222 1 SAN DIEGO, CALIFORNIA; TUESDAY, 3-12-01; 9:00 A.M. 2 -0- 3 (THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT.) 4 THE COURT: GOOD MORNING. 5 OKAY. MY RECOLLECTION IS WE HAD A WITNESS 6 ON THE STAND. 7 LET ME SWEAR YOU IN AGAIN. 8 9 JOHNNY F. KEENE, 10 PEOPLE'S WITNESS, HAVING BEEN FIRST DULY SWORN, 11 TESTIFIED AS FOLLOWS: 12 13 THE COURT: TAKE THE STAND. 14 ONCE AGAIN, TELL US YOUR NAME. 15 THE WITNESS: JOHNNY F. KEENE, SPELLED 16 K-E-E-N-E. 17 THE COURT: ALL RIGHT. GO AHEAD, COUNSEL. 18 19 CROSS-EXAMINATION (RESUMED) 20 BY MR. BOYCE: 21 Q DETECTIVE KEENE, BEFORE TESTIFYING, WHAT 22 REPORTS DID YOU REVIEW? 23 A THE REPORTS THAT I MYSELF TYPED REGARDING 24 MY INTERVIEWS. 25 Q AND ONE OF -- YOU DID TWO REPORTS ON YOUR 26 INITIAL CONTACT WITH MR. WESTERFIELD, DIDN'T YOU? 27 A THAT'S CORRECT. 28 Q AND THOSE REPORTS WERE PREPARED ON 223 1 FEBRUARY 5TH OF 2002, WEREN'T THEY? 2 A ONE OF THEM WAS. 3 Q AND THEN THE OTHER ONE WAS PREPARED 4 MARCH 5TH OF 2002; IS THAT CORRECT? 5 A THAT'S CORRECT. 6 Q AND BOTH OF THOSE REPORTS WERE PREPARED 7 FROM NOTES THAT YOU HAD TAKEN FROM YOUR INTERVIEWS? 8 A THAT'S CORRECT. 9 Q AND DID YOU PRESERVE THOSE NOTES? 10 A I DID. 11 Q YOU DID? 12 A I DID. 13 Q AND YOU STILL HAVE THOSE NOTES? 14 A NOT WITH ME TODAY. BUT YES. 15 Q DID YOU REVIEW THE NOTES BEFORE YOU 16 TESTIFIED TODAY? 17 A NO. 18 Q WHILE YOU WERE SITTING HERE, YOU WERE 19 REVIEWING SEVERAL REPORTS. ARE THOSE THE REPORTS 20 THAT YOU JUST DESCRIBED? 21 A YES. 22 Q AND BEFORE COMING TO COURT TODAY, DID YOU 23 MEET WITH MR. DUSEK? 24 A I MET WITH HIM IN HIS OFFICE. WE DID NOT 25 DISCUSS THE CASE, THOUGH. 26 Q WHAT DID YOU DISCUSS? 27 A NOTHING. I MEAN, I WENT TO HIS OFFICE AND 28 THEN I WALKED WITH HIM DOWN HERE, BUT WE DID NOT 224 1 DISCUSS ANYTHING. 2 Q WHEN YOU INTERVIEWED MR. WESTERFIELD THE 3 FIRST TIME, YOU ALSO WALKED THROUGH THE HOUSE WITH 4 -- WAS IT DETECTIVE PARGA? 5 A THAT'S CORRECT. 6 Q AND ALSO MR. WESTERFIELD; IS THAT CORRECT? 7 A THAT'S CORRECT. 8 Q AND YOU WENT INSIDE THE HOUSE; WHEN YOU 9 FIRST ENTERED THE HOUSE, DID YOU NOTICE THAT THERE 10 WERE TWO VOLKSWAGEN BUMPERS THAT HAD JUST BEEN 11 PAINTED RIGHT INSIDE -- RIGHT INSIDE THE DOOR? 12 A NO. THEY WERE NOT BUMPERS RIGHT INSIDE THE 13 DOOR WHEN I WALKED IN. 14 Q DID YOU NOTICE THESE AUTO PARTS THAT WERE 15 INSIDE THE HOUSE THAT APPEARED TO BE OUT OF PLACE? 16 A NO, THERE WERE NOT ANY AUTO PARTS INSIDE 17 THE FRONT DOOR WHEN WE WALKED IN THE HOUSE THAT 18 MORNING. 19 Q AND IN YOUR WALK THROUGH THE HOUSE, THE 20 FIRST ROOM YOU WENT INTO THEN WAS THE LIVING ROOM; 21 IS THAT CORRECT? 22 A THAT'S CORRECT. THERE'S -- WHEN YOU FIRST 23 WALK IN THE FRONT DOOR, THERE'S ABOUT PROBABLY A 24 THREE-FOOT BY MAYBE SIX-FOOT AREA RIGHT INSIDE THE 25 FRONT DOOR, AND THEN THERE'S -- RIGHT IN FRONT, AS 26 YOU WALK IN RIGHT IN FRONT OF YOU, THERE'S A SMALL 27 WALL THAT'S PROBABLY TWO-AND-A-HALF, THREE FOOT 28 HIGH, AND, IN FACT, THERE WAS A MISSING FLYER OF 225 1 DANIELLE VAN DAM LAYING ON TOP OF THAT WALL. AND 2 THEN RIGHT IN PAST THAT WALL IS THE LIVING ROOM 3 AREA. 4 Q AND YOU AND DETECTIVE PARGA, 5 MR. WESTERFIELD THEN ENTERED THE LIVING ROOM AREA; 6 IS THAT RIGHT? 7 A THAT'S CORRECT. 8 Q YOU WALKED THROUGH THE LIVING ROOM AREA AND 9 YOU WENT OUT TO THE PATIO AREA? 10 A I DON'T REMEMBER THE EXACT ORDER THAT WE 11 WENT THROUGH THE HOUSE, BUT I DO RECALL WALKING 12 OUTSIDE THE BACK DOOR TO THE BACK PATIO AND POOL 13 AREA. 14 Q AS YOU WALK OUT THE BACK DOOR, WAS 15 DETECTIVE PARGA ALSO WITH YOU? 16 A I BELIEVE SHE WALKED OUT BEHIND ME, YES. 17 Q AND MR. WESTERFIELD WAS WALKING WITH YOU, 18 TOO; IS THAT CORRECT? 