep the voice up a little bit if you would.
A: OK. She bit her nails.
Q: Did you ever have them treated or taken to a manicurist that type of thing
Q: What color was her hair
A: It was a brownish blonde.
Q: What color is your hair
Q: I don't want to embarrass you here but is your hair color treated
Q: So there would be chemicals on your hair?
Q: If we were to find some similar appearing hair your hair would have the chemicals on it?
FELDMAN: Objection. Speculation.
JUDGE: Sustained. Next question.
Q: How long have you been treating the hair?
A: My hair?
A: For a long time. I couldn't give you a definite date.
Q: How about Danielle? Was her hair color treated?
Q: Do you know David Westerfield?
A: Yes I do.
Q: Is he in the court today?
Q: Would you point him out please and describe where he's sitting and what he's wearing today.
A: He's right there. He's wearing a dark gray suit and a blue tie with a white shirt.
JUDGE: She's identified Mr. Westerfield.
Q: How is it that you know of Mr. Westerfield?
A: He lives two houses from us.
Q: On the same street?
Q: How far are you from the corner maam your house?
A: We're one house in.
Q: So you're right next ...
A: We're the second house in actually.
Q: There's a corner house?
A: And then we're the next house.
Q: OK. Do you know what that corner is?
A: It's Mountain Pass and Briarleaf.
Q: And you live on Briarleaf I'm sorry you live on Mountain Pass?
Q: And Briarleaf is the house that where the corner house is?
Q: If you cross over Briarleaf what house do you come to?
A: Mr. Westerfield's.
Q: Do you know if he was in the neighborhood before or after you guys moved in?
Q: How long have you known his name if at all?
A: I didn't know his name until Danielle and I went to sell Girl Scout cookies.
Q: Before that did you have any real contact with him?
A: Not a lot no.
Q: Pass each other or see each other in the neighborhood or anything like that?
A: Yes. I'd wave to him.
Q: Did he wave back?
Q: How about the other people in the neighborhood did you wave to them?
A: Because they're my neighbors.
Q: Do you recall any block parties that perhaps you and Mr. Westerfield attended together?
Q: Can you estimate for us how many personal contacts you've had with Mr. Westerfield. and by that I'm excluding the hi and bye type of thing on the street.. where you had a chance to talk with him or be with him in a location?
A: Approximately 4..... wait...wait... I should say 5 to 6.
Q: Can you remember the first contact that you've had with him other than the hi and bye?
A: I think it was selling Girl Scout cookies the year before.
Q: Year before Danielle's disappearance?
Q: Did she belong to the Girl Scouts?
Q: And occasionally they have to go out and sell cookies?
Q: You let her go out by herself?
Q: Why not?
A: Because I don't want her going door to door by herself.
Q: And how do you go about selling cookies? What's the process?
A: We would go to our neighbors and she would ring the doorbell. And we'd ask if you'd like to buy any cookies we'd fill out the form and there's a certain day you turn the form in and then you have to deliver the cookies.
Q: Who would be delivering? You or Danielle or
A: Well we would try to do it together.
Q: And a year ago when the cookies were sold or at least given the opportunity to be sold at Mr. Westerfield's house do you remember anything at all about that contact?
A: I remember that he invited us in.
Q: A year ago?
A: A year ago.
Q: Did you go in?
A: We stayed in the living room and he filled out the order form.
Q: Do you remember what he bought?
Q: Who was with you on that occasion?
Q: Do you remember anything else about that contact?
A: No. I think at the time he was having renovation done to his kitchen.
Q: Why do you think that?
A: Because it was plastic. There was plastic there. There was like plastic hanging down from the ceiling so that dust wouldn't get out.
Q: And when you and Danielle were selling cookies on that occasion was he the only house that you went to?
Q: What did you do? How many people did you hit up?
A: Probably five or six.
Q: After that contact a year ago can you remember when the next contact would have been?
A: No I can't.
Q: What's the next contact with Mr. Westerfield that stands out in your mind?
A: When I went to Dad's the Friday before the second - the first.
Q: The weekend before Danielle was missing?
A: Yes the weekend before Danielle was missing my friend was moving out of town and we had a girls night out. And he was there.
Q: On that occasion did you know his name?
Q: Didn't know his first name or last name?
Q: Why not?
A: I just didn't know his name. I had never really spoken to him in detail.
Q: On that .... where is Dad's? Can you help us out?
A: It's in Poway off Poway Road.
Q: Describe the type of place.
A: Well during the day it's a family restaurant and then after a certain time at night it
turn . they have a band that plays on the weekends and it's
Q: They have a bar too don't they?
A: It's a bar yes pool tables.
Q: Do you remember when it converts from restaurant into bar and music. if you can remember.
A: I could be guessing if I answered that but I
Q: Don't do that.
A: OK. I can't.
Q: Now that occasion the week before Danielle was missing that you went to Dad's who all did you go with?
A: I went with Denise and Barbara.
Q: Friends of yours?
Q: How long have you known Barbara ......about?
A: About 7 to 9 months.
Q: How about Denise? How long have you known her?
A: Four year three and a half years.
Q: There was an occasion for going there that evening?
A: Yes Denise was moving.
Q: Were any arrangements made for caring for your children? That evening while you were
A: My husband was home with them.
JUDGE: I'm sorry. Say that again please.
A: My husband was home with them.
JUDGE: Thank you.
Q: Can you recall about what time you headed out for Dad's?
A: This is the weekend before Danielle was missing?
A: We headed out to Dad's approximately between 9:00 and 9:30.
Q: In the evening?
Q: And in whose vehicle if you can remember?
Q: The three girls went in the one car?
Q: Were you to meet up with anybody at Dad's?
Q: What was supposed to happen down there at Dad's?
A: We were just supposed to be together as friends and have a good time.
JUDGE: I understand. It's difficult. Would you try to keep your voice up a little bit and we're going to try to adjust this speaker.
(sound was adjusted for microphone)
Q: All right.Can you estimate for us how long you stayed at Dad's that first occasion?
A: Till closing.
Q: Which is?
A: Approximately 2:00.
Q: What did you do down there?
A: We had drinks and we danced.
Q: Who's we.
A: Denise and Barb and I.
Q: Did you dance with any guys?
A: I don't remember.
Q: Do you know if Mr. Westerfield was there that evening?
A: Yes he was.
Q: How do you know he was there?
A: He bought us a drink.
Q: When did that take place in the sequence of events if you can tell us?
Q: Early? Middle? late?
A: Early .....early part of the night. Early part of the evening.
Q: Do you know if he was there when you first got there? Did you pay attention?
A: He was there when I first got there.
Q: Were you able to recognize him?
A: Because he's two doors down.
Q: Did you speak with him?
Q: What was the conversation about?
A: I don't remember. I don't.
Q: Anything of substance that you can come up with?
Q: What was the tone or the nature of the conversation or contact you had with him that evening?
A: he bought us drinks and Denise and I and Barbara were together. So we didn't talk a whole lot.
Q: Amongst yourselves or to him?
A: To him.
Q: Do you remember what he bought you?
A: I had a cranberry and vodka.
Q: Did he say anything when he bought the drinks or offered to buy the drinks on that occasion?
A: Not on that occasion.
Q: Did you have any further contact with him besides what you've just described that evening?
A: I can't really remember. I.... it's
been a while. I've been through a lot. I can't .....
Q: Have you tried to remember if there's anything noteworthy about what happened that night?
A: We're talking the weekend before Danielle's missing?
Q: I am.
Q: Were there pool tables at Dad's?
Q: On that occasion do you remember if you played pool at all?
Q: No you didn't or no you don't remember?
A: No we didn't.
Q: Were there any guys that you met up with at Dad's that night..... that occasion?
Q: Where did you go when you left?
A: Back to my house.
Q: Who did you go with?
A: I had Denise and Barb in the car.
Q: How about Mr. Westerfield? Did you take him home?
Q: Did you see him leave the bar?
Q: Were you aware of him leaving at any time that evening?
Q: When you got back home that evening what happened?
A: Denise and Barbara got into their car and went home.
Q: What did you do?
A: Went inside and went to bed.
Q: the next time that you had contact with Mr Westerfield was when
A: when Danielle and I sold GS cookies
Q: This would be the 2d GS trip
Q: Whered you go to do it
A: We went to the right of my house up the block across the street and went down and then we turned right on Briarleaf and went to two houses and then his house was the last house
Q: So you actually made it to his house
Q: What happened when you got to his house for the cookies sale
A: He invited us in
Q: did you go in
A: we went in. I asked him if I could see the kitchen
Q: The kitchen for what reason
A: to see the remodel
Q: did he show you the kitchen
Q: Describe how that happened
A: we walked into the kitchen but we stayed on the outside of it and I guess I dont know what room it is. We were standing y the bar area. I looked at his knobs on his counters. We have granite in our kitchen and Ive been thinking about changing the knobs
Q: so you discussed the kitchen remodel
Q: had it been completed since the other occasion youd been in the house
JUDGE: What date was this please
A: I dont know the exact date that I sold him GS cookies
Q: do you remember what day it was
A: it was approx Tues or Wed
JUDGE: thats fine as long as I have the record
Q: Who was with you when you went to the house for the GS cookies
A: Danielle and Dylan
Q:Dylan is the youngest
Q: Whyd you take him along
A: There was nobody at home. Derrick had a play date. So I couldnt leave him at home alone
Q: and how about Derrick where was he
A: He had a play date but I dont exactly remember what friend he was playing with
Q: Whats a play date?
A: he went to a friends house after school
Q: do you remember what time of day or night you went out selling GS cookies?
A: I know it was in the evening because when we walked home it was starting to get the sun was going down
Q: what did the children do when you were in the house speaking with Mr Van .or Mr Westerfield
A: they saw the pool out back and they asked if they could go out and look at it
Q: whod they ask
A: they asked me
Q: then what happened?
A: I asked him if it was OK and he said as long as they didnt fall in and they went out back for a couple minutes and looked and then they came right back in
Q: where else did they go in the house?
A: nowhere. Dylan asked to go upstairs and I told him absolutely not
Q: how about Danielle did she ask or go anywhere else besides with you and out in the backyard
Q: did you see any comforters in the house?
A: not that I recall
Q: bedding comforters that would have been piled perhaps on a couch or a counter in the area where you were
Q: did you have a discussion with Mr W aside from the remodeling while you were in the house with him there
A: yes I did
Q: whatd he say
A: He asked me why I did not introduce him to my friends the weekend before. He said they looked like a lot of fun
Q: your friends were who
A: Denise and Barbara
Q: whatd you tell him
A: I told him that I didnt know his name. And I asked him you know I said how could I have introduced you when I dont even know your name. And he said "Hi I'm Dave Westerfield" and he gave me a business card.
Q: He did that right then?
Q: Did you take it?
A: I took it.
Q: Then what happened?
A: He asked me to tell my friends that I had a rich neighbor to introduce him to.
Q: OK. What did you tell him?
A: I told him that they were trying to talk me into going to Dad's that Friday.
Q: The coming Friday?
A: The coming Friday but I wasn't sure if I was going to be going because my husband had planned to take our oldest son Derrick snowboarding.
Q: Where were they going to go?
A: Big Bear.
Q: Was going to take Derrick the oldest boy?
Q: At least possible? You have to answer out loud.
A: Yes. Sorry.
Q: What else did you tell him about that possibility?
A: I told him that I was going to try to get a babysitter so that I could go out with Denise and Barbara since it was her last night there and if I was successful in getting a babysitter I would be there.
A: And I would introduce him to my friends.
Q: Did he show any interest in you at all?
Q: When you told him that you'd introduce him to your friends what happened next?
A: we walked outside .well actually he asked me to write my name and phone number on a piece of paper.
Q: Did he say why?
A: He said that he has parties . he has adult parties and that he has barbeques where he supplies the salads and everyone brings the meat that they want to cook.
Q: And when he said that did he say anything else?
A: Not that I recall.
Q: And what did he ask you to do?
A: Write my name and my husband's name down on a piece of paper he gave me.
Q: Did he say why?
A: Because he would invite us to a party I guess.
Q: What did you do?
A: I was writing it down while he told me I was writing my name and number down. And he said "I have adult parties and BBQ: s." As he was saying that I was writing it down.
Q: Did you complete .. continue writing it down?
A: Yes sir.
Q: What did you do with it?
A: I handed it to him.
A: I don't know why. I was being nice.
Q: Had you had you ever been to a party at his house?
Q: Had you ever been to any social function with him?
Q: Had he ever been to your house?
Q: Had he ever been to any social function where you and your husband were together with him or you were together with him? Little League? Girl Scouts? Schools? Anything like that?
Q: Any other neighborhood parties where you'd been with him?
Q: What happened after you gave him the phone number?
A: I believe we walked out front he started talking about a place called "In Cahoots" and he wanted me to go there. I think Wednesday night was some sort of special night. That's why I'm kind of thinking I sold him cookies on Tuesday. And he said "Don't forget to wear your boots to "In Cahoots" And Danielle and Dylan were playing in the rocks at the neighbor's house next to him. And I kept asking them to get off the rocks because I didn't want them to spread them out and for the neighbor to have to clean them up. And then we walked home.
Q: Did Mr. Westerfield say anything about your pestering the kids to get out of the rocks?
A: I can't remember.
Q: Where did you go from there?
A: We walked home.
Q: Did you speak with anybody about the conversation the time that you just spent with Mr. Westerfield?
A: I called my husband at work.
A: Because it struck me odd that he mentioned adult parties. I didn't know what he meant by that.
Q: You had never seen him before except for what you described here?
Q: When was the next time that you saw him?
A: At Dad's Cafe on Friday evening night.
Q: That would be February 1st?
Q: Are you employed maam?
A: I work from the house.
Q: So that Friday do you recall what your activities were in the afternoon?
A: Well Damon was going to Italy on business. And he asked me if I would like to bring the kids along for two weeks. So he was busy purchasing tickets and I went and got the kids out of school early to get their passport photos.
Q: Do you remember where you went?
