Westerfield attorney's begin defense: Dusek STUNNED by Defense calling for Keith Stone. Barb next?

Union Trib ^ | July 2, 2002 | Union Trib

[FresnoDA]

Westerfield attorney's begin defense

By Jeff Dillon and Steve Perez
SIGNONSANDIEGO

July 2, 2002

A recovery dog behaved normally during an inspection of the motor home of murder defendant David Westerfield, a police investigator testified at the outset of the defendant's case this afternoon.

Prosecutors rested their case Tuesday morning against the man accused of kidnapping and killing 7-year-old Danielle van Dam, but the judge said there is an unspecified witness the prosecution may call before the trial ends.

Attorneys for Westerfield began calling defense witnesses this afternoon.

Dog's behavior recounted
San Diego police homicide investigator James Tomsovic was the first witness called by the Westerfield's defense team. He was asked by defense attorney Robert Boyce to describe the behavior of Cielo, a search dog owned by Jim Frazee, during a search on Feb. 6.

"The dog went around the motor home with Mr. Frazee in close attendance," the officer said. "The dog examined each of the lower equipment bays on the motor home, again with Mr. Frazee in close attendance and that is all I can recall of my observing."

Frazee has previously testified that his dog "alerted" to the possible scent of a cadaver on the motor home.

Under cross examination by prosector Jeff Dusek, the investigator testified that he had no formal training in dog handling.

Neighbors testify
Two neighbors of Westerfield's followed Tomsovic on the witness stand. Though called by the defense to testify that the defendant left the motor home parked in the neighborhood often, Dusek elicted testimony from that that showed the defendant usually cleaned it before and after his travels.

No witnesses have recalled seeing the defendant do that on the weekend in Febuary that the victim, Danielle van Dam, disappeared. Westerfield parked his motor home around the corner from his home as television news crews invaded the neighborhood to report on the well-publized search for the child Feb. 2, and returned without it on Feb. 4, after embarking on a rambling journey around San Diego and Imperial counties.

Software enginer Mark Roehr, who lives across the street from Westerfield, testified that he and his wife Janet have socialized with Westerfield over the last four years. Roehr said the defendant would park his motor home in front of his home for a period of time ranging anywhere from a day to several days.

Roehr agreed under questioning from Boyce, that Sabre Springs was a family neighborhood where a range of school-age children could be seen walking its streets.

Roehr said he found Westerfield's motor home unlocked at one time.

Prosecutors have presented forensice evidence that blood and hair from the victim was found in the motor home.

The Roehrs returned to the Sabre Springs neighborhood around 3:30 p.m. on Feb. 2 after a day of house-hunting to learn of Danielle's disappearance, according to the testimony.

Westerfield appeared moments later in his motor home. Roehr said his neighbor was unable to get to his home because of the presence of the news media, and because authorities had taped off certain parts of the neighborhood.

"He pulled up on Briar Leafe toward Mountain Pass road then gave me a sign like 'what's going on?' " Roehr said. "Rather than try to explain through the window of the motor home, I just pointed him down the street toward Mountain Pass to find a place to park."

Under cross examination from Dusek, Roehr said that it had been several months since Westerfield had brought his motor home into the neighborhood. He also said that he had never seen school-age children in the motor home.

The couple had been in the neighborhood around 10:30 a.m. the morning of the girl's disappearance, but at the time had noticed nothing unusual, Roehr said, under the prosecutor's questioning. Westerfield was not seen in the neighborhood then, Roehr said.

Roehr also said he never checked the motor home's door daily to see if it was locked.

"Did it appear that when the motor home would be brought into the neighborhood it was in preparation for a trip?" asked Dusek.

"Typically, yes," Roehr said.

"Why do you say that?"

"Because I know that's what he does. He comes in, he cleans the windows, gets it ready -- because it's stored some place where it gets dirty. He gets it prepared."

The prosecutor noted that it appeared to be "a ritual" when Westerfield was planning for a trip."

On most occasions, Roehr said, Westerfield would be accompanied by his son, or a girlfriend.