19 A I BELIEVE SO, YES. 20 Q WERE THERE ANY OTHER OFFICERS AT THAT TIME 21 WALKING THROUGH THE HOUSE? 22 A I DON'T RECALL. I DO RECALL SEEING 23 SERGEANT REYES ACTUALLY INSIDE THE HOUSE, BUT I 24 DON'T RECALL ANYBODY OTHER THAN HIM AND I DON'T 25 RECALL THAT HE WALKED THROUGH THE HOUSE. HE STEPPED 26 INSIDE AND BASICALLY STOOD IN JUST PAST THE ENTRANCE 27 AREA. 28 Q AND HAD YOU BEEN TO THE VAN DAMS' HOUSE 226 1 BEFORE? 2 A NO. I'VE NEVER BEEN TO THE VAN DAMS' 3 HOUSE. 4 Q TO YOUR KNOWLEDGE, HAD DETECTIVE PARGA BEEN 5 TO THE VAN DAMS' HOUSE? 6 A I BELIEVE SHE HAD AFTER -- AFTER -- I KNOW 7 SHE'S BEEN TO THE VAN DAM HOUSE. I DON'T RECALL 8 WHEN. 9 Q TO YOUR KNOWLEDGE, WAS SERGEANT RAY AT THE 10 VAN DAMS' HOUSE? 11 A TO MY KNOWLEDGE, NO. 12 Q SO AFTER YOU WALKED THROUGH THE LIVING ROOM 13 AND OUT TO THE PATIO AREA, MR. WESTERFIELD TOOK YOU 14 UPSTAIRS; IS THAT CORRECT? 15 A THAT'S CORRECT. 16 Q AND WAS DETECTIVE PARGA WITH YOU AS YOU 17 WERE WALKING THROUGH THE UPSTAIRS AREA? 18 A YES. 19 Q AND MR. WESTERFIELD SHOWED YOU VARIOUS 20 AREAS IN THE HOUSE, SUCH AS CLOSETS; IS THAT 21 CORRECT? 22 A THAT'S CORRECT. 23 Q AND YOU AND DETECTIVE PARGA WALKED OVER AND 24 EXAMINED THOSE AREAS; IS THAT CORRECT? 25 A THAT'S CORRECT. 26 Q HE ALSO SHOWED YOU THE ATTIC; IS THAT 27 CORRECT? 28 A THAT IS CORRECT. 227 1 Q AND YOU AND DETECTIVE PARGA OR ONE OF YOU 2 EXAMINED THE ATTIC? 3 A I DID. 4 Q AFTER EXAMINING THE UPSTAIRS AREA -- ABOUT 5 HOW LONG DID YOU SPEND WALKING AROUND THE UPSTAIRS 6 AREA? 7 A I THINK WE WERE IN THE HOUSE A TOTAL OF TEN 8 TO 15 MINUTES, SO WE WERE PROBABLY IN THE UPSTAIRS 9 AREA MAYBE FIVE MINUTES. 10 Q WAS SERGEANT RAY ALSO WALKING AROUND THE 11 UPSTAIRS AREA WITH YOU? 12 A NO, I DON'T RECALL HIM COMING UP THERE. 13 Q AND AFTER WALKING AROUND MR. WESTERFIELD'S 14 HOUSE, YOU LEFT THE HOUSE; IS THAT CORRECT? 15 A THAT'S CORRECT. 16 Q AND YOU AND DETECTIVE PARGA DROVE OVER TO 17 THE MOTORHOME? 18 A THAT IS CORRECT. 19 Q WHILE YOU WERE DRIVING OVER TO THE 20 MOTORHOME WITH DETECTIVE PARGA, DID YOU DISCUSS THE 21 FACT THAT MR. WESTERFIELD WAS A SUSPECT? 22 A NO. 23 Q NOTHING CAME UP BETWEEN YOU AND 24 DETECTIVE PARGA THAT YOU THOUGHT MR. WESTERFIELD 25 WAS -- ANYTHING WAS SUSPICIOUS ABOUT WHAT HE HAD 26 TOLD YOU OR ANY OF THE CONDUCT HE ENGAGED IN? 27 A I BELIEVE WE DISCUSSED OUR FEELINGS AS TO 28 THE FACT THAT WE BOTH FELT HE WAS MORE THAN 228 1 COOPERATIVE, MORE SO THAN MOST PEOPLE. BUT AT NO 2 TIME DID WE CALL HIM A SUSPECT OR DETERMINE THAT HE 3 WAS A SUSPECT. 4 Q WELL, YOU WERE DISCUSSING SUSPICIOUS 5 CIRCUMSTANCES IN THE CAR? 6 A THAT WOULD BE FAIR TO SAY. 7 Q AND YOU KNOW THAT PEOPLE IN LAW ENFORCEMENT 8 HAD IDENTIFIED HIM AS A SUSPECT AT THAT TIME? 9 MR. DUSEK: OBJECTION; IRRELEVANT. 10 THE COURT: COUNSEL, I'M NOT SURE HOW THIS IS 11 RELEVANT TO THIS HEARING. I CAN UNDERSTAND HOW IT 12 MIGHT BE RELEVANT TO OTHER MOTIONS DOWN THE LINE, SO 13 I'M GOING TO SUSTAIN THE OBJECTION. 14 MR. BOYCE: I UNDERSTAND, YOUR HONOR. 15 BY MR. BOYCE: 16 Q THEN YOU ARRIVED AT THE MOTORHOME; IS THAT 17 CORRECT? 18 A THAT'S CORRECT. 19 Q YOU AND DETECTIVE PARGA ENTERED THE 20 MOTORHOME? 21 A AT SOME POINT, YES. NOT RIGHT AWAY, BUT 22 YES. 23 Q AND YOU WALKED THROUGH THE MOTORHOME WITH 24 DETECTIVE PARGA? 25 A YES. 26 Q AND MR. WESTERFIELD WAS WITH YOU? 27 A HE WAS INSIDE THE MOTORHOME. 28 Q HOW LONG DID IT TAKE YOU TO GET FROM 229 1 MR. WESTERFIELD'S HOUSE TO THE MOTORHOME? 