A: I went to a photo shop in Carmel Mountain called Moto Photo.(sp)
Q: Then where did you go?
A: I went to Staples. I had to make some copies for my business.
Q: Then where?
A: I went to the post office.
Q: Then where?
A: We went to Mervyns.
Q: To do what?
A: Dylan had a birthday party to go to on Saturday and Danielle had a father-daughter dance that was planned for Thursday.
Q: Of the following week?
Q: It was a dance at school?
Q: And what did you do at Mervyns?
A: Danielle tried on a lot of clothes. We were trying to find something special for the theme. And while she was trying on clothes Dylan and Derrick walked over to the little toy shop right outside of Mervyns and Derrick helped him pick a present.
Q: For the birthday party?
A: For the birthday party. While Danielle was trying on clothes I ran over and paid for the gift and brought the boys back. She was still in the dressing room changing. When we were finished and she had decided on her gift we paid and then we went home
Q: So you actually bought a dress?
A: We actually bought ended up buying a sparkly shirt. The theme was "Be a Star."
Q: And from there you went where?
Q: Can you estimate for us about what time you got home?
A: I'm thinking about 5:30.
Q: Was your husband home?
Q: Where would he have been?
A: He was still working.
Q: What happened when you got home maam?
A: I decided to order pizza.
Q: You weren't going to cook that night?
A: No. It was kind of late. I didn't plan on being out that late with them.
Q: And did you order the pizza?
Q: Then what happened?
A: I went to pick up the pizza.
Q: You had to go get it?
Q: That's a "yes"?
A: Yes. I'm sorry.
Q: Did you go with anybody to get the pizza or go by yourself?
A: No I went by myself.
Q: Then where did you go?
A: Straight home.
Q: Then what?
A: When I got home my husband was already home.
JUDGE: I'm sorry. Say that again please.
A: When I got home my husband was already home.
JUDGE: Thank you.
Q: Was the snowboarding trip still planned?
A: No it wasn't.
Q: Why not?
A: He decided Damon decided to take Derrick on Sunday because that's when the friend of his was going.
Q: And at that point when you had had the pizza and were eating your dinner there had arrangements been finalized for what you were going to do that evening?
Q: And what were you going to do that evening?
A: I was going to go out with Denise and Barbara.
Q: For what reason?
A: Because Denise was moving away on Sunday.
Q: I thought that's why you went out the week before.
A: The reason I went out the week before is because Damon had already planned to take Derrick snowboarding and I told him that I probably couldn't go out that Friday.
Q: But on the Friday that on the 1st of February you had already made arrangements that you were going to go?
A: In the
. Q: I confused myself. When you were having pizza there
A: Yes. Q:
arrangements had already been made that you were going to go out with your friends Denise and Barbara? A: Yes. Q: how were you going to meet up? A: They drive to my house. Q: They live in the area? A: Tierra Santa. Q: About what time did they arrive? Do you remember? A: I think between 7:30 and 8:00. closer to 8:00. Q: Who was all at your house just right before they arrived? A: Danielle Derrick Dylan and Damon and myself. Q: The entire family? A: Yes. Q: Had dinner been completed? A: Yes. Q: When the girlfriends show up what happens? A: We
.I was cleaning up in the kitchen. we went into the garage. Q: For what reason? A: Denise and Barbara smoked cigarettes. And Barbara and Denise had a beer. Q: One a piece? A: No. They shared one. Q: Were there any drugs in the garage? A: And we
I'm sorry. I wasn't done. And we smoked marijuana. Q: How many cigarettes were there? A: What kind of
Q: Marijuana cigarettes A: There was only one. Q: Who all smoked it or just smoked on it? A: Denise Barbara Damon and myself. Q: Did you inhale? A: Yes. Q: How long would you say you were in the garage maam A: Probably about 15 minutes. Q: Did you have anything to drink in the garage? A: Diet Coke. Q: How about your husband? Do you know if he drank anything? A: I don't know. Q: Were both
. were all four of you in the garage for a solid period of time or were people coming and going? A: Damon wasn't out there for any long period of time. It was just the three girls. Q: And the kids were where? A: Derrick and Dylan were playing video games. Q: In the house? A: In the family room. And that's where Damon was playing with the boys. And Danielle was at the kitchen table reading a book and writing in her journal. Q: Do you have a lock on the door from the garage into the house? A: We do. Q: Is it in the customary position of how it's set up? A: It wasn't. Q: At that time? A: No. Q: Why not? A: Because we didn't want the kids to be able to open the door from the inside. Q: Why not? A: if we were out there smoking we didn't want them to walk in. Q: When you were smoking marijuana? A: Yes. Q: This wasn't the first time that you smoked it was it? A: No. Q: So explain to me the locking mechanism of how it works when it was reversed. Where can you lock it and what does it prevent? A: You lock the door from the inside of the garage instead of the inside of the house. Q: So the kids would not be able to get from the house into the garage if you'd locked it from the garage? A: Right. Q: And if you were inside the house and the door was locked and you wanted to get into the garage you'd have to use the key? A: Yes. Q: Is there also a side door to this garage? A: Yes. Q: Was anything done with that side door while you guys were out in the garage? A: It was open halfway. Q: Why? A: So that the smoke could go out. Q: Does that door lock? A: From the inside. Q: Standard mechanism? A: Yes. Q: And I don't know if I asked you but can you estimate for us how long you were in the garage with the girls? A: Approximately 15 minutes. Q: Then where did you go? A: We went back into the house.
Q: Do you know if anybody shut that side garage door?
A: No I don't.
Q: Do you know if anybody locked it?
A: No I don't.
Q: When you went back into the house what was going on then?
A: Damon and Derrick and Dylan were playing a video game in the family room. Danielle was still at the table reading a book and writing.
Q: Then what happened?
A: tidied up a little bit in the kitchen and then they were ready to go but I kind of thought it was a little early but we left anyway.
Q: About what time?
A: Approximately 8:30.
Q: And you went there directly to Dad's?
Q: Who drove?
A: I did.
Q: And who went with you?
A: Denise and Barbara.
Q: About how long does it take to get from your house to Dad's?
A: Five minutes.
Q: Were you expecting to meet anybody at Dad's that evening?
A: I was expecting that Dave Westerfield would be there.
Q: Because of the cookie conversation?
Q: How about any of your other friends?
Q: When you got there did you see anybody you recognized?
A: Dave Westerfield.
Q: Where was he?
A: He was already at the bar.
Q: And you and your girlfriends what did you guys do when you arrived?
A: We talked to the guy at the front door.
Q: Who's that
A: He..... he is the person who charges..... you have to pay a cover charge to get in or something. They were talking to him and then Barbara went directly up to Dave Westerfield and introduced herself to him.
Q: Oh yeah? Did you hear what they were discussing?
Q: Why not?
A: I was kind of behind her. She was in front of me.
Q: You were not in position?
Q: What did you do from there?
A: Denise Barbara and I sat at the bar in kind of a triangle formation.
Q: What do you mean by that?
Q: I confused myself. When you were having pizza there
Q: arrangements had already been made that you were going to go out with your friends Denise and Barbara?
Q: how were you going to meet up?
A: They drive to my house.
Q: They live in the area?
A: Tierra Santa.
Q: About what time did they arrive? Do you remember?
A: I think between 7:30 and 8:00. closer to 8:00.
Q: Who was all at your house just right before they arrived?
A: Danielle Derrick Dylan and Damon and myself.
Q: The entire family?
Q: Had dinner been completed?
Q: When the girlfriends show up what happens?
A: We .I was cleaning up in the kitchen. we went into the garage.
Q: For what reason?
A: Denise and Barbara smoked cigarettes. And Barbara and Denise had a beer.
Q: One a piece?
A: No. They shared one.
Q: Were there any drugs in the garage?
A: And we I'm sorry. I wasn't done. And we smoked marijuana.
Q: How many cigarettes were there?
A: What kind of
Q: Marijuana cigarettes
A: There was only one.
Q: Who all smoked it or just smoked on it?
A: Denise Barbara Damon and myself.
Q: Did you inhale?
Q: How long would you say you were in the garage maam
A: Probably about 15 minutes.
Q: Did you have anything to drink in the garage?
A: Diet Coke.
Q: How about your husband? Do you know if he drank anything?
A: I don't know.
Q: Were both . were all four of you in the garage for a solid period of time or were people coming and going?
A: Damon wasn't out there for any long period of time. It was just the three girls.
Q: And the kids were where?
A: Derrick and Dylan were playing video games.
Q: In the house?
A: In the family room. And that's where Damon was playing with the boys. And Danielle was at the kitchen table reading a book and writing in her journal.
Q: Do you have a lock on the door from the garage into the house?
A: We do.
Q: Is it in the customary position of how it's set up?
A: It wasn't.
Q: At that time?
Q: Why not?
A: Because we didn't want the kids to be able to open the door from the inside.
Q: Why not?
A: if we were out there smoking we didn't want them to walk in.
Q: When you were smoking marijuana?
Q: This wasn't the first time that you smoked it was it?
Q: So explain to me the locking mechanism of how it works when it was reversed. Where can you lock it and what does it prevent?
A: You lock the door from the inside of the garage instead of the inside of the house.
Q: So the kids would not be able to get from the house into the garage if you'd locked it from the garage?
Q: And if you were inside the house and the door was locked and you wanted to get into the garage you'd have to use the key?
Q: Is there also a side door to this garage?
Q: Was anything done with that side door while you guys were out in the garage?
A: It was open halfway.
A: So that the smoke could go out.
Q: Does that door lock?
A: From the inside.
Q: Standard mechanism?
Q: And I don't know if I asked you but can you estimate for us how long you were in the garage with the girls?
A: Approximately 15 minutes.
Q: Then where did you go?
A: We went back into the house.
A: We pulled one chair out and then there were two of us against the bar and one of them in the middle so that we could talk.
Q: How about Mr. Westerfield? Where was he and how was he positioned?
A: He was behind me.
Q: So he'd be looking at your back?
Q: Was he part of your conversation?
A: when we first got there he said..... was he part of our conversation?
Q: Yeah. That's what I'm....right now that's what I'm looking for.
Q: Did he say anything as you guys came in and took your seats at the bar.....to you guys as a group?
A: He said "Ladies don't buy drinks their own drinks " and he threw some money on the counter and asked if he could buy us a drink.
Q: Did you let him?
Q: All three of you allowed him to buy you drinks?
Q: What did you get?
A: I got a cranberry-vodka.
Q: How many rounds did he buy for you guys?
A: I don't know exactly.
Q: Was it more than one?
A: I don't know.
Q: Why don't you know?
A: He left the money on the counter so and then later when we played pool I was getting drinks from ...Denise was handing them to me but I didn't know who they came from.
Q: When the three of you were there in your triangle were you including Mr. Westerfield in your
Q: What was he doing or how was he behaving during that time?
A: He had .... he was behind me and he had two other friends with him.
Q: Male or female?
Q: How do you know they were friends?
A: I think at one point .....well at one point he introduced us to them.
Q: Do you remember the names?
Q: What's the next thing that happened that you remember?
A: Keith and Rich showed up.
Q: Who were they?
A: Rich is a very good friend of mine. It's her husband.
Q: Whose husband?
A: Liz Brady.
Q: Liz Brady is a friend of yours?
Q: And Rich
A: Rich Brady is her husband.
Q: How long have you known them?
A: I've known Liz since Dylan was in preschool so approximately two years.
Q: so how long have you known Rich?
A: Same amount of time.
Q: And the other fellow's name was what?
Q: Who is he?
A: Keith is Rich..... is Liz's brother-in-law.
Q: Do you know if they were at the .... Dad's for a reason that evening?
A: When they came in they told me .... or told us that Keith had a friend in the band they came to watch.
Q: So there was a band playing that night?
Q: Did you interact with Keith and Rich once they arrived?
A: Rich stood next to me in one spot and Keith walked over to Barbara and stood next to her and
Q: What were you guys doing?
A: We talked for a while. I told them that we were going to Italy. I was very excited about the
trip. I can't remember the rest of the conversation.
Q: Did there come a time when you guys quit talking and something else started?
A: Yes. I know there was one point .....yes we went to play pool. Q: What were you going back there for
Q: How many pool tables do they have there? Do you remember?
Q: Who all went to play pool?
A: Barbara and Keith were going to play. They're the ones who brought it up. And they played at
one table. And Denise and I were going to play at the other table.
Q: You any good?
A: Not really.
Q: How about the other friends that you were with? What were they going to do?
A: Keith was playing with Barbara and Rich wasn't playing.
Q: How about Mr. Westerfield? What was he doing if you can ... were aware of what he was doing?
A: I remember at one point he was just standing on the side watching us.
Q: Did he ever play pool with you guys?
Q: Any idea how many games you played or did you keep the same partners the whole time?
A: Well the two friends that Mr. Westerfield was with they came up and asked if they could play with
Q: Did you let them join in?
A: So we let them play from the beginning.
Q: And how did you break up that
A: Denise divided us into teams and I don't remember the person's name I was with but I played
with one of them and she played with the other one.
Q: Against each other?
Q: So four of you were on the table?
Q: Did you ever switch partners?
A: At the last game I asked Denise if she would switch because they had won the first two games
and I told her I couldn't leave without winning one. So they said "No no no" but somehow after the
break I ended up with the other partner. I don't know how it happened but ....
Q: Did you win the last game?
Q: Then what?
A: by that time the band was playing and people were dancing.
Q: Were you dancing?
Q: With whom?
A: I danced with Keith and I danced with Rich. And towards the end of the evening there was a gentleman who came up and asked me to dance.
Q: Somebody you knew?
Q: Just somebody who was in the bar?
Q: Did you get his name?
A: I talked to him for a while. And I know the company he owns and all that but I don't remember ....
during the dance I don't remember his name.
Q: How about Mr. Westerfield? Did you dance with him?
Q: Did you see him dance at all?
A: I don't recall.
Q: What kind of band was it?
A: I think they played '80s music.