'Helpful and friendly'
His wife, Janet Roehr, described her neighbor as "helpful and friendly" and his home as "neat and orderly."

Under questioning from Dusek, she testified that she had never been in the upstairs part of Westerfield's home, or his office.

She too recalled seeing Westerfield's motor home arrive on that Saturday afternoon, but admitted to Dusek that it wasn't typical to see him in the motor home alone. Typically, she said, someone drove with him in a car to assist in picking up and dropping off the motor home from storage.

"Did he have anyone with him this day," said Dusek.

"No," she replied.

Focus on hose:
Another neighbor, Paul Hung, said his relations with the defendant were cordial. Under questioning from Boyce, Hung said he had a "open invitition" to swim in Westerfield's pool. He also said it wasn't unusual for Westerfield to leave his garden hose out in the front yard.

Prosecutors have made much of a garden hose being left out in front of the defendant's home on the weekend the victim disappeared and he left on the trip in his motor home.

"Was it unsual for Mr. Westerfield to leave his hose unraveled on the front lawn?" asked Boyce.

"I don't think so," Hung said.

"You've seen it like that before."

"Yes I have."

Hung also verified that the motor home had been left in the neighborhood and that children were also seen in the vicinity.

Another defense witness shared little more with the jury than his name and title before being dismissed. Boyce asked Richard Maler, a San Diego police robbery detective, if he had interviewed Keith Stone on Feb 2. Stone, a construction project manager, was with Brenda van Dam and two of her friends the night before the victim vanished.

The interview took place at a police substation. But once Boyce asked Maler if Stone had told him where he had been that night, prosecutor Dusek raised an objection that led to a lengthy sidebar discussion between the judge and attorneys.

When it ended, the witness was excused without a public explanation.

The day's final witness was police detective Johnny Keene, who recounted the times he contacted Westerfield on Monday Feb. 4, upon his return to the neighborhood.

His first contact was around 9:30 that morning he said, under questioning from defense attorney Steven Feldman, and lasted until around noon.

There was a period of time when Westerfield accompanied them to an inspection of the motorhome on Skyridge Road.

The defense attorney appeared irritated when Dusek produced a photograph that showed Keene and other authorities looking through Westerfield's garage, with the defendant present.

The photograph, taken sometime between 10:30 a.m. and 11 a.m., was apparently introduced by Dusek to show the investigator was wearing gloves when he was going through the garage.

It appeared to be the first time Westerfield's defense attorney had seen the rather sizeable photograph.

"We see a man inside of his house," Feldman said, holding up the photograph for jurors to see. "Who's that?"

After Keene identified him as a police sergeant, Feldman noted the man was standing in the area of the washer-dryer.

"Do you see any sweat on Mr. Westerfield's armpits," the defense attorney said.

"Not in that photo."

Previously, authorities have testified Westerfield was sweating profusely when they contacted him, though the weather was relatively cool.

After the jury was excused for the day, Feldman complained that he had not been previously provided a copy of the photo.

Prosecutors rested their case
Prosecutors rested their case after calling an animal DNA expert who testified that hairs found on Westerfield's laundry and in his motorhome could have come from the van Dam family dog.

Westerfield is accused of sneaking into the van Dam's Sabre Springs house on Feb. 2 and abducting Danielle, then killing her and dumping her body off rural Dehesa Road near El Cajon.

Today was the 15th day of testimony in the case and the 17th overall day of court activity since the trial began on June 4.

Judge William Mudd told jurors before the start of a noon lunch break that an additional prosecution witness had not been able to develop his or her testimony due to the speed with which the trial began and that prosecutors might call that witness "if and when that witness becomes relevant."

Dog evidence

Lawyers spent much of Tuesday morning revisiting the testimony of a dog handler who said his dog "alerted" to the possible scent of a cadaver on Westerfield's motor home in a police impound yard on Feb. 6.

Canine handler Jim Frazee initially testified on Wednesday, June 26. Testimony didn't resume until today because jurors toured the motor home Wednesday afternoon and lawyers for both sides met with the judge to discuss witnesses and related legal issues on Thursday and Monday. There is usually no court activity on Fridays.

