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.

[the Deejay]

A jury can NEVER hold it against a defendant if they DON'T testify. The judge instructs the jury on this.

[Politicalmom]

Since it is against the law for the jury to hold his not testifying against him, I doubt that. That pesky old
Fifth Amendment thing.

[pyx]

The jury will see his unwillingness to testify on his own behalf as an admission of guilt. He has to testify to save his neck. If he does testify, I'll bet the farm he gets off.

A defendant chosing to testify or chosing not to testify on his or her own behalf should never in any way be construed as an admission or denial of guilt. The defendant in ALL cases MUST be presumed INNOCENT.

[UCANSEE2]

See post 21

[BunnySlippers]

I think they fingered the wrong guy, before they knew EXACTLY what was going on over at the Van Dams home that evening.

Ha! And they say they haven't made up their minds yet!!!

[BunnySlippers]

The defendant in ALL cases MUST be presumed INNOCENT.

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

[gigi]

I thought they held up well on cross also. I didn't get to see all Damon and the gang testify, I did see a little of Brenda and some of her girlfriend on replays on CTV. I'm in the process of reading the PH testimony. It also bothers me that the judge won't let evidence about the VD's come in. I think their lifestyle is revelant to the kind of people that were around them. I wonder what the jury thought about the abrupt stop of the testimony of the officer today. I know what I'd be thinking, & thats what are they hiding?

[UCANSEE2]

I don't understand this,

That's OK,fatima, the rest of us are just as confused as you are. We don't understand exactly why the police locked onto one suspect, arrested that person before test results were even back, and failed to investigate any leads that did not support their one suspect.

[Donzerly lights]

Yes, Feldman should remind the jurors of every misleading statement and unfulfulled promise Dusek made. I'm wondering what the heck Dusek was thinking when he wrote that opening. Was forensic evidence still at the lab and the prosecution didn't get the results they EXPECTED?

I think the ruling in MA was that opening and closing statements are not evidence, and the jury is only allowed to consider evidence while deliberating.

[luvbach1]

If he doesn't testify, he will get the chair.

If he does testify he will get the chair (actually a choice of lethal injection or the gas chamber).

[BunnySlippers]

Judge Mudd might say "enough of this crap...you misled the jury, Dusek"...and I might turn into the tooth fairy this evening..

I'm waiting to see Feldman and his bug guy. Yeah, the bug guy probably will say that the body MAY HAVE been dumped later. But it sounds like it is not altogether certain that the body COULD NOT have been dumped earlier.

Sure looks like LE got their man.

[fatima]

Humm,they are really sure they have their man,the DA and police to go out on the line like that,thank you for your answers.

[BunnySlippers]

and failed to investigate any leads that did not support their one suspect.

What proof do you have of this?

[AppyPappy]

A jury can NEVER hold it against a defendant if they DON'T testify. The judge instructs the jury on this.

Yeah. Sure. That's nice. That means a lot. Except the testimony that is NOT presented by the defendent is NEVER heard by the jury. The judge tells the jury not to act on things they did not hear. Since the jury did not hear the defendent nullify the prosecution's evidence, they had to accept the prosecution's evidence without rebuttal. I've served on a 1st degree murder trial. All we had was the prosecution's evidence. The defense never said a word.

If Westerfield testifies that he went on a trip and never saw the girl, the jury will have to act on that. Combine that with the flimsy prosecution evidence and he walks.

[spectre]

Well, I patiently listened to the Prosecutions sorry case against DW. So we'll ALL just have to wait and see what Team Feldman proves...We wait.

sw

[UCANSEE2]

The jury will see his unwillingness to testify on his own behalf as an admission of guilt

I have to disagree. What does he need to testify about? What can he testify to?

He already cooperated with the police and where did that get him? The arrested him because he was cooperative.

His statements have been gone over and over in court and compared to various witnesses testimony as to their truth and accuracy.

If he is not guilty, then he knows nothing about Danielle's disappearance, so what can he testify to ??????? If you can answer that, I might accept your statement. It is usually the stance of the Defense lawyers to not have their client testify. It is a matter of law that you can not be compelled to testify against yourself.

[AppyPappy]

If he does testify he will get the chair (actually a choice of lethal injection or the gas chamber).

No way. The evidence is not sufficient to convict him if he fights it. Not in the jury's eyes.

[nycgal]

Is the DA allowed to do that,say they will show and not show?

The defense can bring that up during their closing statement.

[UCANSEE2]

I agree. But there is more. I believe the LEO's were caught between the VD's LIES, Diane Halfman's directions, and the DA's need for a quick arrest to assure his re-election bid.

[spectre]

Yes..

Night all...tommorrow.

sw