2 A I DIDN'T TIME IT. BUT I'D ESTIMATE BETWEEN 3 20 AND 25 MINUTES. 4 Q MR. WESTERFIELD WAS CONTINUING TO BE 5 COOPERATIVE WITH YOU IN THE MOTORHOME; CORRECT? 6 A THAT'S CORRECT. 7 Q HE WAS SHOWING YOU AREAS IN THE MOTORHOME 8 TO LOOK? 9 A CORRECT. 10 Q HE SHOWED YOU THE BEDROOM AREA; IS THAT 11 CORRECT? 12 A I ACTUALLY WALKED TO THE BEDROOM AREA BY 13 MYSELF. HE DIDN'T POINT IT OUT. HE WAS INSIDE THE 14 MOTORHOME AT THE TIME. YES. 15 Q DID HE POINT OUT ANY AREAS IN THE BEDROOM 16 AREA TO LOOK? 17 A NO, I BELIEVE AT THE POINT THAT I WAS IN 18 THE BEDROOM AREA, HE WAS FURTHER UP TOWARDS THE 19 FRONT TALKING WITH DETECTIVE PARGA. 20 Q THERE WAS A PILE OF BEDDING MATERIAL ON THE 21 BED, WASN'T THERE? 22 A NO, THERE WAS NOT. 23 Q YOU DON'T RECALL SEEING ANY BEDDING 24 MATERIAL ON THE BED? 25 A IT'S NOT THAT I DON'T RECALL. THERE WAS 26 NOT. THERE WERE SHEETS ON THE BED BUT NO OTHER 27 BEDDING MATERIAL LAYING ON THE BED. 28 Q DID YOU ACTUALLY GO IN THE BEDROOM? 230 1 A I WALKED THE ENTIRE LENGTH OF THE 2 MOTORHOME, YES. 3 Q AND YOU WERE INSIDE THE BEDROOM; IS THAT 4 CORRECT? 5 A YES. IT'S NOT A CLOSED-OFF BEDROOM. IT'S 6 THE VERY END OF THE MOTORHOME. 7 Q YOU WALKED AROUND IN THAT AREA LOOKING FOR 8 BEDDING, IS THAT FAIR TO SAY? 9 A I WASN'T LOOKING SPECIFICALLY FOR BEDDING, 10 BUT I DID WALK AROUND THE BED IN THE BEDROOM AREA. 11 Q WAS DETECTIVE PARGA WALKING AROUND IN THAT 12 AREA WITH YOU? 13 A NO. SHE WAS FURTHER UP TOWARDS THE FRONT 14 OF THE MOTORHOME IN WHAT I WOULD GUESS WOULD BE 15 CONSIDERED THE DINING ROOM AREA. 16 Q DID YOU WALK INTO THE BATHROOM AREA OF THE 17 MOTORHOME? 18 A I WALKED PAST IT AND LOOKED IN. THE 19 BATHROOM AREA IN THAT PARTICULAR MOTORHOME IS NOT 20 CLOSED OFF AS IN SOME MOTORHOMES THAT I'VE SEEN. 21 IT'S BASICALLY AN OPEN AREA AND IT HAS A, IF I 22 REMEMBER CORRECTLY, IT'S GOT LIKE AN ACCORDION DOOR 23 THAT YOU CAN PULL CLOSED IF YOU WERE TO WANT 24 PRIVACY. 25 Q DETECTIVE PARGA WAS WITH YOU? 26 A SHE WAS STILL IN THE MOTORHOME. 27 Q DID SHE WALK INTO THE BATHROOM, ALSO? 28 AREA OF THE BATHROOM? 231 1 A SHE MAY HAVE WHILE I WAS FURTHER BACK IN 2 THE MOTORHOME. AGAIN, WHILE I WAS STANDING AT THE 3 BATHROOM AREA, SHE WASN'T STANDING RIGHT BESIDE ME. 4 Q MR. WESTERFIELD WAS ALSO WITH YOU? 5 A HE WAS INSIDE THE MOTORHOME. 6 Q AFTER YOU LEFT THE MOTORHOME, YOU RETURNED 7 TO MR. WESTERFIELD'S AT SOME POINT LATER IN THE DAY? 8 A THAT'S CORRECT. 9 Q WAS MR. WESTERFIELD'S SON HOME AT THAT 10 TIME? 11 A NO. HE WAS NEVER -- MR. WESTERFIELD'S SON 12 WAS NEVER AT THE HOUSE WHILE I WAS THERE. AT LEAST 13 NOT TO MY KNOWLEDGE. 14 Q HE WAS THERE WHEN YOU RETURNED IN THE 15 EVENING, WASN'T HE? 16 A I DID NOT RETURN IN THE EVENING. 17 Q WHEN YOU APPROACHED MR. WESTERFIELD IN THE 18 DRIVEWAY THAT MORNING, YOU WERE NOTIFIED THAT HE HAD 19 JUST COME OUT OF HIS HOUSE AND OFFICERS WERE TALKING 20 TO HIM; IS THAT CORRECT? 21 A THAT'S CORRECT. 22 Q WHEN YOU APPROACHED HIM, YOU DESCRIBED, I 23 BELIEVE, SEVEN OFFICERS IN THAT IMMEDIATE VICINITY, 24 SEVEN DETECTIVES. 25 A I BELIEVE WHAT I SAID WAS THERE WERE -- 26 THERE WAS A SERGEANT AND THREE DETECTIVES PRESENT 27 AND THEN MYSELF AND TWO OTHER DETECTIVES ARRIVED 28 ABOUT THE SAME TIME. 232 1 Q YOU NOTICED THE MEDIA IN THE AREA, TOO? 2 A THE MEDIA WAS I BELIEVE AT THE VAN DAM 3 HOUSE AT THE TIME. IT WASN'T UNTIL A LITTLE BIT 4 LATER THEY CAME DOWN TO MR. WESTERFIELD'S HOUSE. 