Though his dog, Cielo, sat down, looked at him and barked after sniffing a storage compartment, Frazee admitted he wasn't sure the dog had had a valid reaction until he learned on Feb. 22 that Westerfield had been arrested and a blood stain had been found in the vehicle.

The dog didn't give an "alert" after it was allowed to sniff a shovel and lawn chair stored in the compartment and failed to react after a second trip around the motor home, Frazee said.

"'I didn' t know what to make of what Cielo did and left the scene wondering,'" Frazee said, reading from a Feb. 22 e-mail he had sent to friends about the incident.

Both Cielo and Frazee's other search-and-rescue dog, Hopi, had failed to react during a previous inspection of the motor home at its storage area on Feb. 4.

A defense attorney for Westerfield asked Frazee if he knew he had the nickname "180-Frank."

"You have that because when you and your dog search in one direction, everyone goes in the other direction," Robert Boyce said.

"I've never heard that," Frazee replied.

Another dog handler, Rosemary Redditt, testified Tuesday morning that she saw Cielo's behavior at the motor home on Feb. 6 and had no question that the dog had actually given an alert.

Other developments

Animal DNA analyst Joy Halverson testified that dog hairs found on Westerfield's laundry and in his motor home could have come from the van Dam family dog, Layla.

Westerfield's lead defense attorney, Steven Feldman, questioned Halverson's credentials and methods, noting that her interpretation of the DNA evidence changed between her first report, a follow-up report and a presentation in the courtroom.

There won't be any court activity on Thursday, due to the Independence Day holiday, or on Friday.

Mudd told jurors he might have to change his rule against court activity on Fridays and hold a session on Friday, July 12.

Mudd has said he plans to take July 15-19 off for his wedding anniversary.

[BunnySlippers]

Too intellectual, you know. The proper term is "Fry him!!".

Better yet ... let a killer go!

[UCANSEE2]

I have to go soon, but I wanted to make sure and tell you this.

Thank you for being considerate and courteous in your discussion. Thank you for your willingness to listen to opposing views. I Hope I was open to yours. I hope I didn't get to sarcastic with you. If so, I apologize.

[luvbach1]

The following speculataion is based on what I've heard and read, except for what I made up!I do think she was murdered in the motor home. The blood evidence points to it.I think he was trying to find a remote spot when he got stuck in the sand. I think she was alive at that point. He wouldn't have killed her there not knowing how long he would be stranded. He then roamed around, by his own account, and circled back toward San Diego. The body was found off Hwy 79 near San Diego but I think the child was killed soon after W left the dunes in which he was stuck. The reason for this theory is that a cadaver dog gave a positive response to a outside storage bin.I reason that the body would have had to be in that container long enough to have left enough odor for the dog to detect.So-called cadaver dogs do detect the odor of decay decay but they will also respond to the odor of a live human. These are the same dogs that locate dead or injured in collapsed buildings, most notably at the WTC. I think the dog could have merely responded to the scent of a human being so the body may have been dumped as quickly as possible. No way to know unless evidence of decay can be detected in the storage compartment. I've heard no mention of that.

[RnMomof7]

No you have NOT said "I think"..or "in my opinion"..you have said that there is evidence..and there is NONE that this man is a molester, The porn on the computer does not make him a molester..that is not evidence that he molested anyone.

I am waiting to hear the defense explaination for the porn and the blood...till then IMHO he is innocent the State has not met it's burden of proof!

[UCANSEE2]

But they do have Danielle's prints and that's what matters.

THey do matter, but the question still is when did they get there. That would be the crux of the situation. If they got there after 1030pm Friday 02/01/02, DW looks GUILTY.

[nycgal]

Missed which one? Rats....tell me.

Go to the same site where you got the other photos and click on the "NECD ORIGINS" link.

Here's the url:
http://www.necd.net/naked.htm

[meadsjn]

If DEFENSE provides PROOF DW could not possibly have done this,...

I know you are just trying to make your point to someone who was pre-convinced against the defendant, but you've also inadvertently pointed out just how upside-down our system of justice has become.