Q: Fast dancing or slow dancing or both?
A: There were both.
Q: Any idea how long you were dancing that evening?
A: most of the evening.
Q: Which takes us about how many hours if you can tell?
A: How many hours of dancing?
A: probably approximately three.
Q: Do you know if Mr. Westerfield remained at the bar the entire time you stayed there?
A: No I don't.
Q: Why not?
A: Because I wasn't paying attention to him.
Q: How much would you say you had to drink for that night?
A: I had three cranberry and vodkas a shot of tequila and a Red Bull.
Q: Help me out. What's a "Red Bull"?
A: It's an energy drink.
Q: Is it an alcoholic drink?
Q: In the sequence of drinks can you remember how you went through 'em? Was the Red Bull at the beginning? Middle? End?
A: The Red Bull was at the end.
Q: And after the Red Bull did you drink anything beyond that?
Q: Why not?
A: Because I would be driving home soon.
Q: Did you drink anything of a nonalcoholic nature?
A: Not that I recall.
Q: Did you have any water?
A: I did.
Q: You were going to be a driver home?
Q: And how about your girlfriends? Were they also drinking?
Q: What? Do you remember?
A: Barbara drank some vodka and tonic and Denise was drinking vodka and cranberry.
Q: Were you keeping track of how many drinks they had?
Q: Did you remain inside the building the entire time you were at Dad's?
Q: How many times did you go outside the building?
Q: About when in the sequence that you described for us?
A: In the middle of the ....it was after we
Q: And before dancing had started or in the
middle of the dancing?
A: In the middle of the dancing.
Q: Who all went outside?
A: Barbara Denise Keith and Rich and I.
Q: Five of you?
Q: How about Mr. Westerfield? Did he go out?
Q: Did you see him outside?
Q: What did you do when you went..... or where did you go when you went outside?
A: Went to my truck.
A: We were going to smoke marijuana.
Q: How much did you have?
A: hat we smoked from the same one that was at the house.
Q: Same cigarette?
Q: Didn't have any others?
Q: You didn't have any other .....had any other stash in the car or truck or anywhere else?
A: Not that I know of.
Q: All right. Who all took puffs on it if you can remember?
A: I know definitely Denise and Barb and I did.
Q: Were you guys inside the vehicle or outside? How were you hanging out?
A: Denise and Barb were inside the vehicle. We turned on music. Keith was on Barbara's side and Rich
was on my side talking to me.
Q: And you were inside the car?
Q: Which seat?
A: Driver's seat.
Q: What else went on out there?
A: I don't know. Nothing.
Q: Any sex?
Q: Any kissing?
A: I don't recall.
Q: Did you get involved in any kissing?
Q: How long would you say you were out there?
A: probably.... approximately 10 minutes.
Q: Then where did you go?
A: Went back into the .... into Dad's.
Q: Can you estimate for us about what time that was if at all possible?
A: I can't.
Q: Do you know if Mr. Westerfield was still present at Dad's when you came back in?
A: I don't know.
Q: Were you paying attention to him?
Q: Why not?
A: I don't know. I just ....I was with my friends.
Q: Do you remember about what time you left Dad's?
A: It was approximately 10 till 2:00. I know they had had last call. And Denise and Barbara were in the little smoking area.
Q: For cigarettes or for marijuana?
Q: All right. Then what do you remember?
A: I told them that it was time to go and that I was going to go get the truck and pull it up front.
Q: Did you go by yourself
A: To get the truck? Yes.
Q: And after you got the truck where did you go? What was the plan?
A: Oh we were going back to my house.
Q: Who all was going to go back?
A: Barbara and Denise and Keith and Rich.
Q: What were you going back there for
A: Keith was very interested in Barbara and he asked me he said you gotta make this happen for me and I said well you can come back to the house for a minute and talk to her and that's about all I can do. And Barbara and Denise had to come back to the house to get their car.
Q: When you got your truck how quickly did you meet up with your girlfriends and these two guys?
A: It was a matter ... oh meet up with....
Q: There after you got your truck.
A: Well I got my truck and I went to the window and I told them it was time to go. They came
outside. They got into the truck and we left. When I was on Poway Road a little bit down
Barbara said "I forgot my cigarettes." So we made a U-turn. We went back to Dad's. She went in and got them. And then we went..... we left again to go to my house.
Q: How about the two guys? Where were they?
A: I don't know where they were at the time but when we got to Springhurst and Poway Road to turn left
they were in front of us.
Q: Is that where you turned left into your neighborhood?
Q: Is that a "yes"?
A: Yes. I'm sorry.
JUDGE: It's all right. I do it all the time. Go ahead.
Q: You told us about the alcohol you had been drinking that night and you told us about the marijuana
that you had been puffing on. How clearheaded were you? What impact at all did it have on you?
FELDMAN: Objection. Calls for speculation.
FELDMAN: Calls for a conclusion.
A: Do I answer that?
A: OK. I think I was very clearheaded.
Q: How long had you been drinking that night? When did you start?
A: Probably about 8:45.
Q: At the bar?
Q: Is that a "yes"?
Q: And when did you quit?
A: About 1:30.
Q: Quit drinking alcohol at 1:30?
A: Could have been a little bit earlier than that.
Q: Were you able to drive home OK?
Q: When you got home describe what happened as you pull up.
A: I pulled into the driveway. Keith and Rich were in Keith's car. They were in front of us. They
pulled up in front of the house. We got out of the truck went to the door. They were still getting out of
Q: Went to the front door?
A: To the front door.
Q: Then what happened?
A: I opened the door with a key and we all went in.
Q: Meaning all five of you?
A: Denise and Barbara and I were in first and Keith and Rich were still walking up to the house.
Q: As you got inside did you see anybody?
Q: Your husband or any kids? Were they up at that time?
A: Well I looked upstairs and the TV was on in our bedroom.
Q: How could you tell?
A: It was .... the door was open and I could tell it was the TV light .... the light.
Q: Did you actually see the TV?
Q: Once everybody got inside what did you do?
A: When I first stepped into the house I could see out of the corner of my left eye that there was a
blinking light on the control panel to the alarm.
Q: Describe that for us. What is it?
A: It's just a red light that indicates that there's a door or window open.
Q: Where is it on the wall in relation to the front door?
A: It's when you walk into the house it's directly to your left in the hallway next to the garage that goes
into the garage..... the door that goes into the garage.
Q: It's on the wall at about what waist level or so?
A: Eye level.
Q: A nd there are several lights along there?
A: Yes it's vertical.
Q: The lights are they aligned with a particular window or door?
A: They are.
Q: So if you know which light's on you know which window to go check which door to go check?
Q: And one light was activated?
Q: What does that mean?
A: That means that there's a door or window open.
Q: Does it have an alarm that either goes off inside the house or alerts a security agency?
Q: It doesn't have one or you just don't have it hooked up? Do you know?
A: Well it..... we can have a security company monitor it but we don't have one right now.
Q: And if the house is secure all the lights are off; is that correct?
Q: And if somebody opens a door what kind of alert or light or sound goes off?
A: When you first open the door there will be beep beep beep it tells you that someone has opened a
door or window.
Q: Does it go on continuously?
Q: How long does it go?
A: Just for a few seconds.
Q: And how loud?
A: It's not very loud.
Q: How many monitors do you have in your house?
Q: That one by the front door and?
Q: where is the other one?
A: In the master bedroom.
Q: When you saw the light what did you do?
A: I told Denise that there was a door open or a window and I needed to find it. And I first ran
upstairs to tell Damon that two of..... that Rich was here and asked I him if he wanted to come down and say "hello."
Q: Then what did you do?
A: I went back downstairs and started looking for the door that was open.
Q: Did you find it?
Q: Which one?
A: It was the outside garage door.
Q: The door that goes from the inside of the garage to the outside of the house?
Q: Is that the door that you told us had been opened for the smoke?
Q: Was it actually ajar or just unlocked?
A: It was ajar.
Q: Did you look outside the door to see if anything was unusual out there?
A: No. Denise was the one who walked up to it and closed it.
Q: Do you know if it was locked at that time after it was closed?
A: I don't know if she locked it.
Q: What did you do then?
A: I went back inside. Keith and Rich had already come in. They were sitting in the living room.
Q: And Denise was with you?
A: Denise was with me.
Q: Where was Barbara?
A: Barbara had gone upstairs.
Q: Do you know where she went?
A: She went to the bedroom.
Q: Where your husband was?
Q: Did you see her actually go into the bedroom? Were you up there when she went in?
A: No. Keith and Rich started joking around.
FELDMAN: Objection. (garbled)
JUDGE: I know. He's right. The answer is stricken.
Q: Did you eventually go upstairs?
A: Because Keith and Rich were saying "Where's Barbara? Where's Barbara?"
And I said..... they said "She's upstairs." So I went up and I told..... I asked Damon
again to come down.
Q: What was going on?
A: She was laying on the bed on top of the covers and Damon was under the covers and they were
Q: Is that all you saw?
A: That's all I saw.
Q: What did you tell them?
A: I told them both that they were being rude and that they needed to come downstairs.
Q: Did they?
Q: Immediately or sometime later?
Q: What happened when they came downstairs?
A: Denise was in the kitchen heating up leftover pizza.
Q: Where did the pizza come from?
Q: Then what?
A: We all ate a slice of pizza had some soda or water.
Q: Any alcohol?
Q: Did you have alcohol at the house?
Q: What? What type of alcohol?
A: What type of alcohol? We have beer and vodka. A: Recycle them.
Q: When you finish with the beer containers what do you do with them?
Q: Where do you put them?
A: In the recycle bin.
Q: Where is that?
A: Outside of the garage door.
Q: Is that where some of the cans had been recycled?
Q: Empty bottles?
Q: After you had the pizza then what happened?
A: The girls said that they wanted to leave and I walked them out front.
Q: Can you estimate for us how long you had been at the house after returning from Dad's until they left?
A: Approximately 15 to 20 minutes.
Q: That's all?
Q: What about the guys? What did they do?
A: When I walked back in from saying goodbye to my friends Damon said something to the effect of You know I don't want to kick you out but we're tired. And they said OK and they left.
Q: Both guys left?
A: Recycle them.
Q: Are you sure?
Q: After they left did you lock up?
Q: Then what did you do?
A: We went to bed.
Q: You and Damon?
Q: How about the kids? Did you check on them?
Q: Why not?
A: When I came home and went upstairs to ask Damon to come down I asked him how the bedtime tuck in
went. And he said it went fine. I asked him if he had hugged and kissed everybody goodnight. And he said "Yes." And I asked him if anyone had asked for me and he said "no" so I had no reason to check on them.
Q: And your husband went to bed that evening then is that right?
A: When I went to bed?
Q: About what time would you estimate you went to bed?
A: About 2:30.
Q: What's the next thing that you remember happening after you went to bed and then fell asleep I assume?
A: I remember Damon saying something about the dog and he got out of bed.
Q: Do you know what time it was?
A: No I don't.
Q: Why not?
A: Because I was very tired.
Q: Were you even aware of him doing anything you know when the conversation about the dog was had?
Q: What's the next thing you remember happening?
A: I woke up about 8:15 in the morning.
Q: So from the dog until your wakeup you weren't aware of anything happening?
A: No. Right.
Q: Were you up before or after your husband?
Q: What did you do once you got up?
A: I laid in the bed for about 10 more minutes and then I realized that I had committed myself to
baby-sitting for my neighbor.
Q: What day of the week was this?
Q: And what do you mean committed to baby sitting
A: She asked me if I would watch her children for a couple of hours while they ran an errand.
Q: Where does this family live?
A: Across the street.
Q: How many kids do they have?
Q: Ages? About.
A: 8 and 5.
Q: Had you baby-sat for her before?
Q: Had she baby-sat for you before?
Q: How good of friends were you?
A: We're friends.
Q: What time did she come over with her kids?
Q: So what did you do?
A: I took a shower and got dressed. I went downstairs.
Q: What was going on downstairs?
A: I was asking who wanted what for breakfast.
Q: Who was down there?
A: Derrick and Dylan and Damon.
Q: Danielle wasn't down there?
Q: Is that unusual?
A: No. Q: Did she ever sleepwalk? A: Just to the bathroom. A: I called Julie and I asked her to come back and get her children because I couldn't find Danielle. And they were getting very upset the two of them. A: Damon and I and the two boys. Q: Why was that out? A: Yes. Q: Were there any holes in the wall? A: Yes. A: We were fingerprinted we were DNA-swabbed. Q: Do you have a dog? A: Yes. Q: How do you keep her in there at night? Q: Has he ever been invited in your garage or any part of your property? A: 7 Q: How tight of a reign did you have on her regarding her ability to wander around the neighborhood and go visit people? Q: Did they comply with that rule? Q: Did they come and actually ask you to cross the street? Q: What type of restrictions do you place on her being able to do that? Q: And did she live with that rule? Comply with it? A: Within eyesight. A: She was about 60 pounds.
Q: Why not?
A: She was a late sleeper.
Q: How heavy does she sleep? How solidly?
A: Pretty heavy.
Q: How do you know?
A: Because when we go on trips sometimes we'll leave very early in the morning and we will carry them
down the stairs and put them into the car while they're sleeping.
Q: Can you carry her?
A: Not anymore.
Q: How about your husband? Is he big enough and strong enough to carry her?
Q: He doesn't have to drag her? He's strong enough to carry her in his arms?
Q: Do you remember if you made anything for breakfast?
A: I started. I was getting things out and then the doorbell rang.
Q: What were you starting to make?
Q: And how did the doorbell interrupt you?
A: I was just getting stuff out at the time.
Q: And what did you do when the doorbell went off?
A: I answered the door and it was Julie with her two children. They came in and I told her daughter that she could.... I told her that Danielle wasn't awake but that she could go and wake her if she wanted to because it was late enough.
Q: So what did she do? The daughter?
A: From what I recall she went into the family room and started playing with the boys.
Q: She didn't go upstairs?
A: Not that I know of.
