Danielle's mother spends emotional day on stand
By Jeff Dillon
SIGNONSANDIEGO
June 6, 2002
SAN DIEGO – The lead defense attorney for David Westerfield grilled the mother of Danielle van Dam Thursday about her sexual behavior, marijuana use and parenting in advance of her daughter's kidnapping and murder.
Brenda van Dam testified that she had previously had sex with the two women she accompanied on "girls' nights out" to Dad's Cafe and Steak House on Jan. 25 and Feb. 1 – the same two women her husband had said he'd also had sex with on previous occasions.
Defense attorney Steven Feldman pressed van Dam on why she had earlier told prosecutor Jeff Dusek she and her husband had never hosted "sex parties" but admitted they had sex with Denise and Andy Kemal at the van Dam house during an Oct. 31, 2001 Halloween party.
While Brenda became tearful during testimony surrounding Danielle, she appeared irritated when Feldman's questions turned repeatedly toward her sex life, as evidenced by this testy exchange:
Feldman: "Isn't it true that on Halloween evening in the year 2000, you engaged in sex with Denise and Andy and ...Damon?"
Brenda: "Yes."
Feldman: "So when you told Mr. Dusek that you had never had a sex party at your house, had you forgotten that?"
Brenda: "I don't consider that to be a sex party. "
Feldman: "Was October 2001 the first time you had sex with Denise?"
Brenda: "You need to repeat that question, you have the dates wrong."
Feldman: "OK, I'm sorry. What date was it that was the first time you had sex with Denise?"
Brenda: "I have never."
Feldman: "Have you had sex with Barbara Easton before?"
Brenda: "No."
Feldman: "Isn't it true you told (a detective) that you had in fact engaged in consensual sexual behavior with Denise?"
Brenda: (Pause) "Yes."
Feldman: "And you weren't lying ... were you?"
Brenda: "No."
Feldman: "When was it that you had consensual sexual relations with Denise?"
Brenda: "It was October of 2000."
Feldman hopped back and forth among topics during three hours of cross-examining van Dam, gradually walking her through the events of Friday, Feb. 1, the day before Danielle was discovered missing.
"I'm sorry, I'm switching again," Feldman warned her at one point. "But you'll be happy to know I'm winding down."
Brenda van Dam testified:
- That afternoon, she had briefly left Danielle alone in a department store while she retrieved her two sons, Derrick, then 9, and Dylen, then 5, from an adjacent toy store and then left all three children alone at home while she picked up a pizza.
- She and her two friends – Barbara Easton and Denise Kemal – had locked themselves in the family's garage to smoke marijuana later that evening before heading to Dad's .
After the first of three cranberry and vodka drinks, van Dam went outside with the two women to smoke more of the joint they'd started earlier in the evening. They were accompanied by Rich Brady and Keith Stone, two male friends they had encountered at the bar.
"Had the marijuana you smoked earlier worn off or did you want to get higher?" Feldman asked.
"I guess it had worn off," van Dam said.
Van Dam, the trio's designated driver, also had a shot of tequila.
- That between the 911 call and the arrival of the first police officer 15 minutes later, she and Damon van Dam had not reached an agreement to lie to police about their relationship with Easton and Kemal and their marijuana use.
Lengthy testimony
Van Dam spent several hours on the witness stand Thursday, the third day of the Westerfield murder trial. Her husband, Damon van Dam, had testified Wednesday that he had initially lied to police about his sex partners and marijuana use.Brenda van Dam broke down in tears several times during questioning that covered topics such as the length of Danielle's hair, her handful of encounters with the suspect and her discovery of Danielle's disappearance from her bedroom on Feb. 1.
"I have an emergency. My daughter's not in her bed this morning. She's only 7," Brenda van Dam is heard telling the dispatcher in an audiotape of her 911 call to police.
The dispatcher asks for more details, then assures van Dam: "Think positive thoughts and everything will be OK."
Cross-examined by Feldman, van Dam acknowledged that Danielle occasionally walked to other locations in the neighborhood and that Westerfield had parked his motorhome on the street for such long periods of time that she and others considered it an eyesore.
Danielle's hair and fingerprints were found in the motorhome after her disappearance, Dusek said in his opening statement on Tuesday. Feldman has argued that Danielle could have gotten into the motorhome on other occasions.