5 Q WHEN YOU CONTACTED MR. WESTERFIELD, THE 6 MEDIA THEN MOVED OVER TO WESTERFIELD'S HOUSE, DIDN'T 7 THEY? 8 A YOU KNOW, I WASN'T REALLY PAYING ATTENTION, 9 SO I DON'T KNOW -- TO THE MEDIA, SO I DON'T KNOW AT 10 WHAT POINT THEY CAME DOWN. BUT I BELIEVE ONE OR 11 TWO, I DID SEE ONE OR TWO CAMERAS MAKE THEIR WAY 12 DOWN. 13 Q YOU COULD SEE THE VAN DAMS' HOUSE, THOUGH, 14 FROM THE WESTERFIELD DRIVEWAY? 15 A YES. 16 Q AND YOU CAN SEE THE MEDIA CAMERAS AROUND 17 THE VAN DAM HOUSE FROM THE WESTERFIELD DRIVEWAY? 18 A YES. 19 Q THEY ALSO HAD SATELLITE CAMERAS THERE, 20 DIDN'T THEY? SATELLITE ANTENNAS. 21 A I WOULD ASSUME SO. 22 Q THERE WERE MEDIA TRUCKS GOING AT THE TIME? 23 A YES. 24 Q THERE WERE MULTIPLE TRUCKS IN THE AREA? 25 MR. DUSEK: OBJECTION; RELEVANCY. 26 THE COURT: COUNSEL, WE HAVE GONE OVER THIS IN 27 THE PRELIMINARY VOIR DIRE. AND I DON'T SEE HOW IT'S 28 PARTICULARLY RELEVANT TO THE DECISION I HAVE TO MAKE 233 1 WHERE THE MEDIA WAS. 2 BY MR. BOYCE: 3 Q WHEN YOU CONTACTED MR. WESTERFIELD, YOU 4 SAID HE WAS SWEATING; IS THAT CORRECT? 5 A AS HE TALKED, YES, HE WAS SWEATING. 6 Q HE HAD JUST WALKED OUT INTO THIS AREA WHERE 7 THERE WERE SEVERAL DETECTIVES, MULTIPLE MEDIA TRUCKS 8 AND SATELLITES AND CAMERAS GOING OFF AND CAMERAS 9 RUNNING WHILE YOU WERE TALKING TO HIM; CORRECT? 10 A I WOULDN'T -- I WOULDN'T SAY THAT'S FAIR TO 11 SAY. WHEN HE WALKED OUT, AGAIN, THERE WAS NOT 12 MULTIPLE MEDIA IN HIS DRIVEWAY, AROUND HIS HOUSE. 13 THERE WERE FOUR DETECTIVES; ONE SERGEANT AND THREE 14 DETECTIVES AT THE TIME HE WALKED OUT. 15 Q WELL, THERE WAS MULTIPLE MEDIA IN FRONT OF 16 THE VAN DAMS' HOUSE WITHIN EYESIGHT; CORRECT? 17 A TRUE. 18 Q AND YOU APPROACHED MR. WESTERFIELD AND 19 STARTED ASKING HIM WHERE HE'D BEEN THAT WEEKEND; 20 CORRECT? 21 A THAT'S CORRECT. 22 Q AND THERE WAS -- THE FACT THAT THERE WAS A 23 MISSING GIRL IN THE NEIGHBORHOOD WAS COMMON 24 KNOWLEDGE IN THAT NEIGHBORHOOD BY THAT TIME; IS THAT 25 FAIR TO SAY? 26 A THAT'S FAIR TO SAY. 27 Q WHEN YOU TALKED TO MR. WESTERFIELD, HE HAD 28 TOLD YOU HE'D BEEN TO GLAMIS, DIDN'T HE? 234 1 A YES, HE DID. 2 Q AND YOU CONFIRMED THAT HE'D BEEN TO GLAMIS, 3 DIDN'T YOU? 4 A I DID NOT PERSONALLY CONFIRM THAT HE'D BEEN 5 TO GLAMIS. I BELIEVE IT WAS CONFIRMED. 6 Q YOU WERE TOLD THAT THAT HAD BEEN CONFIRMED; 7 CORRECT? 8 A CORRECT. 9 Q HE TOLD YOU HE HAD BEEN TO THE SILVER 10 STRAND? 11 A THAT'S CORRECT. 12 Q AND THAT WAS CONFIRMED THAT HE WAS AT THE 13 SILVER STRAND; IS THAT CORRECT? 14 A THAT'S CORRECT. 15 Q THAT WAS A TRUTHFUL STATEMENT; RIGHT? 16 A YES. 17 Q AND HE TOLD YOU THAT THERE WAS A DISPUTE 18 OVER WHETHER HE HAD PAID TOO MUCH WHEN HE WENT TO 19 THE SILVER STRAND? 20 A IN HIS INITIAL STATEMENT TO ME, HE DID NOT 21 TELL ME -- HE DID NOT MENTION ANY DISPUTE. 22 Q BUT HE SAID HE'D PAID TO GO TO THE SILVER 23 STRAND; CORRECT? 24 A HE DID SAY HE'D PAID FOR THE ENTIRE 25 WEEKEND, CORRECT. 26 Q YOU CONFIRMED THAT HE HAD, IN FACT, DONE 27 SO? 28 A AGAIN, IT WAS CONFIRMED. I DID NOT DO IT. 235 1 Q NOW, HE TOLD YOU HE LEFT THE SILVER STRAND, 2 HE DIDN'T HAVE ENOUGH MONEY TO GO TO GLAMIS; IS THAT 3 CORRECT? 4 A CORRECT. HE SAID THAT THE REASON HE WENT 5 TO THE STRAND IN THE FIRST PLACE WAS BECAUSE HE 6 DIDN'T HAVE HIS WALLET AND THEREFORE DID NOT HAVE 7 ENOUGH MONEY FOR GAS TO MAKE IT TO GLAMIS. 8 Q AND, IN FACT, HE TOLD YOU HE WAS DRIVING 9 HIS MOTORHOME? 10 A THAT'S CORRECT. 11 Q AND DO YOU KNOW HOW MANY GALLONS THAT 12 MOTORHOME HOLDS OF GAS? 13 A I'M NOT FAMILIAR WITH MOTORHOMES. 14 Q YOU DON'T KNOW HOW MUCH IT WOULD COST TO 15 FILL UP THAT MOTORHOME WITH GAS, DO YOU? 16 A NO, I DON'T. 17 Q YOU DON'T KNOW HOW MANY MILES HE GETS TO 18 THE GALLON, DO YOU? 19 A NO, I DON'T. 20 Q IS IT FAIR TO SAY IT'S PROBABLY FAIRLY 21 EXPENSIVE TO FILL UP THAT MOTORHOME? 