Q: Did anyone go check on Danielle
A: I started cracking eggs. I think I got two cracked and then I realized that she hadn't gone up to get Danielle and I thought I'd do it myself.
Q: Did you?
A: Yes. I went up into her room.
Q: Can you remember if her door was open or closed or somewhere in between?
A: It was open.
Q: How open?
A: All the way open.
Q: And as you stand in the doorway to her room what are you able to see as the door is open?
A: Her bed.
Q: Describe the bed for us would you?
A: Her bed had a lot of items on it. She had put her beanbag on there it had a big dog.
Q: The style of the bed is what I want
A: Oh the style of the bed? It's a four-poster white bed with a cloth ... a screen that hangs over it.
Q: Kind of like a netting?
A: A netting.
Q: What's the color of the bedroom?
A: Pink and purple.
Q: Did she have any girly stuff on the walls?
Q: Did you go in?
Q: What did you find?
A: An empty bed.
Q: Didn't find Danielle?
Q: What did you do?
A: I asked Damon if he had seen her. And he said..... I asked him if she slept in her bed because
sometimes she would sleep..... they like to sleep in Derrick's room. He has an extra bed.
Q: What did he say?
A: He said that he tucked her into her bed.
Q: So what did you do then maam?
A: I looked into the bathroom because sometimes she gets up and she'll sit there for a little while. And I started calling her name. I started looking under the beds and into the other rooms. And then I..... you know during that time I told Damon I couldn't find her. And he ran upstairs and we started looking everywhere. And we looked downstairs.
Q: What was your emotional state?
Q: Had she ever wandered away before?
Q: How far is that?
A: Right outside her door.
Q: What was your husband doing?
A: He..... during this time? He was downstairs. And I told him I couldn't find her and he ran upstairs and he looked through the house and he went out front and started looking.
Q: And your neighbor was she still in the house?
A: She wasn't. I .... I went out back and looked some. Looked in the Jacuzzi and places you would never want to look. And then I called 911.
Q: How quickly?
A: I don't remember how quickly but it wasn't very long.
Q: You weren't timing this were you?
Q: Are you able to estimate for us..... well did law enforcement show up in response to your 911 call?
Q: Are you able to estimate for us how long it took them to get there?
Q: What were you doing in the meantime?
Q: Which two?
A: Her two children and my two children were getting very upset because we couldn't find Danielle. So I called her and I told her I couldn't find Danielle and I asked her to come back and get her children.
Q: And how about your two boys?
A: They stayed in the family room with them. I looked in the neighbor's yard next door.
Q: When the police arrived what happened?
JUDGE: Are you OK? You want a break?
A: I'm OK. we told him that we couldn't find Danielle and he started..... he walked through the house with us I think.
Q: Was this a uniformed officer?
Q: Then what happened?
A: We had to stay outside the house.
Q: We being who?
Q: Were you given a reason?
A: until the investigators got there
Q: Investigators ....did they eventually show up?
Q: Were they in uniform or were they in plain clothes?
A: I don't recall.
Q: What happened when they arrived?
A: It's so hard to remember.
Q: Did you speak with them?
Q: Were you inside or outside the house?
A: We went inside and showed them the room.
Q: We being who?
A: I'm..... Damon and I.
Q: Then what happened?
A: Before I knew it it was total chaos.
Q: What do you mean by that?
A: There were lots of people on the street searching for Danielle. Our neighbors came out and started helping us in any way they could. One of our neighbors made posters.. I mean flyers "Missing Child."
Q: Did you spend that evening in your house?
Q: Why not?
A: We weren't allowed back in.
Q: By whom?
A: The police department.
Q: Did they tell you why?
A: Because they were investigating it. Searching for evidence.
Q: When did your husband vacuum the house to hide evidence?
A: My husband doesn't vacuum the house.
Q: We heard at least questions the other day that he was vacuuming the house destroying evidence. Did that ever happen?
Q: Did you have a vacuum cleaner out that morning?
Q: Where was it?
A: It was upstairs in the little hall area. Not..... just sitting next to the wall.
Q: Why was it out there?
A: Because I was going to vacuum that weekend.
Q: Do you also have a steam cleaner?
Q: Where was that?
A: It was in my bedroom.
A: It was out because a couple days prior to Danielle missing the dog had peed in her room in two places. She wanted the dog to sleep in her room. And the dog peed in her room and I had to steam clean it up.
Q: Are you telling us that your husband didn't vacuum up evidence before the police got there?
Q: Did you assist the police in their requests of you and your husband?
Q: How about the vacuum cleaner? Was anything done with regard to that with the police?
A: They actually took the steam cleaner.
Q: How about the vacuum cleaner? Did they eventually take that?
A: They took the bag.
Q: Which bag?
A: The vacuum cleaner bag?
Q: Yeah. Where was the vacuum cleaner bag?
A: It was inside the canister.
Q: Was there one also outside in the trash can?
Q: Why was it out there?
A: Because it was full.
Q: When did you put it out there?
A: when I vacuumed the downstairs and take..... carried the vacuum up the stairs to vacuum upstairs later I changed the bag.
Q: Was that before Danielle was taken?
Q: How long were you kept out of your house once the police took over the house?
A: A day.
Q: And when..... were you told anything after the police finished their searching about whether or not you could go back into the house?
Q: What did they tell you?
A: They told us we could return to our home.
Q: Did they say what to do or not to do once you got back inside?
A: Actually I asked them specifically what happened as I went to the house. And I walked in
FELDMAN: Excuse me. No question pending. Objection.
JUDGE: Sustain..... I understand. Sustained. The answer is stricken.
Please ask another question.
Q: When you walked back to the house and you went inside what did you see?
A: It was all black.
Q: What do you mean by that?
A: The tile was black. The banister was black. There was fingerprinting dust everywhere.
A: Not at the time.
Q: Eventually were there?
A: they sprayed a chemical on the wall to lift fingerprints and they had to take the drywall out.
Q: Did you let them?
A: Because I'd do anything to get my daughter back.
Q: When you saw the condition of your house once you first returned there what did you do?
A: I told my friends that I couldn't let my boys come into that because it would be..... it would scare them.
Q: So what did you do?
A: They got ....they asked some neighborhood moms to clean.
Q: Who asked?
A: My friend.
Q: Your friend asked some neighborhood moms to help you clean?
A: Yes. I didn't clean.
Q: What was your condition?
A: I was devastated.
Q: Do you know whether or not the neighborhood moms started to clean?
A: After... after I asked for them to clean.
Q: Did the police tell you anything at all about whether or not you could clean at that time?
A: They actually told me I could clean the whole house. And I specifically asked them about Danielle's bedroom. And they said to clean it. And I specifically said it twice and I said "If I clean that bedroom and you come back to me and ask me for evidence you are going to be on my poop list."
Q: Where did they start cleaning?
Q: Did they complete the cleaning job?
Q: Did they go upstairs?
A: No. Damon and I decided that we didn't want them to clean the room just in case there was anything else that they would get out of it that could help find Danielle.
Q: Was anything done to protect the room?
A: We put a gate in front of the door and a "Do Not Enter" sign on the door.
Q: Has anyone cleaned that room since?
Q: Anyone allowed in that room?
Q: Have you gone in there?
Q: Have the police come to you and your husband and your sons seeking your cooperation in providing evidence or samples in this case?
Q: What have you provided?
A: Anything they asked for.
Q: Such as
Q: Your boys also?
A: Yes. And they took hair samples.
Q: What kind of dog?
Q: Dog have a name?
Q: Does the dog bark?
Q: Why not?
A: I really don't know exactly why she doesn't bark but I know that when we bought..... bought her from the breeder the breeder had the larynx removed from her dogs and Layla has never really barked.
Q: The type of dog you have is it a long-haired or short-haired dog?
Q: How old?
A: She turned a year in February.
Q: Where do you keep her?
A: In the house.
Q: She's a house dog?
Q: Where does she customarily sleep?
A: In my room next to my side of the bed.
A: Close the door.
Q: Did the police take any items of clothing from your house?
A: They took clothing from Danielle's room.
Q: How about any bedding?
A: They took her bedding.
Q: Any furniture pieces?
Q: Did you let them take everything they wanted?
Q: Have you stood in the way of anything they've asked you..... asked you to do?
Q: Has David Westerfield ever been in your house as far as you know?
Q: Has he ever been invited in your house?
Q: We've heard at least allegations or perhaps even some evidence about possible blood drops along the stairwell or stairway going upstairs. Did you see any of the police officers or any of the lab people doing their work in your house?
Q: Had anyone been bloody in your house within a period of time before Danielle was missing?
A: Just the dog.
Q: What happened to the dog?
A: She was running around the backyard and she ran into Damon's leg and busted her nose open.
Q: Did it bleed?
A: It bled a lot.
Q: Did you see the specs that were on the wall that the officers were collecting?
Q: Either then or afterwards?
A: I didn't.
Q: Do you know how they would have gotten there if they're even blood?
A: From the dog.
FELDMAN: Objection. Calls for speculation. No foundation.
JUDGE: Sustained. The answer is stricken.
Q: Danielle was how old?
A: She wasn't allowed to.
Q: How about your other children? What kind of restrictions did you have on all of them?
A: Before they went anywhere they had to ask me. even if they.... if they saw the children across
the street out they had to come in and ask me if they could cross the street.
Q: They weren't allowed to cross the street on their own?
Q: Why not?
A: Because I needed to know where they were at all times.
Q: How long had that rule been in effect?
A: Since..... since they knew what rules were. I mean
Q: How do you know?
A: Because I've never found them anywhere that they shouldn't have been.
Q: And when they did that what would you do?
A: I would walk out front and watch them cross. I would make sure that the neighbor across the street knew they were there.
Q: Danielle..... can she wander beyond your house or your block..... to friends houses type thing?
A: Yes. She is allowed to..... not without asking permission first..... she is allowed to ride her bike up the hill and down.
Q: The "hill" is which street?
A: Mountain Pass.
Q: The street you live on?
Q: And when she rides that is she on the street or the sidewalk?
Q: And is she able to walk to any friends that live in your block?
A: She has walked to the cul-de-sac.
Q: And do you have to cross the street to get there?
A: You do.
A: She has to ask permission first and I have to make sure that the other mom knows she's coming.
Q: So she's going to a known destination?
Q: Is there a park down at one end of your street?
Q: To get to the park do you have to cross a street?
Q: And then do you have to go by Mr. Westerfield's house?
Q: Was she permitted to go down there?
A: She was down there maybe two times without me but I was in the driveway watching.
Q: Would she ask permission to go down there?
Q: How far away is this park would you say? Within eyesight or not?
Q: I forgot to show you something earlier. I've had marked as People's Exhibit 6 this three-page document looks like a Girl Scout cookie form. Let me ask you to look at Exhibit 6 Mrs. Van Dam. It appears to be a xerox copy but do you recognize what it is?
Q: What is it?
A: It's a Girl Scout cookie order form.
Q: Now there are currently three pages is that correct?
Q: Is that the form you and Danielle were filling out
Q: ..... when you went to Mr. Westerfield's house?
Q: Does it show the people that agreed to buy some of the cookies?
Q: Did Mr. Westerfield agree to buy any cookies?
Q: How many and what type?
A: He agreed to buy four boxes of cookies two were Samoas one was Aloha chips and he then donated one box to 'Operation Thin Mint.'
Q: What does that mean?
A: It means that this year the Girl Scout Council decided to try and get 5 000 boxes of cookies donated to the men and women overseas and they were going to ship Thin Mints over to them.
Q: When Danielle sleeps what does she wear?
A: Her pajamas.
Q: Describe those for us.
A: They were blue..... light baby blue. The pants only went down to her mid calf. They had flowers on the bottom cascading lightly up and the top was kind of like a tank top. And it also had flowers on the bottom and it had some butterflies cascading up.
Q: Did she sleep with anything on her feet
Q: ..... like slippers or socks?
Q: so the skin would be exposed when she's sleeping on her feet?
Q: How long is her hair?
A: We had just had it cut. It was shoulder length.
Q: Height and weight if you can tell us?
Q: And how tall?
A: Four feet.
Q: Did she have any cuts scrapes scabs ....anything that was bleeding or had bled at the time she was missing?
Q: How about before that? Do you recall any cuts scabs blood .... anything where she had been hurt?
MR. DUSEK: Thank you maam.
Q: Did she ever sleepwalk?
A: Just to the bathroom.
A: I called Julie and I asked her to come back and get her children because I couldn't find Danielle. And they were getting very upset the two of them.
A: Damon and I and the two boys.
Q: Why was that out?
Q: Were there any holes in the wall?
A: We were fingerprinted we were DNA-swabbed.
Q: Do you have a dog?
Q: How do you keep her in there at night?
Q: Has he ever been invited in your garage or any part of your property?
Q: How tight of a reign did you have on her regarding her ability to wander around the neighborhood and go visit people?
Q: Did they comply with that rule?
Q: Did they come and actually ask you to cross the street?
Q: What type of restrictions do you place on her being able to do that?
Q: And did she live with that rule? Comply with it?
A: Within eyesight.
A: She was about 60 pounds.
By Kristen Green
UNION-TRIBUNE STAFF WRITER
March 15, 2002
A chronology of events surrounding Danielle van Dam's disappearance, as outlined by Brenda and Damon van Dam in court yesterday:
FRIDAY, FEB. 15:30 p.m.: Brenda, Danielle and Danielle's two brothers arrive at their Sabre Springs home after running errands. Brenda orders a pizza from Domino's, then leaves to pick it up.
6:30: Damon comes home from work. Brenda returns a few minutes later and the family eats dinner. Damon plays video games with his sons while Danielle reads and writes in her journal.
About 7:30: Two of Brenda's friends arrive. The women go to the garage, where they smoke a marijuana cigarette. The friends, Barbara and Denise, share a beer. Damon joins them for a few minutes, taking a drag or two off the joint. They open a side door to let out smoke.
About 8: Brenda and her friends leave for Dad's Cafe in Poway, about a five-minute drive. Brenda notices David Westerfield is there.