Not only have we lost the presumption of innocence, we have even passed the point where the defendent must prove his innocence; he must also then beg for mercy from those who still demand (in spite of the proof of innocence) that he be hung.

I recently sat on a jury of which several women conceded there was a great deal of "reasonable doubt", yet they insisted that the benefit of that reasonable doubt should be in favor of the prosecution, contrary to the simply written jury instructions and definitions. Fortunately, they weren't willing to spend additional days in deliberation.

[Jaded]

LE did not show up until 10:00 AM or shortly before.

[UCANSEE2]

Well, Thank you. I will hold you to that.

Maybe we can have a decent debate after all. I take it you don't like Feldman? Any reason?

[luvbach1]

I can only explain the lack of evidence of his entry and removal of Danielle by the fact that he was careful and succeeding in not leaving evidence. Obviously someone removed her without leaving evidence, so why not him? We don't know how drunk he was,or whether he was drunk, do we? He left the bar/cafe earlier than the others so it's reasonable to assume he drank less. As for Danielle screaming, this would present same difficulty to any other abductor. Brutal as the perp must have been, he could have choked her into unconsciousness befor carrying her out.Again, the proof is that it did happen. You read my previous scenarios so you know the rest (lol).

[UCANSEE2]

It was post 108 I was referring to and after going back and reading it again, I don't believe you were implying what I first thought. About what the Judge tells the jury to ignore/not ignore.

Please accept my apology for that one.

[luvbach1]

You better believe he said we. I heard it clearly on a police recording played here in San Diego.It was not Freudian; he just forgot to say I.

[pyx]

Only by the jury ... The general public is not held to the same standard.

The jury is made up of people selected from the general public. Fortunately the selection process can often weed out potential jurors who are predisposed to gathering around bellfreys with mobs armed with torches and pitchforks screaming, "Kill him ! Kill him!". Sadly, the selection process on some of these threads has no such selection process.

[Politicalmom]

I would go for that over imprisoning and killing an innocent person.

[UCANSEE2]

Do you have proof that DVD was molested? Have you got proof that DW EVER molested a little girl?
My opinion based on the evidence ... and you?

I knew you would try this.

Your opinion is based on what evidence? There is no evidence whatsoever that Danielle was molested. The ME testified to this in COURT.

[Politicalmom]

So what. He said we. He usually goes out with his son. Big deal. I refuse to believe that someone with a captive or dead body includes them in a congenial "we". Nobody would have that mind set.

[Rheo]

The reason for this theory is that a cadaver dog gave a positive response to a outside storage bin

This didn't happen..Feldman discredited 180Frank today..he never alerted any LEO to any alert...his dogs went thru the MH on 2/4 and 2/6....he only told of a possible alert on 2/22..after DW was arrested and news of the blood evidence was found.

If she were killed in the MH, why no urine or fecal matter found or blood from the rape?

How did he keep her quiet?..bound, drugged?

[UCANSEE2]

You are about 75 messages behind. I work in the stockmarket and get up at 4am and am almost ready for bed. I'll hang around for awhile but feel free to FreepMail as well. I am not very far behind. I know that you have answered most of my questions by ignoring the question and asking me another question. But that's OK. I understand about need to get to bed. Me too. I feel for you if you have to get up at 4am. Maybe it is because it is so late that we are all 'edgy'. I know I have discussed how this case seems to drag out the emotional rage factor.

I like to try and keep things civil and courteous, and I don't think I did too well tonight.

I hope we can continue to argue/debate another time. No matter what you believe.

Thanks......

[luvbach1]

Yes, MH was parked in neighborhood at times. And yes she sold cookies on one occasion to Westerfield.I aknowledged that in a previous post. To me that indicates that Danielle was merely acquainted with W. But, in my opinion, not well enough to make it likely that she would cross the street (which her parents didn't allow) and browse through his MH.

[Donzerly lights]

Me too. If you operated successfully in society before the crime, there is NO excuse to not defend yourself in your own words.

Since I'm not bound by jury instruction, I will absolutely think DW guilty, if he doesn't testify.