22 A I WOULD GUESS IT IS. 23 Q IT'S QUITE A WAYS FROM THE SILVER STRAND TO 24 GLAMIS AS FAR AS THE DRIVE, ISN'T IT? 25 A I'VE NEVER DRIVEN TO GLAMIS. I COULD ONLY 26 GUESS THAT IT'S QUITE A FEW MILES. 27 Q IT'S FARTHER TO GLAMIS THAN IT IS FROM THE 28 SILVER STRAND BACK TO SABRE SPRINGS, ISN'T IT? 236 1 A I WOULD GUESS, YES. 2 Q YOU TOLD US YOU SEARCHED THE GARAGE, 3 MR. WESTERFIELD'S GARAGE WITH DETECTIVE PARGA. 4 A YES. AND, AGAIN, IN USING THE WORD 5 "SEARCH," I MENTION THAT IT WAS A CURSORY SEARCH. 6 WE DIDN'T GO INTO GREAT DETAIL. 7 Q WELL, "CURSORY SEARCH." IT WAS A SEARCH, 8 THOUGH; CORRECT? 9 A YES. 10 Q AND YOU SEARCHED ONE SIDE OF THE GARAGE AND 11 DETECTIVE PARGA SEARCHED THE OTHER? 12 A THAT'S CORRECT. 13 Q DETECTIVE PARGA TOLD YOU AT SOME POINT THAT 14 SHE SMELLED BLEACH ON HER SIDE OF THE GARAGE? 15 A THAT'S CORRECT. 16 Q YOU DIDN'T SMELL ANY BLEACH ON YOUR SIDE OF 17 THE GARAGE, THOUGH, DID YOU? 18 A THAT'S CORRECT. 19 Q YOU DIDN'T SMELL ANY BLEACH IN THE HOUSE, 20 DID YOU? 21 A NO, I DIDN'T. 22 Q YOU DIDN'T SMELL ANY BLEACH IN THE 23 MOTORHOME, DID YOU? 24 A I DID NOT. 25 Q IN FACT, THE MOTORHOME SMELLED COMPLETELY 26 NORMAL, DIDN'T IT? 27 A DEPENDING ON WHAT NORMAL IS, BUT -- 28 Q WELL, YOU DIDN'T NOTICE ANYTHING UNUSUAL -- 237 1 THE COURT: ONE AT A TIME, PLEASE. 2 THE REPORTER: "DEPENDING ON WHAT NORMAL IS"? 3 THE WITNESS: DEPENDING ON WHAT NORMAL IS, I 4 DIDN'T SMELL ANYTHING THAT MADE MY EYES WATER OR, 5 YOU KNOW, MADE ME THINK, OH, THIS STINKS, BUT NO. 6 BY MR. BOYCE: 7 Q LET ME ASK THIS: YOU DIDN'T SMELL ANYTHING 8 UNUSUAL IN THE MOTORHOME, DID YOU? 9 A NO. 10 Q YOU DIDN'T NOTE ANYTHING UNUSUAL IN YOUR 11 REPORT ABOUT WHAT YOU SMELLED IN THE MOTORHOME, DID 12 YOU? 13 A I DID NOT. 14 Q AND WHEN YOU ENTERED THE MOTORHOME, YOU 15 LOOKED AROUND, DIDN'T YOU? 16 A YES. 17 Q IT DIDN'T -- DID NOT APPEAR TO HAVE BEEN 18 CLEANED RECENTLY, DID IT? 19 A IT DIDN'T APPEAR DIRTY. 20 Q IT DIDN'T APPEARED TO BE CLEAN? 21 A I'M NOT SURE I UNDERSTAND WHAT YOU'RE 22 ASKING. 23 Q DID IT APPEAR AS THOUGH THE INSIDE OF THE 24 MOTORHOME HAD BEEN CLEANED RECENTLY? 25 A I'M NOT SURE I COULD -- I COULD STATE 26 WHETHER IT APPEARED TO HAVE BEEN CLEANED RECENTLY OR 27 NOT. IT WAS NOT DIRTY. 28 Q YOU DIDN'T NOTE ANYTHING THAT INDICATED TO 238 1 YOU OR BROUGHT YOUR ATTENTION THAT IT HAD BEEN 2 CLEANED RECENTLY, DID IT, DID YOU? 3 A I WOULD SAY THE ONLY THING ALONG THOSE 4 LINES THAT I COULD -- THAT I WOULD BE ABLE TO TELL 5 IF IT HAD BEEN CLEANED WAS WHETHER I SMELLED 6 CLEANING PRODUCTS, AND I DID NOT SMELL THAT. BUT 7 WHETHER IT HAD BEEN WIPED DOWN WITH SOAP AND WATER 8 OR ANYTHING LIKE THAT, I COULDN'T SAY. 9 Q FROM YOUR VISUAL OBSERVATION, DID IT APPEAR 10 TO HAVE BEEN CLEANED RECENTLY? 11 A AGAIN, IT DID NOT APPEAR DIRTY. I DIDN'T 12 SEE DUST ON THE COUNTERS OR ANYTHING LIKE THAT. THE 13 ONLY -- AS I TESTIFIED YESTERDAY, THE ONLY THING I 14 REALLY SAW THAT DIDN'T APPEAR TO BE IN ORDER WAS THE 15 BED WAS UNMADE. THERE WERE SHEETS ON IT BUT NO 16 COMFORTER. 17 MR. BOYCE: IF I COULD HAVE JUST A MOMENT, YOUR 18 HONOR. 19 THE COURT: YOU MAY. 20 MR. BOYCE: I HAVE NOTHING FURTHER, YOUR HONOR. 21 THE COURT: THANK YOU. 22 COUNSEL? 23 24 REDIRECT EXAMINATION 25 BY MR. DUSEK: 26 Q DETECTIVE, YOU TOLD US YESTERDAY THAT THE 27 DEFENDANT TOLD YOU ABOUT THE REASON FOR GOING TO THE 28 SILVER STRAND AND THEN LEAVING THERE EARLY WAS 239 1 BECAUSE HE DIDN'T HAVE HIS WALLET; IS THAT RIGHT? 