Within the hour, the women run into some male friends -- Keith and Rich. They talk for a while, then the women play pool. They dance for hours, and at one point go outside to smoke marijuana in Brenda's truck.
Back in Sabre Springs, Damon puts the children to bed about 10 and watches television downstairs for a while. He then retreats to the bedroom.
10:45: Damon turns off the TV and drifts off to sleep.
SATURDAY, FEB. 2About 1:45 a.m.: The family dog wakes Damon. He lets it outside for a few minutes. Then he crawls back into bed, switching on the TV while he waits for Brenda to get home.
1:50 a.m.: Brenda arrives home with her friends. The male friends follow in another car.
The group goes inside for leftover pizza, and Brenda notices that an alarm light is flickering. She walks upstairs to tell Damon she's home.
Barbara goes upstairs and climbs on top of the covers next to Damon, who is under the sheets. He puts his arm around her, kisses her and rubs her back.
Brenda heads downstairs to look for an open door or window. The side door in the garage is open, and one of her friends closes it.
Brenda goes back upstairs, tells Damon and Barbara they are being rude and asks them to go downstairs. They have pizza.
2:30: The visitors leave and the van Dams go to bed.
About 2:45 to 3: Damon wakes and notices the security light blinking. He finds a sliding glass door open downstairs. After closing it, he goes back to bed.
8:15: Damon wakes.
Just before 9: Brenda gets up and takes a shower.
About 9:30: A neighbor drops off her children for Brenda to baby-sit. Brenda goes upstairs to check on Danielle and finds her daughter's door open and "an empty bed." She and Damon frantically search the house. Unable to find Danielle, Brenda calls 911.
|Damon Van Dam Preliminary Hearing Transcript
Please take the stand sir
Q: Mr. Van Dam. Please tell us your name
A: Peter Damon Van Dam
Q: Thank you. And how do you spell Damon?
Thank you. Go ahead counsel.
Q: Are you married Mr. Van Dam?
A: Yes I am.
Q: How long have you been married?
A: 13 yrs
Q: Name of your wife?
A: Brenda Van Dam
Q: How many children?
Q: Oldest name is?
Q: How old is he?
A: Derrick just turned 10 I'm sorry
Q: You a little nervous?
A: Just a little
COMMENT: There's some water up there.
Q: Danielle's your second child?
Q: How old is she?
Q: And your youngest child's name is?
Q: How old is he?
A: He's 5
Q: Where do you live sir?
A: 12011 Mountain Pass Road
Q: Is that in the Sabre Springs area of San Diego?
Q: How long have you lived there?
A: about 3 years
Q: Do you work sir?
Q: what days of the week?
A: Mon - Fri
Q: And how about your wife. Does she work outside the home?
A: she has a part time job selling books
Q: How long has she been doing that?
A: About six months. Something like that.
Q: How long have you lived in that neighborhood?
A: About 3 years
Q: Do you know an individual by the name of David Westerfield?
A: Yes I do
Q: Do you see him in court today?
A: Yes I do
Q: Would you point him out please and describe what's he's wearing today
A: Gray suit, white shirt...
Judge comment: He's identified Mr. Westerfield
Q: was he living in the neighborhood when you folks moved in?
Q: up until this situation with Danielle as missing could you describe your relationship with Mr. Westerfield?
A: I spoke with him when we first moved in
Q: you mean like the first week or so or?
A: First month or so maybe I'm not sure. It was a long time ago. Spoke with him for about 5 minutes about a dune buggy he had in his garage and have waved at him since then. And maybe 6 months to a year ago spoke with him about some rocks that were in the street in front of his house and a car had hit them. he was cleaning up the rocks on our side of the street....our side of the corner. Spoke with him a few minutes about the car that had hit the rocks.
Q: How would you describe...did you know his name up until your daughter was missing?
A: No. Up till a few days before when my wife told me his name no I didn't know his name.
Q: Had you ever socialized with him?
Q: To your knowledge had he ever been to your house?
Q: Had you ever been to his house?
Q: Well inside his house. Had you ever been inside his house?
JUDGE: Try the question again please
Q: Had you ever been inside his home?
A: No never inside
Q: Had you been on his property?
A: In his driveway. 3years ago when I spoke with him about the car was the only time.
Q: I'd like to direct your attention back to the last day you saw Danielle. Feb 1st on Friday. Did you work that day?
A: Yes I worked that day
Q: Do you remember about what time you got off work?
A: It was around 6:30
Q: How do you get home?
A: I drove home that day
Q: And got home at about what time
A: about 6:30 I believe
Q: Did you have any plans for the weekend
A: I originally had plans for the weekend that I cancelled
Q: What were the original plans
A: To go snowboarding with my son
Q: Where were you going to go ?
A: Big Bear
Q: Were you going to go with anyone?
A: With.... Yes Bill Libby
Q: And was he going to bring anybody along?
A: His son Derrick and his friend Patrick
Q: How long were you going to go up there for?
A: Just for a day
Q: What happened to the plans
A: I believe the original plans were to not go with Bill and we changed the plans to going with Bill on Sunday instead of going on Saturday. It's kind of hazy now.
Q: All right. Do you remember why the trip was delayed one day?
A: Because Bill wanted to go Sunday. I think I was going to go alone Saturday and then Bill wanted to go Sunday. So we changed to going Sunday with Bill.
Q: On that Friday after you got home what was going on at your place?
A: My wife had just gotten home with pizza and we ate dinner with the kids.
Q: Was anyone going out that evening?
A: Brenda was going out that evening
Q: With whom
A: her friends
Q: Do you know where they were going?
A: Dads cafe
Q: And what were you going to do while she was gone
A: Watch the kids
Q: Did anybody come over that evening?
A: Yes. Her two friends Denise and Barbara
Q: What were you guys doing when they showed up
A: When they showed up I was playing video games with the 2 boys in the living room and Danielle was at the kitchen table reading a book
Q: What happened when the 2 girlfriends showed up
A: I said hello. Brenda was still upstairs. I went to the door and let them in and talked to them for just a minute. I believe they sat down at the kitchen table with Danielle. And I went back to playing video games with the boys.
Q: That evening after you got home from work did you have anything to drink?
A: I had 2 beers with dinner, the pizza, and then 1 beer later playing games with the boys. We ate some more pizza. That was after they had left
Q: All right. After the 2 girlfriends showed up did they remain in the house the entire time.
A: Until they left they went to the garage for awhile
Q: Did you go out there initially with them?
A: For a minute I went out there with them
Q: What happened out in the garage
FELDMAN: I couldn't hear the answer
JUDGE: I couldn't either. Did you go out to the garage with them initially.
A: I don't think it was initially because I think Brenda came down and they went out to the garage. And I think then I went out ,because I was playing games still with the boys, and then I went out and talked to them for a minute and came back in.
Q: What was going on out in the garage
A: They were smoking
A: Cigarettes and marijuana
Q: Did you have any of that marijuana
Q: How much
A: I had maybe two. I think only one though
Q: Two cigarettes?
A: No just a puff. It was cold in the garage so I went back in
Q: How many marijuana cigarettes were out there being passed around
A: I believe it was just one but I'm not sure. I was only out there for a minute.
Q: Anything at all about whether the side garage door was open or closed at that time?
Q: No you don't know
A: I don't know
Q: After you spent your time in the garage where did you go Mr. Van Dam
A: Back to the living room to play video games with the boys
Q: What was the next thing that happened?
A: they came back in. I said goodbye to them and they left.
Q: Went off to where they were going
Q: Who was driving do you remember?
A: I think it was Brenda but I'm not really sure
Q: Did you go outside and see who was driving?
A: No. I definitely couldn't see who was driving
Q: What did you do after they left?
A: Back to video games
Q: Can you estimate for us about what time your wife and her friends left your house?
A: About... around 8
Q: Were you keeping track of time
A: No not at all that's why I don't know. I didn't realize I'd played the video games that long either. It seems like a long time now
Q: Do you remember which video games you were playing?
A: It was Project Gotham on X-Box. We'd just won an X-Box
A: Project Gotham Racing Game on .... We'd just won an X-Box. So we were playing with our X Box
FELDMAN: Your Honor I'm sorry...
JUDGE: you're having difficulty I know.
Damon: I'll turn this way
Judge: I have a feeling that some of us aren't too familiar with video games. Me included.
Damon: OK it's an X Box Video Game system.
Judge: One at a time remember. It was me I'm sorry. Tell us the names of the video games slowly.
A: One video game. Project Gotham Racing
PROSECUTOR: Project Gotham Racing.
JUDGE: I got it. What was the other video game?
A: No other video game. It's an X Box system that you play on.
Judge: Next question. Let's get off the video games.
Q: Were you drinking anything at that time Mr. Van Dam
A: I believe after they left I had 1 more beer and two more slices of pizza with Dylan. Dylan was...I got a slice for me and he ended up eating it. Then I got another slice and he ate that one too.
Q: How about Danielle. What was she doing?
A: Danielle read at the table for awhile. Asked me the spellings of a few words because she was reading her book and then writing it in her journal. And she asked us to turn the tv down. and after awhile she moved into the family room which was just behind where we were sitting.
Q: Where were you with the boys? Which room?
A: Living room. Room with the tv which I believe is the living room is that right
Q: Do you remember what was on tv?
A: Project Gotham Racing
Q: Ok what's next.
JUDGE: That makes 3 of us. Go ahead.
Q: What happened after you guys were done watching the computer stuff on tv?
A: At about a little before 10 I asked the kids to all go up and brush their teeth and get in bed. And I turned off that and I watched tv downstairs for a little while while they went up and got ready for bed.
Q: They get ready by themselves
A: Yeah they get ready by themselves
Q: And as they were upstairs getting ready you were doing what?
A: Watched some tv, cleaned up the kitchen a little
Q: Then what
A: At about 10 went up and put them to bed. And went in Dylan's room first and Danielle was reading to Dylan. And I asked her to go to bed...well I checked that they'd brushed their teeth and all. Asked her to go to bed...I tucked Dylan under the sheets and gave him a kiss goodnight and said goodnight to him. And then I went to her room and she had already gotten in her bed and I gave her a kiss goodnight. And went to Derricks' room and he was still reading and I asked him just to turn the light off when he was done reading because he usually puts himself to bed a few minutes later and cracked all their doors a crack. They wanted them open but I was going to watch tv so I just left them a crack open.
Q: When you say a crack can you estimate for us about how big an opening
A: 6 inches, 8 inches
Q: Did you leave any lights on upstairs
A: When I left Derrick's room his light was left on. All the upstairs lights were off. There may have been a bathroom light on in our room but I'm not sure.
Q: Did they have any night lights either in their rooms or in their bathroom?
A: There's a night light in their bathroom. There's a night light in Dylan's room. Danielle's room did not have a night light. The blinds were open. And I'm not sure if Derrick's room had one at the time or not.
Q: After you tucked them in where'd you go
A: Went back downstairs and watched tv a little longer.
Q: Do you remember what you were watching?
A: I was channel surfing
Q: Did you stay awake?
A: Stayed awake for a little while downstairs and then went upstairs again
Q: Where'd you go when you went upstairs
A: Got in bed and watched tv in bed for a little while
Q: Do you have a dog
A: I have a dog yes. I left that out. Actually. Do you want the whole from after putting Derrick to bed too?
Q: Did you do something with the dog after you put Derrick to bed?
A: Put Derrick to bed and went in our room and the dog had chewed up her dog bed. And I took the dog bed downstairs to the laundry room and put it into the laundry room. And let the dog out back to go to the bathroom.
Q: How did you do that?
A: Through the rear sliding glass door, opened the sliding glass door, let her out to go to the bathroom, closed the door while she was going, and stood there and watched her, then let her back in through the door.
Q: and after you did that is that when you went to watch tv?
A: Downstairs yeah. I kept the dog down there with me for a little while. I didn't watch tv too long.
Q: When you finished watching TV you went where?
A: Went back to my bedroom.
Q: And how bout the pooch, where'd the dog go?
A: The pooch came up to the bedroom with me and I closed her in with me.
A: Because she had no...... Well we close her in all the time basically because she'll pee in the house.
Q: What'd you do in your room?
A: Got ready, got in bed, and watched tv for a little while, and then turned the tv off and went to sleep.
Q: Are you able to estimate for us the time period we're talking about. When you got upstairs, or when you turned the tv off?
A: Around 10:45. 11:00. I don't know.
Q: What event
A: Well going to bed I'd say probably another 15 min downstairs watching TV....about quarter after 10 downstairs watching tv and then went upstairs and maybe 10:30, 10:45 turned off the tv for the last time. I didn't look at the clock at any of those times.
Q: When you came upstairs to watch tv and go to your bedroom did you check on the kids?
Q: You eventually fell asleep in your bedroom?
Q: What was the next thing you were aware of?
A: The dog was whining to go out. She usually sleeps on Brenda's side of the bed and she was up and whining on my side of the bed. So I assumed she had to go to the bathroom so I went down and let her out.
Q: that was the assumption you made?
Q: Is she able to bark or make any sort of noise?
A; She's able to but she doesn't usually.
Q: Why not?
A: She was born and raised on a farm where the dogs had all been de-voiced.
Q: What did you do once the dog was making some motions
A: Got up and went down and let her out
Q: Do you know what time that was?
A: Around 1:45 I think
Q: Did you check the clock at that time?
Q: So this again is an estimate?
A: This is an estimate.
Q: was Brenda home by then?
Q: where did you take the dog
A: I let her out back. And then let her back in. Again watched her while she went out.
Q: what door
A: Through the back sliding glass door. Let her back in. Went back upstairs to the bedroom. Left the bedroom door open.
A: Because I knew Brenda would be home soon because I knew Dads closed at 2AM. So with the bedroom door open the dog was wherever the dog was I don't know. I jumped in bed and I watched TV for a little while
Q: did you have any lights on in your room besides the tv
A: No. The only light on in the house was the dining room light on dim. and yeah the front porch light
Q: what was the next thing that you recall happening
A: I heard the truck pull up and people come in the house. And that time was 1:54 5 6. I distinctly remember because that's the time I looked at the clock. So I would believe probably 1:54 they came in and I laid in bed awhile while I heard them downstairs.
