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.

[fatima]

Are you attorney's,don't answer if you don't want to.You both seem to know what he should do.

[Freedom2specul8]

Hey, I forgot to give you this link earlier..it's kind of easier to navigate cuz it's on 3 pages instead of 1 big page without paragraph breaks. dusek's opening statement It's all lower case cuz I just changed the font...didn't like the way it read on uniontrib.

[BunnySlippers]

The arrested him because he was cooperative.

I would love to know this and perhaps you can help.

If you ABSOLUTELY KNEW that Danielle was NEVER in Westerfield's motorhome what would you vote? Guilty or not guilty?

BTW, we will never know if she was or was not.

[AppyPappy]

. What does he need to testify about? What can he testify to?

He testifies to his innocence. He never saw the girl that day. She was never in his motor home to his knowledge. He went on a trip and got stuck. He drove around and came home. He did not kill her. What's the prosecution going to use as a counter? His fingerprints on her body? His DNA on her? Nothing.

If he does not sway the jury, they will convict him. It's just that close.

[the Deejay]

I answered post 21 in my post 29.

[BunnySlippers]

He testifies to his innocence. He never saw the girl that day. She was never in his motor home to his knowledge.

The defendant never has to testify in his own behalf. But most attorneys will tell you that it ever-so-little counts against them if they do not get up on the stand.

[UCANSEE2]

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

If you can't see the results so far of the Prosecution's case, their lack of proving what DUSEK said he would prove in the opening statement,the witnesses so far that have admitted to changing their stories, The latest being the LE on today, that after being asked to actually READ his notes, changed his story, if you can't see that this leads to the possibility that the police arrested the wrong man, then you would appear to have a completely closed mind. You are apparently reacting to others saying you have already made up your mind. And you have, haven't you ? You haven't even allowed the defense to finish their case. You had this attitude before Prosecution finished, and I believe, before they started.

Most of us here waited to see if Prosecution had some proof that would convince us DW was the culprit. Had they, I know I, and suspect others, would have not had any problem with saying, "we were wrong, the guy is guilty".

If DEFENSE provides PROOF DW could not possibly have done this, WILL YOU ADMIT YOU WERE WRONG?

[UCANSEE2]

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

So what?

[FresnoDA]

Westerfield seemed normal, neighbors testify

Mark Roehr described his neighbor, David Westerfield, as a normal, pleasant guy.

SAN DIEGO — After four weeks of testimony from prosecution witnesses, jurors began hearing David Westerfield's side of the story Tuesday.

Lawyers for the man accused of killing 7-year-old Danielle van Dam opened their case by calling several neighbors who disputed that Westerfield had behaved oddly last February when Danielle went missing. Perhaps more significantly, they described him as an outgoing guy with normal hobbies and relationships, not the strange pedophile portrayed by investigators.

Westerfield, a 50-year-old engineer who lived two doors from the van Dam family, faces the death penalty if convicted of Danielle's kidnapping and murder. She vanished from her bedroom the night of Feb. 1 and searchers found her naked body three weeks later by a roadside. Prosecutors allege he took Danielle on a long trip in his RV and at some point raped and killed her.

Prosecutors closed their case, which included strong DNA, fingerprint and fiber evidence linking Westerfield to the girl's disappearance, Tuesday morning. Judge William Mudd said that, depending on the outcome of a hearing, they may reopen their case later for one additional witness.

The testimony of Mark and Janet Roehr, a married couple who lived across the street from Westerfield, appeared to offer limited support for the defense's explanation of the strong forensic evidence presented by prosecutors.

Lawyer Steven Feldman has suggested Danielle may have once played in Westerfield's recreational vehicle and at that time deposited hair, blood and fingerprints. Her parents testified that such a scenario was impossible as they kept a tight reign on their children, and another witness said Westerfield had a high-tech security system on the vehicle.

But Mark Roehr told jurors Tuesday that on one occasion he walked right into his friend and neighbor's RV while it was parked on their street "without him unlocking the motor home."

Janet Roehr said Westerfield often left the door open as he packed and unpacked the vehicle. She also hinted that the van Dams may be less watchful parents than they claimed, saying that last month she saw the couple's youngest son, Dylen, 6, playing alone in his front yard. She said he chased the ball across the street, and she had to stop traffic to allow him to return safely.

Both Roehrs also contradicted other neighbors who testified for the prosecution that Westerfield normally took days to load his RV before a trip, unlike the quick packing job he did shortly after Danielle vanished.

"I've seen it pull up and in the same day take off," said Janet Roehr.

Westerfield's absence in the neighborhood the morning Danielle was discovered missing first caught investigators' attention and one detective previously testified that her suspicion was further heightened by an errant garden hose strewn across the neat lawn. But Janet Roehr and another neighbor, Paul Hung, said it was not unusual for Westerfield to leave the hose stretched out.