2 A THAT'S CORRECT. 3 Q COUNSEL'S ASKED YOU IF YOU CONFIRMED THE 4 LOCATIONS WHERE HE WENT. DID YOU CONFIRM WHETHER OR 5 NOT HE HAD A WALLET AT THE SILVER STRAND? 6 A PERSONALLY, I DID NOT. BUT DETECTIVES DID 7 SPEAK WITH THE PARK RANGER AT THE SILVER STRAND. 8 AND THE PARK RANGER SPECIFICALLY REMEMBERED WHEN HE 9 WENT BACK TO TALK TO MR. WESTERFIELD ABOUT THE 10 OVERPAYMENT, THAT MR. WESTERFIELD INDEED PULLED HIS 11 WALLET FROM HIS PANT'S POCKET AND SHOWED THE RANGER 12 HOW MUCH MONEY HE HAD WITH HIM AT THE TIME AND 13 STATED, "I COULDN'T HAVE OVERPAID YOU, BECAUSE I 14 STILL HAVE THIS MUCH MONEY." 15 Q SO HE WASN'T BEING TRUTHFUL FOR HIS REASONS 16 FOR DOING WHAT HE WAS DOING? 17 MR. BOYCE: OBJECTION. 18 MR. FELDMAN: OBJECTION. 19 THE COURT: ONE AT A TIME. YOU DON'T GET ANY 20 EXTRA POINTS BECAUSE TWO OF YOU OBJECTED. 21 SUSTAINED. 22 MR. DUSEK: NOTHING FURTHER. 23 THE COURT: ANYTHING FURTHER? 24 MR. BOYCE: CAN I HAVE JUST A MOMENT? 25 NOTHING FURTHER, YOUR HONOR. 26 THE COURT: ALL RIGHT. THANK YOU. YOU'RE 27 EXCUSED. 28 MAY -- IS THIS WITNESS SUBJECT TO RECALL? 240 1 MR. BOYCE: SUBJECT TO RECALL. 2 THE COURT: SIR, REMEMBER MY ADMONITIONS THAT 3 LAST UNTIL THIS HEARING IS OVER. 4 MR. DUSEK: CALL JIM WATKINS. 5 THE COURT: OKAY. 6 MR. BOYCE: YOUR HONOR, WE HAVE A RELEVANCE 7 OBJECTION TO THIS WITNESS'S TESTIMONY OR AT LEAST A 8 SUBSTANTIAL PORTION OF IT. WE THINK IT'S HIGHLY 9 PREJUDICIAL AND WE WOULD REQUEST AN IN-CAMERA 10 HEARING BEFORE THIS WITNESS TESTIFIED OR PRESENTS 11 ANY EVIDENCE. 12 THE COURT: COUNSEL? 13 MR. DUSEK: WHAT HE'S GOING TO TESTIFY TO 14 REGARDS TO COUNT 3, AND IT GOES TO THE MOTIVE OF 15 CRIME. 16 MR. BOYCE: YOUR HONOR, WE WANT YOU TO REVIEW 17 ANY EVIDENCE THAT THEY INTEND TO INTRODUCE BEFORE 18 THIS WITNESS IS EXAMINED ABOUT IT OR BEFORE THE 19 EVIDENCE IS PRESENTED. 20 MR. DUSEK: MAKE AN OFFER OF PROOF THAT THESE 21 EXHIBITS CAME OFF THE DEFENDANT'S COMPUTER PURSUANT 22 TO A SEARCH WARRANT AND HIS CONSENT. 23 MR. BOYCE: WELL, YOUR HONOR, THERE'S NO 24 EVIDENCE THAT THESE PHOTOS ARE ILLEGAL. THERE'S NO 25 EVIDENCE THAT THEY WERE DOWNLOADED BY 26 MR. WESTERFIELD OR WHO THEY WERE DOWNLOADED BY. AND 27 THERE'S NO EVIDENCE THAT THERE IS ANY LAW VIOLATION 28 FOR THESE PHOTOS OR THAT THEY HAVE ANY RELEVANCE 241 1 UNTIL YOUR HONOR HAS A CHANCE TO REVIEW THEM. 2 THE COURT: ARE YOU TELLING ME THAT THESE ARE 3 PHOTOGRAPHS THAT APPLY TO SOMETHING OTHER THAN 4 COUNT 3? 5 MR. DUSEK: THEY APPLY TO COUNT 3 AND THEY WILL 6 ALSO INDICATE MOTIVE FOR WHY HE DID WHAT HE DID. 7 THE COURT: I UNDERSTAND THE MOTIVE. I 8 UNDERSTAND THAT. 9 THEY ALSO APPLY TO COUNT 3? 10 MR. DUSEK: YES. 11 MR. BOYCE: YOUR HONOR, AS FAR AS COUNT 3, I 12 HAVE REVIEWED THE PHOTOGRAPHS AND I DON'T BELIEVE 13 THAT ANY OF THEM ARE -- COME WITHIN THE AMBIT OF 14 COUNT 3 AS DEFINED BY THE PENAL CODE. 15 THE COURT: WELL, WHAT I WILL DO FOR YOU, I'LL 16 AT LEAST REVIEW THE PHOTOGRAPHS, AND THEN I'LL 17 DETERMINE WHETHER OR NOT WE'RE GOING TO HAVE ANY 18 SORT OF IN-CAMERA HEARING. 19 MR. BOYCE: THANK YOU. 20 THE COURT: MAY I SEE THEM, PLEASE. MAY WE HAVE 21 THEM MARKED SO THAT WHEN I MAKE SOME SORT OF A 22 RULING, SOMEONE ELSE WILL KNOW WHAT I'M REFERRING 23 TO. 24 MR. DUSEK: YOUR HONOR, MARKED AS PEOPLE'S 25 EXHIBIT 4, COLOR PHOTOGRAPHS, MULTIPLE PAGES THAT 26 SEEM TO BE ATTACHED WITH A PAPER CLIP. 27 AND HAVE BEEN MARKED AS PEOPLE'S EXHIBIT 5, 28 MULTIPLE PAGES OF LOOKS LIKE ANIMATIONS, CARTOONS. 242 1 THE COURT: ALL RIGHT. THANK YOU. 2 (PEOPLE'S EXHIBITS 4 AND 5 MARKED FOR 3 IDENTIFICATION.) 