Q: this clock that you have is it a digital clock that prints out the numbers?
A: VCR. On the VCR.
Q: What was the next thing that happened
A: Brenda and Barbara came upstairs, when they came in I heard 2 male voices I didn't know, then Brenda and Barbara came upstairs, Barbara jumped in bed next to me. I think Brenda went to the bathroom but I'm not sure. It was dark in the room.
JUDGE: I couldn't hear you. Keep your voice up
A: I'm not sure where Brenda went. But she came in the room and said something to me and then left the room
Q: When Barbara when you say went and jumped in bed with you what does that mean?
A: She jumped on top of the blankets next to me
Q: Where were you
A: I was under the blankets
Q: How were you dressed
A: I had underwear on
Q: What happened
A: Barbara laid next to me. I rolled over put my arm around her kissed, rubbed her back some
Q: How long were you there with her
A: 5 minutes, around 5 minutes
Q: What happened after that
A: Brenda came back upstairs and asked that we come downstairs with the other people in the house
Q: Did you
Q: what were you wearing when you came downstairs
A: You know I'm not positive
Q: more than underwear
A: More than wearing underwear...I either I put on my housecoat or put on a T-shirt and shorts but I don't remember which
Q: When you got downstairs who was there
A: Rich, Keith, Denise, Barbara and Brenda
Q: Did you know those people
A: Knew them all yes
Q: What was going on downstairs
A: They were eating pizza and cookies
JUDGE: They were eating pizza and what?
JUDGE: That's what I thought you said.
Q: How long did they hang around
A: I would guess 15 minutes to a half hour
Q: Who left first. If you can remember
A: Barbara and Denise left together first
Q: And then what
A: Then Rich and Keith left a few minutes later
Q: How was it that they came to leave? Did you say anything, or did anyone say anything to anybody?
A: Oh yeah we said it was time to go
Q: After they left was anybody left in the house
A: Just Brenda and myself and the kids
Q: When Brenda came home from Dads were you aware of any lights being activated on the warning system?
Q: Do you have a warning system or security system in your house
Q: Explain it to us
A: There's different red lights. There's green lights that go on when all doors are closed. And if certain zone doors are open, which is groups of doors or windows are open, a red light will go on, it'll beep and a red light will go on and stay on as long as the door is open. And I didn't notice any of those lights on.
Q: While you were up in the bedroom, after you took the dog outside and came back the last few minutes before Brenda came home, did you see any lights on in the monitor in your bedroom?
Q: Where's the monitor in your room?
A: It's next to the door to the room
Q: Can you explain to us why you didn't see any lights on, assuming there was a light on
Q: Were you paying attention to the alarm system
A: I was not paying attention to the alarm system but when I lay in bed there's one of the posts of the bed if I lay in a certain area of the bed I can't see the lights at all. So sometimes I can't see them and sometimes I can depending.
Q: is there any audible sound when the light goes off
A: When the door is first opened it beeps cause it'll beep
Q: How long?
A: Just a chirp (Damon makes a sound with his voice to describe this chirping sound). Short chirp.
Q: you heard that?
Q: After your friends leave you and your wife do what?
A: Went upstairs and went to bed
Q: what was the next thing that you remember happened?
A: After we went to bed?
A: Woke up the next morning
Q: did you get up in the middle of the night after you and your wife went to sleep?
A: Oh oh, yes, yes, I'm sorry. Yeah I noticed the light on. I think I woke up because I had to pee and I noticed the light on, on the alarm system
Q: Had you been asleep?
Q: Do you think you heard the chirp that caused you to wake up?
OBJECTION/SUSTAINED The answer is stricken
Q: Had you heard the chirp before you woke up?
Q: When you woke up to use the restroom, when did you notice the light on?
A: As soon as I got up
Q: What'd you do?
A: It was dark in the room so it was kind of obvious when it's so dark in the room
FELDMAN: (garbled) Can the mike be moved or something?
JUDGE: I don't think we can move the mike anymore. Sir, you have sort of a soft voice, so if you could speak up and enunciate a little bit it'd really help. So let's go back and ask him the question again or if you want it read back that'll be fine, about what happened when it woke up in the middle of the night to use the bathroom and all that
PROSECUTOR: Yeah that question.
A: I woke up and noticed that one of the red lights was on. I'm not sure which one but I saw it on in the room
Q: so what'd you do?
A: Went downstairs to check if the door was open
Q: What'd you find?
A: The rear sliding glass door was open a crack
Q: Is this the door that you'd taken the dog in and out of to use the backyard?
Q: When you say it was open a crack describe for us how wide a crack is
A: Around 8 inches. Not quite wide enough for the dog to get through. Maybe 10inches
Q: What'd you do?
A: Closed the door. Locked it.
Q: the last time you'd been to that door, do you know if you closed it?
A: The last time I'd been to the door yes I'm sure I closed it
Q: Did you lock it?
A: I think I locked it but I'm not positive
Q: Since that day, have you tried to get in through that door from the outside.
A: Yes I have
Q: Were you able to
Q: What'd you have to do
A: Actually I can add to that that I was able to.. we first started discussing the alarm system and how well it works
OBJECTION. no question pending
JUDGE: Counsel you're absolutely right but he's doing his best to answer the question. So I'm going to have the question read back and he'll answer the question. OK? Wanna read back the question please?
A: That's all right I know the question. And I to get in the door
Q: Hold on. I have a feeling once I ask the gentleman to read the question that his hands are off the machine ok so he's in trouble. Now I want the question read back.
QUESTION IS READ BACK TO WITNESS
A: I got a screwdriver from the garage, walked out the door, had my wife lock it and in 10 - 20 seconds by prying the door up and down I unlocked the door and opened it from the outside
Q: Did you make any other inquiry as to the efficiency of the alarm system
A: Yes I did
Q: What'd you do
A: I got a child's plain magnet, a real small magnet, and opened the door and put the magnet over the sensor on the door. And the alarm never beeped and the red light never went on. And the magnet hung there by itself with the door remaining open. I did this for all doors in the house with the same result.
Q: After you closed that rear sliding door what did you do?
A: We're back to that night?
A: I closed that door, I went out in the garage, and I visually looked at the side door to the garage and saw that it was in lock position. Went back in the house and went up to bed
Q: check on your kids?
A: I didn't check on the kids
Q: Why Mr. Van Dam?
A: I didn't believe I had any reason to. I assumed in that state, my state of drowsiness, that one of the other people in the house had left that door open because it's right next to the table we were all sitting at
Q: Even though you'd already been to that door a couple times?
A: But they were sitting there after I'd let the dog out the last time
Q: Did you then go back to bed?
Q: When did you get up?
A: About 8 in the morning.
Q: were you the first one up between you and your wife?
A: Between me and my wife yes
Q: where'd you go
A: I went downstairs. My son was already up
Q: Which son
Q: what'd you do?
A: I talked to him for a minute and asked him what he needed for, what he wanted for breakfast and started making him breakfast. Pop tarts
Q: Then what happened
A: My other son. Actually I'm not positive if Dylan was down there too I think Dylan got up a little, a few minutes later and joined us downstairs and I made him pop tarts also and myself a waffle.
Q: and your wife was where?
Q: After you had a little breakfast with the boys what happened?
A: Brenda came downstairs and I think she did the dishes. She started doing some dishes while I took some garbage out.
Q: Where's the garbage?
A: The garbage cans are on the side of the house outside the garage side door
Q: then what
A: We went back upstairs for a little while
Q: after that what happened
A: came back downstairs and she started to make breakfast for the other kids. The neighbor's kids came over.
Q: Was something supposed to happen with the neighbor's kids?
A: Yeah that we were watching the neighbor's children
Q: About what time was it that the neighbor kids come over? If you can estimate
A: 9. Around 9
Q: When they got there what happened
A: They played some with the boys. Danielle's friend asked about Danielle so Brenda told her she could go wake Danielle up
Q: that where you thought she was? Where'd you think Danielle was?
A: In Bed
Q: is that unusual for her to sleep that late?
A: No not all
Q: why not
A: She was always the last one up
Q: then what happened
A: Brenda went up to wake Danielle up and found she wasn't there. Called down to me. Asked me where Danielle was. And I said in the bed. And we started to search for her.
Q: where'd you go Mr. Van Dam?
A: Searching for her in all the bedrooms, under the beds, bathrooms, under the stairs, in the office, the garage, went out to the side of the house, and I noticed that the side gate was also open
Q: What do you mean side gate?
A: The gate that goes to the backyard on the side of the house
Q: Is that near another door or entry way into the house?
A: That's near the side garage door
Q: How far away?
A: About 5 feet, 4 feet
Q: Describe for us how easy or difficult that gate is to open
A: Too difficult for a child to open
Q: why do you say that
A: It's tight, the wood is tight on itself, and it swells, so you have to push the latch open, and pull the gate open from the top of the gate. A child is too small to reach up there and pull it open with the force needed.
Q: How high is this latch on the gate?
A: About 4 foot. Maybe a little higher. 4 foot maybe a little higher
Q: And that gate was open when you saw it?
A: It was slightly ajar. About a foot open
Q: Did you notice that when you took the trash out?
A: No but I wasn't paying attention then
Q: what was your emotional state at that point?
A: I was crazy. I don't know. I was not in good shape.
Q: had Danielle ever run away from home?
Q: had she ever left unexplainably before?
Q: Did you search anywhere else?
A: After that, we, I went to a couple neighbor's houses and knocked. Was that before or after I drove...I drove around the block. And then went to neighbor's houses. I don't remember the order. I was frantic. But I remember I got in the car and drove around the block to look for her. I ran up and down the street first. It was.....
Q: were the police notified?
Q: when and how?
A: When I, after I noticed the gate open, I went back in and Brenda was on the stairs and asked if she should call 911 and I said yes
Q: how quickly did the police get there
A: It seemed fast but I couldn't, I can't tell time with the state I was in
Q: what were you doing while you were waiting for the police to show up
A: I drove the van around the block and they were there by the time I got back I think
Q: then what happened
A: They asked us about the night.... Police came....it's all a haze I was....I was not in a good mental state
Q: did you spend that night at home
A: No we spent it across the street at the neighbor's house
A: The police were, ...the police wanted the house to search
Q: do you know what they were doing inside your house?
Q: from the time that you noticed Danielle missing, did you vacuum or clean the house?
Q: did you destroy, hide, conceal, any sort of evidence, or what you perceive to be evidence in this case?
Q: once the police criminal people showed up were you allowed into the house before they finished their work?
A: Before they finished?
Q: before they finished processing your house
A: Yes we were allowed back in
A: The whole time is so bad I couldn't even say if it was the 2d day or third day, I don't know. But I know when we were allowed back in people... by the time I got in the house there was at least a half a dozen people cleaning it from finger print dust
Q: Do you know where they were cleaning?
A: On the stairs is what I saw. I only went into the entry way
Q: What'd you do?
A: My main concern was that no one cleaned Danielle's room
A: Because I worried......Because (Damon breaks down at this point)
Q: Want to take a break?
A: I knew something bad had happened. And I wanted to make sure that if there was any evidence that it was still there
Q: What'd you do to protect that room
A: Closed the door and we put one of the dog gates up with a sign that said Do Not Enter
Q: Did you let any of your friends into that room?
A: No. We let a couple of people look into it but we wouldn't let anybody walk in
Q: Is that sign still up?
A: no but you guys have convinced me you got enough we haven't cleaned it yet though
Q: You haven't cleaned it yet?
Q: Thank you sir.
End questions by Prosecution
|Post Preliminary Hearing Arguments|
DUSEK: Ask that People 1 - 6 be admitted into evidence.
JUDGE: Any objections?
FELDMAN: We need to address that Your Honor, yes
JUDGE: OK. Address. Well one is the flier for the missing person.
FELDMAN: NO OBJECTION
JUDGE: Received. Two is a picture of the scene where the body was found
FELDMAN: NO OBJECTION
JUDGE: Received. Three, that's what I said the scratches, ....scratches. Received. Four are the....You have objections? Well let's take them one at a time. I don't mean one picture at a time. I meant one group at a time. Six is received. All right so we want to talk about 4 and we want to talk about 5 correct?
JUDGE: 4 are the photos and 5 ....
FELDMAN: Your Honor I'm sorry can we get the camera off us while we do this. Can we ask at least to ....
JUDGE: Are you talking about the pictures
FELDMAN: I'm talking about counsel's discussions at this moment concerning what objections need to be made with regard to People's Exhibits 4 and 5
JUDGE: Yes I think you're entitled to that privacy. So do you want to just go off the record for a few minutes without leaving
JUDGE: OK we're off the record.
JUDGE: You want to respond?
PROSECUTOR: I believe they do. Court can certainly make that determination when they look at them. They also are relevant to show motive on this case.
FELDMAN: Your Honor on the issue of motive I think counsel's suggestion is that if anybody has a picture of a naked woman they then have a motive to kill somebody? That really does push the logic a bit.
JUDGE: That's his argument. And I'm sure his argument isn't as simple as that. The objections are over ruled. 4 and 5 will be received however they will be sealed pursuant to 1417.8 pursuant to the stipulation of the parties but they're received
FELDMAN: Your Honor frankly we didn't know what time we were going to finish and we don't have any witnesses here
JUDGE: That's not my real question. My real question is are there going to be witnesses
FELDMAN: We intend to call witnesses your honor
JUDGE: I didn't hear you
FELDMAN: I'm sorry we intend to call witnesses
JUDGE: And how many witnesses do we intend to call
FELDMAN: At least several and we'll analyze tonight how many more based upon the testimony of the witnesses today
JUDGE: Do you understand that there are severe restrictions...