Police also concluded that Westerfield's account of a trip to the desert in his RV was odd since he hadn't taken his dune buggies, but Hung said he did not always take the off-road vehicles if his adult son, Neal, was not going.

Mark Roehr, as other residents of the Sabre Springs neighborhood have said, recalled seeing Westerfield briefly on their street a few hours after Danielle went missing. Roehr said Westerfield drove up the street in the RV, past scores of police cars and news vans.

"He kinda gave me a sign like, what's going on," said Roehr. After Westerfield parked the RV, he joined neighbors on a corner. "That's when I told him the little girl a couple of houses up the street was missing."

Prosecutor Jeff Dusek questioned each of the neighbors about how much they really knew about Westerfield's activities.

"Did you check the door on a daily basis to see if that door was locked or unlocked?" Dusek asked Mark Roehr, who conceded that he didn't.

He asked Hung, who lives next door to Westerfield, "How loud would someone have to scream in the Westerfield house for you to hear it?" Judge Mudd ruled the question argumentative and ordered Hung not to answer.

Dusek could do little to temper the portrait painted by Hung and the Roehrs. Hung said he and Westerfield frequently stood in their backyards talking over the fence and that his family had a standing invitation to use Westerfield's pool.

Janet Roehr said he was "friendly and very helpful." Mark Roehr said he visited Westerfield's home on dozens of occasions and had met his girlfriends, including one identified as Susan. She and Westerfield broke up shortly before Danielle vanished, and Roehr said Westerfield described breaking up with Susan as "tough."

All of his neighbors said they knew Westerfield's son and daughter, Lisa, who were frequent visitors at the house.

[AppyPappy]

But most attorneys will tell you that it ever-so-little counts against them if they do not get up on the stand.

I'm sure the lawyer for the guy I sent up for life told his client that his silence would help him. It was the wrong advice. He allowed the evidence to convict him.

If I am innocent, I am running to the stand to testify.

[fatima]

Thanks.I didn't know that in an opening statement that they could say what they want and not prove it.It would really help if they could because I am lost to how this happened,got in and got out of the house.

[UCANSEE2]

If he does testify he will get the chair

I would agree with you in that our own worst enemy is OUR OWN MOUTH.

The Prosecution can cross examine and get you flustered and confused, and MAKE YOU LOOK GUILTY in fronty of a JURY, even when you aren't. That is why the law says you do not have to testify at your own trial.

[BunnySlippers]

So what?

Because there's been a concerted effort in this forum to shut up people who feel that a child molester (Westerfield) has been caught.

[UCANSEE2]

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.

No, they THOUGHT they had their man, they were pressured to find someone, arrest them, and make it stick.

They did so, now they are finding that the don't really have the goods.

[BunnySlippers]

If I am innocent, I am running to the stand to testify.

Boy, I couldn't agree with you more.

[fiddlesticks]

U really CAN C a lot! I'm sure the blood on his shirt and his carpet were from that nose bleed Danielle had the day she played house in the motor home. And I'm sure she was jumping on the bed while leaving her fingerprint. David's perspiration is merely a result of his concern and eagerness to help the police. And I'm sure the Van Dam's terrible influence is what lead him into an addiction of pornography. POOR DAVID! He was just trying to buy a few drinks on the second of Feb. and ... now he's in jail. All of those classy friends of his really attest to his upstanding character. And that child pornography ... I'll bet Damon planted it in his house. And the dry cleaner lady, I'll bet she wanted to frame him. He'd merely had a heavy night drinking and forgot to get dressed before he took his dry cleaning in ... and how coincidental that he needed to clean his bedding this particular day. The stars, the Van Dams, the police, the dog, the experts ... they're all out to get that sweet man whose just too guiless to know how to cover up alarming coincidences.

[AppyPappy]

If you were on trial and you were innocent, you would testify. You would do anything to save your skin. We all would.

[BunnySlippers]

No, they THOUGHT they had their man, they were pressured to find someone, arrest them, and make it stick.

What proof do you have that no one else was checked out?

[BunnySlippers]

Bravo, Fiddlesticks!!!

[luvbach1]

You put your finger on it, or at least some of it. How did the girl's handprint get on the cabinet above the bed (the bed abutted the cabinets)? That means she was standing on the bed facing the cabinets, perhaps with her back toward her attacker. Further, how did her blood get in the motor home. How likely is it that she wandered in and bled? How did her blood get on his jacket? I don't think the defense can adequately explain these away. All the rest the defense will present (and has been presenting) to discredit the prosecution case will be no more than a smokescreen. In answer to other of your questions, I don't think the prosecution is certain of all the MO. It's likely he simply carried the girl out of the house the same way he entered it, stifling her cries.The house was asleep. I think he drove around with her, thus the prints and blood in the motor home. He also made that slip, saying we, when he should have said I, when describing his rambling journey.Nobody knows just when he did the dastardly deed but I don't think the case will hinge on that.