4 MR. BOYCE: I OBJECT AS FAR AS RELEVANCE, 352, 5 AND 1101. 6 THE COURT: THANK YOU. 7 (PAUSE IN PROCEEDINGS WHILE COURT REVIEWS 8 EXHIBITS.) 9 MR. FELDMAN: YOUR HONOR, EXCUSE ME. YOU'RE 10 DISPLAYING TO THE AUDIENCE. 11 THE COURT: IF THEY CAN SEE UP HERE, I WOULD 12 BE -- 13 MR. FELDMAN: THERE'S CAMERAS WITH ZOOM LENSES. 14 THE COURT: DON'T ZOOM IN ON THESE. 15 THANK YOU FOR POINTING THAT OUT. I DIDN'T 16 THINK ABOUT THAT. I COULDN'T IMAGINE THAT THEY 17 COULD DO THAT. 18 (PAUSE IN PROCEEDINGS WHILE COURT REVIEWS 19 EXHIBITS.) 20 THE COURT: WHAT'S THE OBJECTION, AGAIN, PLEASE? 21 MR. BOYCE: THE OBJECTION IS RELEVANCE, 352, AND 22 1101, AND ALSO UNDER THE FIFTH, SIXTH, AND THE 14TH 23 AMENDMENT OF THE CONSTITUTION, YOUR HONOR. 24 THE COURT: LET'S TRY THE FIFTH, SIX, AND 14TH 25 AMENDMENT TO THE CONSTITUTION. WHAT DO YOU MEAN? 26 MR. BOYCE: PROSECUTION HAS OFFERED THEM AS 27 MOTIVE, APPARENTLY. BUT THAT'S PURELY SPECULATION. 28 AND UNDER THE FIFTH, SIXTH, AND 14TH AMENDMENT TO 243 1 THE CONSTITUTION IT'S A VIOLATION OF 2 MR. WESTERFIELD'S DUE PROCESS RIGHTS TO HAVE THOSE 3 PRESENTED, BECAUSE OF THE UNDULY PREJUDICIAL NATURE 4 OF THE PHOTOGRAPHS, AND ATTEMPTING TO EITHER AS A 5 BINDOVER OR TO CONVICT HIM AT TRIAL. 6 WE WOULD ALSO REQUEST ANY -- WE WOULD ALSO 7 REQUEST COPIES OF THOSE PHOTOS IN ORDER TO PRESENT 8 AN AFFIRMATIVE DEFENSE AT PRELIMINARY HEARING AND 9 CONSULT WITH OUR OWN EXPERT. 10 THE COURT: WELL, I'M SURE THAT YOU CAN HAVE 11 COPIES OF THESE PHOTOS. 12 MR. DUSEK: I'M NOT SURE THEY CAN. I THINK IT'S 13 ILLEGAL TO POSSESS THOSE. THEY CAN -- THEY HAVE 14 BEEN TOLD THAT THEY CAN LOOK AT THEM AT OUR 15 FACILITIES, BUT TO DUPLICATE AND DISTRIBUTE THAT 16 MATERIAL -- 17 THE COURT: EVEN FOR THE PURPOSES OF PRESENTING 18 A DEFENSE? 19 MR. DUSEK: I BELIEVE SO. 20 MR. BOYCE: WE'RE REQUESTING THEM IN A 21 CONFIDENTIAL MANNER, YOUR HONOR. THIS CAN BE 22 RESOLVED AT ANY TIME. 23 THE COURT: I THINK WE CAN RESOLVE THAT LATER. 24 I CERTAINLY THINK YOU'RE ENTITLED TO HAVE ACCESS TO 25 THEM IF YOU'RE NOT ENTITLED TO COPY THEM. AND RIGHT 26 NOW, I DON'T HAVE THE LAW IN FRONT OF ME TO 27 DETERMINE WHETHER OR NOT IT'S APPROPRIATE TO EVEN 28 ALLOW IT OR I'M NOT SURE I CAN'T ALLOW IT. 244 1 I KNOW THAT I'VE ALWAYS HEARD THAT YOU'RE 2 NOT ALLOWED TO PHOTOCOPY MONEY. AND HOW MANY DRUG 3 CASES DO WE SEE WHERE WE HAVE PHOTOCOPIES OF THE 4 MONEY THAT WAS SEIZED FROM THE DEFENDANT? SO I 5 DON'T KNOW. 6 BUT I WILL MAKE SURE THERE'S AN 7 ACCOMMODATION SO THAT YOU HAVE ACCESS TO THEM, AND 8 I'LL SPEND A LITTLE TIME TRYING TO DETERMINE WHETHER 9 OR NOT IT WOULD BE A VIOLATION OF THE LAW TO ALLOW 10 YOU TO PHOTOCOPY THAT. 11 NOW, WHAT DOES THE PROSECUTION HAVE TO SAY 12 OTHER THAN MOTIVE? 13 MR. DUSEK: THAT THE ITEMS INDICATE A CRIME THAT 14 WE HAVE ALLEGED IN 311.11. THE WITNESSES WILL BE 15 HERE TO TESTIFY REGARDING THE ACQUISITION OF THESE 16 ITEMS. AND THE TRIER OF FACT WILL BE ABLE TO MAKE A 17 DETERMINATION BASED UPON THE EVIDENCE THAT'S HEARD 18 AND OBSERVATIONS OF THESE EXHIBITS. 19 THE COURT: IS IT YOUR POSITION THAT THE 20 CARTOONS CONSTITUTE A VIOLATION OF COUNT 3? 21 MR. DUSEK: I BELIEVE THE CARTOONS GO TO THE 22 MOTIVE. 23 PERHAPS ANIMATION IS BETTER THAN CARTOON. 24 THE COURT: CARTOONS, ANIMATION, SAME THING. 25 DEPENDS HOW OLD YOU ARE. WHEN I GREW UP, IT'S 26 CARTOONS. 27 THE OBJECTION IS OVERRULED. 28 MR. DUSEK: DETECTIVE WATKINS. 245 1 2 JAMES M. WATKINS, 3 PEOPLE'S WITNESS, HAVING BEEN FIRST DULY SWORN, 4 TESTIFIED AS FOLLOWS: 5 6 THE COURT: PLEASE TAKE THE STAND. 