FELDMAN: I'd be happy to make an offer of proof Your Honor so perhaps you could tell us whether it's appropriate or not
JUDGE: I think it's a good idea
PROSECUTOR: Perhaps we could do that at sidebar
FELDMAN: Your Honor if we're being compelled to make an offer of proof on the prosecution's motion I think it should be made, I mean what are we hiding
JUDGE: We're not going to make it at sidebar. If we're going to do it we're going to do it. Now just briefly go ahead.
FELDMAN: My first question is before I do this Your Honor I want to be sure witnesses are excluded. I just don't know whether they are cause I haven't looked behind me.
JUDGE: I assume that all of the witnesses have been excluded and admonished pursuant to my previous orders am I correct Counsel?
JUDGE: All right
FELDMAN: Your Honor. It's the defense position as follows. And this is what we propose to demonstrate in our case in chief at prelim hearing only. The issue in the case in our view is alibi and 3d party access to the Van Dam residence. It's apparent in our view that anybody who entered that residence on the evening and removed Danielle had to have been familiar with the upstairs of the residence, with the family and with the dog.
PROSECUTOR: It's not an offer of proof. We need to know who's going to testify to what
JUDGE: That's what we want to know
FELDMAN: I'm getting there
JUDGE: Well let's get there directly. And then we'll... I want to know who's coming in, what's the offer of proof. and what does it relate to. This isn't an opening or closing argument.
FELDMAN: I understand. I also understand that given it's a prelim hearing there are substantial restrictions on our ability to present evidence.
FELDMAN: We intend to call Det parga (sp?) to the stand to testify to certain aspects of the search of Mr Westerfield's residence.
PROSECUTOR: She's not in the country
FELDMAN: She's under subpoena. I think. She is. She's under subpoena. We have her
JUDGE: Well she's not in the country so we're gonna have to figure out what to do about that. All right let's skip over Det Parga and try the next one.
FELDMAN: We intend to call Barbara Easton to impeach the testimony of Brenda Van Dam. Specifically with regard to the fact that there was dancing at the bar that Brenda Van Dam was dancing with David Westerfield and we intend to call 2 or 3 witnesses including the bartender at Dads restaurant or by way of 115 officer, I think his first name is Frank Gurback (spell?) he too I believe is under subpoena to the defense, yes he is, and we propose to 115 the testimony of Miss, I think it's Kamel. She will testify...
JUDGE: Let's just start first with Barbara Easton. one at a time. What is your representation as to what her testimony is going to be. Not what questions you're going to ask her. But what her testimony is going to be.
FELDMAN: Your Honor we have a transcript that was provided to us in discovery. It is pages 396-445. And I'd be happy to provide the transcript to the court. Counsel gave it to us.
JUDGE: Let me see it. And before we make a speech let me see it. and somehow direct me to the highlighted portion yes. All right let me take a look at it. Well counsel there are a lot of highlighted portions where is the specific reference to what you just told me about her dancing with Mr Westerfield. What page is that on
FELDMAN: I can't, you have my copy I'm sorry. But I can tell you that if you start at the top you see the word "toasted" that is a place we want to go because it's impeachment of what's previously been testified to by the witness.
JUDGE: Counsel the toasted that you want to talk about is on page 9 only
FELDMAN: I'm sorry my memory.. I thought it was on the first page.
JUDGE: I didn't say the word toasted wasn't on the first page. I said what you just talked about is on page 9. Hold on a second. All right I don't know how we're going to do this but let me tell you in the few minutes that I've had to review this I'm going to give this document back to you and ask you to take a few minutes and refer me specifically to the page where this woman says that there was dancing going on between your client and Mrs Van Dam.
FELDMAN: Your Honor I apologize I think I called the witness wrong we have two other witnesses
JUDGE: Counsel all I know is you gave me a document and said you'll find it in here. It isn't. At least I can't find it.
FELDMAN: Well I apologize to the court. I'm proposing that we have 2 other witnesses to the same fact
JUDGE: Hold on a second. Let me just stop. We were talking about why are you going to be calling Brenda Easton. You told me because she would impeach the previous testimony and she would testify a certain way about who was dancing with whom
FELDMAN: And we disagree with the manner in which Mrs Van Dam described the events that occurred as articulated by Mr Van Dam. And so we see her..... I'm specifically at page 9...
JUDGE: Counsel according to 866 of the penal code you have to either establish an affirmative defense, negate an element of the crime or impeach the testimony of a prosecution witness. I understand what you're telling me. you're telling me that she has a different view of how toasted they were. I understand. But I don't see anything in there...and it was quick reading I'll give you that...that for the purposes of the prelim hearing that I would allow you to go in to with respect to impeachment. I just don't see it. Now let's talk about a witness if you have one who is about to testify to what you represented miss Easton was going to testify to and I understand you made a mistake we all make mistakes.
FELDMAN: Your Honor specifically Discovery page 732 and Discovery 468 reflects the testimony of Cherokee Young's
JUDGE: Let me see it please
FELDMAN: and another woman ...
JUDGE: Cherokee Young is the first one and the second one?
FELDMAN: Patricia LaPage.
JUDGE: Thank you.
FELDMAN: And you'll see a reference to Barbara Easton. Those are short reports Your Honor
JUDGE: Hold On. All right. Counsel I see Cherokee Young's. I see Patricia Lapage. That's not what she said. So I don't see that Patricia Lapage or Brenda Easton are particularly relevant to this hearing. I understand why you want Cherokee Young's and I would ask the DA why I shouldn't allow Cherokee Youngs to testify for impeachment purposes only
PROSECUTOR: I believe she's not under subpoena. I don't know if she is or not.
FELDMAN: She's under subpoena for us
PROSECUTOR: And I do not see that the impeachment area is relevant to the hearing here today
JUDGE: I do
PROSECUTOR: all right
JUDGE: You may call Cherokee Youngs for the limited purpose of impeachment testimony with respect to what is stated within the .........within the paragraph. The indented paragraph.
FELDMAN: Your Honor we have the page that indicates that Barbara Easton..
JUDGE: I have page 732, is what I have
FELDMAN: And in that page it should state that Barbara Easton at Dads bar invited other people back to the house..
JUDGE: Counsel hold on a second. I said....OK?.... that with respect to Cherokee Youngs you can call her to testify for impeachment purposes only with regard to what is stated within the indented paragraph. That covers what you want. All right so right now Cherokee Youngs I'm going to allow you to call for impeachment purposes. All right? If we're doing it let's do it now.
FELDMAN: We don't have her now
JUDGE: No no...I apologize. Let's proceed with this process.
FELDMAN: Your honor we would next propose by way of 115 to call an officer named Frank Gurback (sp?) this is discovery now 458 at sec (?) which reflects an interview with Denise Kamel.
JUDGE: Let me see it please
FELDMAN: Coming right up. 458-461. Your Honor there's an additional page I wish to provide to the court. Actually 2 additional, 463 and 464. It's the same witness just additional discovery that I didn't give you
JUDGE: All right. Where specifically. Oh I have it and you don't. I'm gonna give it back to you and I want you to in some manner indicate what specifically you believe is impeachment. not cumulative because some of the witnesses have not testified exactly the same.
FELDMAN: Your Honor.
FELDMAN: I'm going to try to put ink circles around the specific areas. Just so counsel is aware it's discovery 459 about two quarters of the way down the page. 461 first several lines.
JUDGE: not at the prelim hearing counsel. #1 I don't think it is anything new. I think it's cumulative and I'm gonna exercise my discretion under 352.
FELDMAN: Very well. Next. Glennie Nasland.
JUDGE: I apologize. How do you spell that?
FELDMAN: I said it wrong. N-a-s-l-a-n-d. Counsel it's 525 and 526.
JUDGE: OK let me take a look. You've circled or highlighted it or something?
FELDMAN: Yes I put a circle around it.
JUDGE: Thank you
FELDMAN: May I please provide you 527 as well
JUDGE: Yes you may. This is the testimony of a police officer who's going to come in and testify. You have the actual person?
FELDMAN: we have the witness. I think I circled the wrong spot I'm sorry I didn't realize you were going to ask me to do it this specifically with regard to the paper. So I...
JUDGE: I did that as an accommodation counsel
FELDMAN: If you have 526 up there Your Honor?
JUDGE: I see what you want. You want this person to come in specifically to testify about who was dancing with whom, correct?
FELDMAN: Correct. And intoxication as an affirmative defense --our client's intoxication and potentially as an alibi.
JUDGE: No. She can come in she can testify with respect to who was dancing with whom and that's all. I'm using my discretion under 352. We're not going to turn this into a mini trial. I apologize. How do you spell that last name.
JUDGE: Thank you.
FELDMAN: Your Honor
JUDGE: I'm listening
FELDMAN: We propose to call Sandra Engotti (sp) to testify that there were between 34 and 76 sex registrants within a very short area around the residence of the van dams to show access and 3d party culpability.
JUDGE: Counsel ?
PROSECUTOR: 3d party culpability is not an affirmative defense. An affirmative defense is "I did it". But this is the reason for -the fact there are 290 registrants anywhere is of no relevance and it certainly does not lead to a 3d party culpability
FELDMAN: Your Honor.
JUDGE: Sustained I don't want to hear it
FELDMAN: People vs Hall
JUDGE: You're telling me there is a case that specifically says that in this type of a case that the issue of how many sex registrants, 290 registrants, in the area is relevant?
FELDMAN: No I'm saying that counsel misspoke when he claimed that an affirmative defense was limited to that which he articulated and I was citing People vs Hall for the proposition that 3d party culpability is an affirmative defense.
JUDGE: I'm going to allow you a 3d party culpability. That's not the reason I sustained the objection. I sustained the objection because I think the Number of registrants, 290 Registrants, in the area is irrelevant.
FELDMAN: There's two witnesses that we talked to Counsel about and Sgt Holmes is being very gracious indicating he will accommodate us because we don't have two of the officers under subpoena. I will provide you with the discovery this relates to. And Dylan and Derrick Van Dam I don't want to call them Your honor they are children. If you decide it's relevant I want to do a 115
JUDGE: I'm sure that if I decide it's relevant that we can do it a way in a fashion so we don't have to call the children. I didn't say it was relevant I said "If".
FELDMAN: Your Honor
JUDGE: Let me see what you have please
FELDMAN: I was just going to for the record... 605 discovery 606. I've got it highlighted. And also 60.....I guess 602 and 604 on top of that
JUDGE: All right let me see it
Counsel with respect to the interview with Derrick I see one sentence.
JUDGE: That sentence counsel is on page 603. I don't know what Mr Dusek is looking at but it starts "when asked if his sister." You see that? Bout middle of the page. In fact it's right next to the middle hole. You see that?
JUDGE: that's the only sentence in this 3 page document counsel
PROSECUTOR: then submit it right now. Stipulate that that's what he would say
FELDMAN: Well then I propose to accept the stipulation but I'd like be able to state it. If you'll agree
JUDGE: Hold on. You're reading my mind as I've tried to read your mind throughout this. we may be able to work out these stipulations with these other people. I don't know. Let me take a look at the other child. This is Dylan?
FELDMAN: He says the same thing Your honor
JUDGE: Ok. This is the 5yo? yes. All Right. He says the same thing. You're correct. So do you want to come to sidebar to see if we can propose a stipulation and come back out and try to do it?
FELDMAN: yes Your Honor
JUDGE: And take care of this is that all right with you counsel?
JUDGE: All right let's do this quickly..................
All right we're back on record. I'm advised that there will be a stipulation with respect to the two children. We're gonna have that posed in a minute on that limited area about the gate. I understand there cannot or there will not be a stipulation with respect to Miss Young's and Miss Nasland's testimony although once again to caution it's going to be extremely limited. you know what my goal was today. All right. What else do we have. And I don't even know....I'm not casting any aspersions. What else do we have?
FELDMAN: Your Honor with regard to Det Parga.
JUDGE: Hold on I know about Det parga. You know how I operate. I try to get as much as I can get and I want to know whether or not there's anybody other than Det Parga
FELDMAN: The court will recall that an objection on scope was sustained when I was trying to ask Miss Savage(sp?) certain questions concerning her behaviors at Mr Westerfield's residence so miss Savage would be another one of the witnesses we would ask to be recalled because an argument was made that my cross examination exceeded the scope of the direct. This would be an affirmative defense relating to transference of evidence.
PROSECUTOR: It is the discovery question. He simply wants to discover the case. He has the reports that indicate what was found where and when it was found.
JUDGE: What specifically she's going to testify to that's what you need to do under 866.
FELDMAN: she's going to testify she went from the crime scene at Mountain View and walked to Mr Westerfield's house and walked through Mr Westerfield's house without having changed her shoes, tracking in or contaminating evidence. That does relate to what weight the court gives to the prosecution's physical evidence that's been produced at this hearing.
PROSECUTOR: What evidence has been produced at this hearing as to any hair, fiber, blood, fingerprint evidence coming from Mr Westerfield's house?
JUDGE: I didn't remember any..
FELDMAN: The inference on the jacket is that it came from, and that's how I understood the testimony and those are inferences that I was drawing on their direct testimony concerning Mr Westerfield's jacket which they've alleged had blood on it.
JUDGE: I think Mr Dusek's recollection of the testimony is correct. I don't find that such testimony falls within 866 of the penal code so that's denied.
FELDMAN: there's one other issue Your Honor and that is this. The court is aware that the lawyers have been moving as quickly as possible. At least the defense team has. Late yesterday I received a call after court...no we didn't have court yesterday...at some point yesterday I received a phone call I can't recall whether it was from the DA' office or from a photo company but I'm told that there is I don't know how many 100s of photographs that we have yet to see of the crime scene that will be available to the defense at some point tomorrow morning. Yesterday we called we have a runner whose move position is to pick them up as soon as they're ready. But I think my request would be it's not unreasonable to say we want 6 or 8hrs tomorrow morning to pick up evidence that in our view could have been produced earlier and has not.
JUDGE: What about Det parga. And I have not responded to your last statement nor have I asked the DA for his position. I just want to do things my way and I don't mean that in a dictatorial manner.