Disruption
Jurors returning after lunch to the courtroom in the David Westerfield murder trial were startled by a heckler in the hallway outside the door. The jury was filing into the jury box when someone shouted an expletive at Westerfield loud enough to be heard inside the courtroom. Westerfield apparently heard it too. He was overheard asking a bailiff "did you hear that?"The outburst came before Feldman was scheduled to resume his cross-examination of Brenda van Dam, mother of murder victim Danielle van Dam.
One of the alternate jurors raised her hand and told the judge, "I'm kind of shaken up after what happened outside." Superior Court Judge William Mudd told the jury that it was done deliberately, but that it should have no reflection on the attorneys for either side or the trial.
"Take a deep breath, sit back and relax," Mudd said before allowing the trial to resume.
The heckler, an unidentified woman, was escorted from the building by authorities.
During the afternoon break a group of jurors was overheard in the hallway discussing the incident. One of them said "it scared me."
Disputed time of death
Brenda van Dam's testimony came after Feldman challenged the county medical examiner's estimate of when Danielle van Dam died.Dr. Brian Blackbourne testified that he estimated Danielle had been dead for at least 10 days – and potentially up to six weeks – before her body was found.
"Just looking at the body, it was clear to me that she had been there for a considerable period of time," Blackbourne said, based on the degree of mummification and putrefaction of the body found off Dehesa Road on Feb. 27. Danielle disappeared Feb. 1.
But Feldman questioned Blackbourne's minimum 10-day estimate because the medical examiner had not checked weather reports to find out whether warm weather could have accelerated the decomposition process.
"To say that she was dead on the 17th of February, you would have to speculate, wouldn't you?" Feldman asked.
"Well, I have evidence on the body, so that's not really speculation," Blackbourne replied.
Insect evidence?
Blackbourne also acknowledged that forensic entomologist David K. Faulkner from the San Diego Natural History Museum had collected insects found on Danielle's body to help estimate the time of her death.Feldman suggested more evidence would show Danielle hadn't been dead as long as Blackbourne had estimated, proving his client's innocence by showing that she had been killed and her body dumped in Dehesa while Westerfield was under surveillance by police.
Blackbourne was testifying on the third day of the murder trial of David Westerfield, the 50-year-old neighbor accused of kidnapping and killing Danielle.
Cause of death not established
Blackbourne testified Wednesday that no cause of death could be established because the body was so badly decomposed and ravaged by animals.He said he ruled that the manner of her death was a homicide – as opposed to a suicide or natural causes – based on the position of her body, how far it was away from her home and the fact that searchers had been looking for her for three weeks.
Under cross-examination by Feldman, Blackbourne said that he couldn't find any signs of traumatic injuries.
Blackbourne also testified Thursday that decomposition prevented him from determining whether or not Danielle had been sexually assaulted before her death.
Partying hard
The final witness of the day, Dad's bar manager Sean Brown, testified that he remembered seeing Westerfield and some of his friends and Brenda van Dam and her friends in the bar area on both Jan. 25 and Feb. 1.But he said both Friday nights were busy and he couldn't keep track of all the patrons, how sober they were or when they left.
Brown did refute a police report quoting him as saying he had seen van Dam and her female friends "partying hard" and flirting with men in the bar.
"That's not exactly what I said," Brown testified. "The way I saw it was Brenda and her girlfriends were out there having a good time as girlfriends do. I think of partying hard as having beer shot after beer shot after beer shot. They were there to have a good time."
Cross-examined by defense attorney Robert Boyce, Brown admitted he couldn't say whether the women had been "partying hard" after they moved from the bar area to the dance floor.
Brown testified that Westerfield was something of a regular visitor to the bar and sat in the same seat next to another regular customer named Gary Harvey. Brown said Westerfield always ordered a 16-ounce glass of Baccardi Rum and Coke, rarely mingled with the crowd and was a people watcher.
Following is the line of questioning by Dusek about Westerfield:
Dusek: "What's the basis for that opinion or that assessment?"
Brown: "Well, maybe if there's a conversation between Gary and him and they stopped or hesitated, they would turn around and watch the people in the bar and maybe not talk for a while and observe what's going on. That's what I would consider a people watcher, so I would say he's a people watcher."
Dusek: "Did you ever see him play pool?"
Brown: "No."
Dusek: "Did you ever see him dance?"
Brown: "No."
Dusek: "What would he do?"
Brown: "He would just hang out with Gary, that's all I can say."