FELDMAN: Whatever the court wants
JUDGE: That's what I want. I want to talk about Det Parga
FELDMAN: We can if you'll give us a second with Mr Dusek may be stipulate a way Det Parga...
JUDGE: That'll be good...... go talk.
FELDMAN: We might want a ruling....if it's not unreasonable to request an indicating on relevance to see whether we need to stipulate to anything.
JUDGE: Well that's fair. It wouldn't be an indicating it would be a ruling.
FELDMAN: OK Counsel has given me his 919 and I'm asking to please give it to you.
JUDGE: All right. you have something circled?
FELDMAN: Yes. It's the paragraph that's in yellow.
JUDGE: This is all you want? Or you want the whole paragraph?
FELDMAN: No we want...no we don't want the whole paragraph.
JUDGE: Just the one sentence?
FELDMAN: Yes because our view is that...
JUDGE: I understand
FELDMAN: But they want the whole paragraph
JUDGE: Now I understand what the dispute is. Counsel this is offered for what purpose? Which one of the 3 purposes? Which one...
FELDMAN: The first sentence is relevant to impeach the witness.
JUDGE: I understand.
FELDMAN: That's all we want.
JUDGE: And the 2d few sentences is consistent with what the witness had testified to before am I correct?
PROSECUTOR: I believe all of them are consistent.
FELDMAN: But our position is that it's cumulative after the 1st sentence and we're not offering any
JUDGE: I appreciate that but I've been fairly liberal with my cumulative rulings. If it comes in I'll find it as relevant. if it comes in the whole paragraph comes in. Do you want it in or not?
JUDGE: now let me see if I understand what issues I have left. I have your request with respect to the giving you the opportunity to review the crime scene evidence that's coming in some time tomorrow am I correct?
FELDMAN: That's correct your Honor.
JUDGE: Do I have anything else. Knowing that I still have two witnesses who I have ruled irrelevant.
FELDMAN: At this point again it's been... I can only tell you our habit and custom is to go back and analyze the evidence and make tactical decisions every night constantly
JUDGE: I understand. You know what I don't want to see. I don't want 15 more witnesses or 3 more witnesses tomorrow morning.
FELDMAN: I'm getting that from counsel too.
JUDGE: I'm sorry?
FELDMAN: I was getting that from counsel to my left as well Your Honor
JUDGE: Well I would do the same thing with him. Now.
FELDMAN: But I'm really not sure what Your Honor...you're indicating you don't want surprise witnesses of course I understand that.
JUDGE: Right. I'm asking you now to tell me whether there're any other witnesses based upon what you have now not based upon some more crime scene evidence that you're going to receive that you wish to put on for any purpose under 866. And my understanding is the answer is no.
FELDMAN: Correct. Except that which we've told you about.
JUDGE: the two witnesses
FELDMAN: Well all of our offers. Yes.
JUDGE: But the two witnesses that I've ruled are relevant and they can come in and they're going to testify about who was dancing with whom.
FELDMAN: Yes Your Honor
JUDGE: I want to see counsel at side bar and I want the court reporter
JUDGE: Ok it's not only attorneys who can be persuasive. I'm pleased to announce that we're going to have some stipulations. Go ahead.
(male voice): Your Honor we have reached a stipulation as to the testimony of Officer Bojorquez. That's spelled B-o-j-o-r-q-u-e-z. If he was called to testify he would testify that on Feb 2 2002 he interviewed Dylan Van Dam and the officer asked him if his sister has ever walked away from the house and opened the gate in the backyard. He said yes his sister can climb up and open the gate. She's gotten in trouble before. He said she and my brother got in trouble with my mom for opening the gate and going out front. The same officer will testify...
JUDGE: Hold on these are stipulations for the purpose of the prelim hearing only am I correct? Correct counsel?
JUDGE: So stipulated with respect to the first recitation. Next.
(male voice): the officer would also testify that on Feb 2 2002 he interviewed Derrick Van Dam . And that Derrick Van Dam when asked if his sister knows how to open the gate he said yes she does. He said One time she got in trouble for climbing on the gate and opening it and going out front.
JUDGE: So stipulated for the same purposes.
JUDGE: Thank you. we've got some more.
(male voice): We have a stipulation that Det Parga if called to testify would testify that on Feb 3 2002 he checked
(male voice): on Feb 3 2002 she checked 11995 Mountain pass road at 11:45 hrs. Dave Westerfield was not home. I looked into the window of Westerfield's house and noticed it was very clean and neat. I noticed the front yard hose was lying on the grass and it is a disarray. I assume she means in a disarray. This indicated to me he was in a hurry to leave after using the hose. it was completely unrolled in (garbled).. yard
JUDGE: So stipulated.
JUDGE: OK. There are two more. Have I missed something. Weren't there 2 more?
(male voice): Your Honor I don't believe that the DA will stipulate to the testimony....
JUDGE: Did I misunderstand what happened at sidebar?
PROSECUTOR: No you didn't.
JUDGE: You are willing to testify...uh to stipulate correct?
JUDGE: Thank you:
PROSECUTOR: For the purposes of the prelim hearing only?
JUDGE: Correct. It's a very limited area.
FELDMAN: Your Honor that would be
JUDGE: About dancing.
(male voice): We also have a stipulation that if Glennie Nasland that's N-a-s-l-a-n-d were called to testify.
JUDGE: You want to spell the first name too Please.
(male voice): Glennie that's G-l-e-n-n-i-e would testify that she was at Dads cafe on Feb, on the evening of Feb 1st and that Westerfield danced with, that Brenda danced alone with Westerfield.
JUDGE: So stipulated for the limited purposes of the prelim hearing
PROSECUTOR: May I see that for a moment Your Honor
PROSECUTOR: For the purposes of the prelim hearing only your honor
JUDGE: All of these stipulations have been received for that purpose. There's another one. Cherokee Youngs.
(male voice): We have a stipulation Your Honor, that Cherokee Youngs, that's Y-o-u-n-g-s, first name C-h-e-r-o-k-e-e, if called to testify would testify that on Feb 1st at Dads bar she saw Brenda dancing with Dave Westerfield.
JUDGE: So stipulated for the same purposes.
JUDGE: Stipulation is received. It's my understanding that with the exception of a discussion that we need to have about the anticipated receipt of crime scene evidence discovery tomorrow that we are finished and terminated with this prelim hearing but for argument. Am I correct?
FELDMAN: How about for the motion that i made Your Honor.
FELDMAN: if you're asking if we have any further witnesses that answer is no with the exception of what we don't know about yet.
JUDGE: I understand. I'm now listening to you about what you want me to do and why
FELDMAN: The purpose of the prelim hearing is to weed out groundless charges. And I recognize that the standard of proof is extraordinarily slight. However it does statutorily and as a matter of constitutional right provide and permit that a potentially capital accused defendant be at least given the opportunity to review the photographs that law enforcement has already taken and which are at least on order and should be available to us in certainly less than 24hrs. All I'm asking the court is to permit us the opportunity to review evidence which has been communicated to us and provided to us I believe in due course to review the evidence so that we can make an informed decisions to whether or not we believe it's relevant and appropriate for us under the 6th amendment to advance further affirmative defense testimony.
JUDGE: What is it that you expect to receive.
FELDMAN: I expect to receive 100s of photographs. All I've been told is the price judge. I don't even know how many 100s. But I think one of the gentleman at counsel table I thought told me, but I could be wrong I don't rely on my memory too greatly, that there might be several 100 photographs.
FELDMAN: Of every scene that has been testified to that would include but not be limited to, Your Honor, the scene at which the body was found, Mr Westerfield's residence, Mr Westerfield's motor home, Mr Westerfield's 4x4 motor home, and the Van Dam residence. And I may be forgetting if there's more but at least that.
JUDGE: Thank you. Counsel?
PROSECUTOR: Photographs have been available for pick up for 1 or 2 days. Defense counsel answered ready when the prelim hearing was scheduled. We certainly were not in a rush to judgment. He appears to be. Photographs already have been provided to him before this. This is not the first set of photographs . The current set of photographs that I believe have already been provided show the Van Dam home and the Westerfield home. Perhaps not the recovery site. Those were the latest ones that were done. These are probably duplications or additional photographs from the other sites that we have.
FELDMAN: If somebody had let my office know that in the past 48 hrs there were photographs available you can bet that I would have had them (snaps fingers) this instant and we would have been ready to proceed. There hasn't been a single communication to my office that I'm aware of that indicated to us that there was additional discovery made. Because every single time this whole week and for that matter ever since the case arose that I received any kind of phone call from Mr Clark or any rep of the DA's office I've immediately gone over. I know the names of the clerks by now I've been over so many items because any time discovery has been made available I've been there to get it right now. This is not an unreasonable request. I'm very surprised to hear that photographs existed since this is the first time I've known of it. It's true we've received perhaps a dozen or so of the digital crime, of the digital photos that were taken at the recovery scene. It's true that we received some Xerox copies and some photos that were taken from the autopsy but not scene photographs your honor
JUDGE: You are certainly entitled to all of those photographs and to examine those photographs. There's no question bout that. I think that's part of the discovery process. The purpose of the prelim hearing as you pointed out was to weed out groundless charges. And I can't imagine that the photographs could contain sufficient evidence for me to decide that these charges are totally groundless so I'm going to exercise my discretion not to grant the continuance and this is the end of the prelim hearing. All right do you wish to argue counsel or what?
PROSECUTOR: there are some defense exhibits too I believe
PROSECUTOR: yes the court may recall.
JUDGE: thank you for pointing that out.
PROSECUTOR: The court may recall the court released to our custody Def exhibits F through J yesterday that were I believe exclusively notes and reports of various San Diego police dept experts. I yesterday, actually I'm sorry night before last, had those copied, provided a copy of them to counsel, and also seek the court's permission to substitute one set of those copies for the original notes that the Police Dept needs because they are actively testing material in this case.
JUDGE: You don't have any objection to that do you ?
FELDMAN: No Your Honor
JUDGE: Is it necessary that I actually receive in evidence those notes? I thought we really marked them for housekeeping purposes.
FELDMAN: Essentially for housekeeping purposes but at least this way now the court has a complete set of the notes
JUDGE: But you're not offering them in evidence I should just keep them
FELDMAN: Not at this time
PROSECUTOR: And I've provide a full copy of those to the court your Honor
JUDGE: Well Mr Clark reminded me that there were other Def exhibits which Def didn't' mention so before I assume that you don't wish me to receive them i should ask you. If you have something else to say I'm certainly willing to listen.
PROSECUTOR: Just back to those notes. First of all...they are not a complete set of notes because they are actively being worked on back at the laboratory..... But did I in fact, I can't remember, get the court's permission that the original's can be released.
JUDGE: Yes counsel had no objection you have my permission.
PROSECUTOR: Thank you
FELDMAN: Your Honor.
JUDGE: Do you want to go off record while you discuss this with counsel?
(they go off record)
JUDGE: What do you want to say counsel
FELDMAN: Your honor With regard to Def exhibit A
JUDGE: I know what A is
FELDMAN: Ok we'll submit it but ask that they be sealed. I'm not, I don't want to offer them into evidence but I do want them to be sealed. And i don't think counsel has an objection to the sealing. I apologize counsel I didn't speak directly about...
PROSECUTOR: should be sealed
JUDGE: OK "A" is sealed not offered. And they're sealed once again pursuant to 1417.8 of the penal code
FELDMAN: Thank you your honor. As to "B", "C", "D", and "E" just ask that they be marked. We're not...
JUDGE: You're not offering them.
FELDMAN: Correct. With regard to all of the remaining exhibits Your Honor I just ask to have them marked. We're not moving them.
JUDGE: Any objections?
PROSECUTOR: No your honor.
JUDGE: OK. That's fine. They're all marked. We have them all. "A" will be sealed and the rest have not been offered and as I understand it with the exception of argument we have nothing else in this prelim hearing.
PROSECUTOR: ...reserve the right to respond
JUDGE: I think everyone knows what the burden of proof is in a prelim hearing and it appears to this court and to me that the crimes alleged in the complaint have been committed, there's no question about that. I have reasonable cause to believe that Mr Westerfield is guilty of them. He will be held to answer and the arraignment will be held on Mar 28 at 2PM in Dept 11.
Nothing further to do?
PROSECUTOR: The allegation also Your Honor?
JUDGE: All of the allegations yes
FELDMAN: Mar 28 at 2PM?
JUDGE: That's correct in Dept 11. That's within the statutory time.
FELDMAN: Thank you
JUDGE: Thank you for your professionalism. We are adjourned.
I still want to know WHY the van Dams set out to distance themselves from Westerfield from the get-go? WHY?
Oh, and we are supposed to take Damon's word he didn't vacuum AFTER he realized Danielle was missing? Why believe him? He has trouble keeping his stories straight, doesn't he? DVD had all night and morning to run that vacuum.
But hey, if it was David Westerfield that ran the vacuum cleaner, he'd have been hung out to dry by now. (Notice how this almost disappeared from the radar screen...like running the vacuum at a crime scene isn't a big deal?!)..
If the van Dams were NOT the parents, and a "friends child" had disappeared from their home, they would have considered prime suspects before DW.
Parents aren't "supposed" to harm their children...but it happens everyday.
Also, remember the rumors about the VD's computer being searched and SDPD finding some gay videos, well people have been attributing that little item to the wrong person. Ah, the pendulum, keeps slinging, er, swinging.
Hey fres, did you know that all the transcripts are here? (At least it looks like Jason's forum has allof them)
Actually, statistically, the parents are the most likely suspects. That they dimissed these two so quickly should raise eyebrows and ring alarms. I'll add one more "why" to your list and offer one possible suggestion (actually first mentioned by FresnoDA)--Why were the parents declared "completely cleared" in under 13 hours (according to some sources)? Did it have anything to do with the close friend who had recently retired from the SDPD?
I don't know about you folks, but I've just downloaded all the pages of these transcripts for safe-keeping. We all know (some of us more painfully than others) what can happen to valid information that some people don't like. This time, if it gets flamed off the board, it can be reposted.
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