7 COUNSEL, BEFORE THESE PHOTOGRAPHS, 8 ANIMATIONS ARE DISPLAYED, PLEASE MAKE SURE YOU CAN 9 LAY A FOUNDATION. OKAY? 10 MR. DUSEK: I DON'T INTEND TO DISPLAY THEM, YOUR 11 HONOR. 12 THE COURT: OH, OKAY. 13 MR. DUSEK: THEY PROBABLY CAN'T BE PUBLISHED 14 ANYWAY. 15 16 DIRECT EXAMINATION 17 BY MR. DUSEK: 18 Q SIR, WOULD YOU STATE YOUR FULL NAME, 19 PLEASE, AND SPELL YOUR LAST NAME. 20 A JAMES M. WATKINS, W-A-T-K-I-N-S. 21 Q HOW ARE YOU EMPLOYED, SIR? 22 A I'M A DETECTIVE WITH THE SAN DIEGO POLICE 23 DEPARTMENT. 24 Q HOW LONG HAVE YOU BEEN WITH THE POLICE 25 DEPARTMENT? 26 A APPROXIMATELY 19 YEARS. 27 Q WHAT'S YOUR CURRENT ASSIGNMENT? 28 A I'M CURRENTLY ASSIGNED TO THE REGIONAL 246 1 COMPUTER FORENSICS LABORATORY AS A COMPUTER 2 FORENSICS EXAMINER. 3 Q WHAT DO YOU DO THERE? 4 A WHAT WE DO THERE IS EXTRACT EVIDENCE FROM 5 COMPUTERS AND DIGITAL EVIDENCE. WE EXTRACT IT 6 WITHOUT ALTERATION TO THE ORIGINAL FORM AND THEN WE 7 MAKE IT IN A PRESENTABLE MANNER FOR COURT. 8 Q WOULD YOU TELL US YOUR BACKGROUND THAT 9 QUALIFIES YOU TO DO THAT WORK WITH COMPUTERS. 10 A I'M CERTIFIED BY THE FBI LABORATORY IN 11 WASHINGTON, D.C. AS A COMPUTER FORENSICS EXAMINER. 12 I'M ALSO A MEMBER OF THE FBI'S COMPUTER ANALYSIS 13 RESPONSE TEAM. AS PART OF THAT CERTIFICATION, I'VE 14 RECEIVED APPROXIMATELY 800 HOURS OF TRAINING 15 SPECIFICALLY RELATED TO COMPUTER FORENSICS. 16 SOME OF THE TRAINING I'VE RECEIVED WAS THE 17 INITIAL TRAINING BY THE FBI COMPUTER ANALYSIS 18 RESPONSE TEAM HERE IN SAN DIEGO. THEY CAME OUT AND 19 TAUGHT THE CLASS HERE. I RECEIVED NUMEROUS CLASSES 20 AT THE FBI ACADEMY IN QUANTICO, VIRGINIA, BY THE 21 COMPUTER ANALYSIS RESPONSE TEAM. THE COMPUTER 22 TRAINING UNIT, AND THE NATIONAL INFRASTRUCTURE AND 23 PROTECTION CENTER, ALSO KNOWN AS NIPC. 24 I RECEIVED TRAINING BY THE INTERNATIONAL 25 ASSOCIATION OF COMPUTER INVESTIGATIVE SPECIALISTS, 26 THE NATIONAL WHITE COLLAR CRIME CENTER, THE SEARCH 27 GROUP UP IN SACRAMENTO, CALIFORNIA, AND THEN SOME 28 CLASSES HERE BY THE UCSD SUPERCOMPUTER CENTER. 247 1 Q HOW LONG HAVE YOU BEEN IN YOUR CURRENT 2 ASSIGNMENT? 3 A APPROXIMATELY THREE YEARS. 4 Q BEFORE THAT, DID YOU WORK WITH COMPUTERS? 5 A I'VE WORKED WITH COMPUTERS BUT NOT IN THE 6 SAME CAPACITY. 7 Q LET ME DIRECT YOUR ATTENTION BACK TO THE 8 EARLY PART OF FEBRUARY OF THIS YEAR. DID YOU BECOME 9 INVOLVED IN THE EXECUTION OF A SEARCH WARRANT AT 10 MR. WESTERFIELD'S RESIDENCE? 11 A YES, SIR, I DID. 12 Q DID YOU BECOME INVOLVED IN THAT TYPE OF 13 WORK IN YOUR CURRENT CAPACITY? 14 A IT IS A -- IT'S A COMMON ASSIGNMENT FOR US, 15 YES, SIR. 16 Q WHAT TYPE OF SITUATIONS? 17 A WE HAVE DONE COMPUTERS IN ALL SORTS OF 18 SITUATIONS FROM EVERYTHING FROM HOMICIDES TO CHILD 19 ABUSE, TERRORISM, JUST IT RUNS THE WHOLE GAMUT, SIR. 20 Q WHY ARE YOU CALLED IN TO ASSIST THE OTHER 21 INDIVIDUALS? 22 A COMPUTER EVIDENCE IS A DELICATE EVIDENCE. 23 ONE OF THE THINGS THAT I TEACH -- I TEACH IT, YOU 24 KNOW, HERE IN THE COUNTY, THE GUIDELINES THAT HAVE 25 BEEN WRITTEN, THAT COMPUTER EVIDENCE IS FRAGILE. IT 26 CAN BE ALTERED, ACCIDENTALLY. IT CAN BE DAMAGED. 27 AND IF NOT HANDLED PROPERLY, IT CAN ACTUALLY CEASE 28 TO EXIST. UNLIKE REGULAR EVIDENCE. 248 1 Q WHEN WERE YOU NOTIFIED THAT THEY NEEDED 2 YOUR ASSISTANCE TO EXECUTE THE SEARCH WARRANT? 3 A IT WAS THE MONDAY, WOULD BE THE FIRST 4 MONDAY AFTER DANIELLE VAN DAM WAS MISSING. IT WAS 5 THAT EVENING. 6 Q WHERE DID YOU GO? 7 A I WAS REQUESTED TO GO DOWN INITIALLY TO THE 8 NORTHEAST DIVISION SUBSTATION AND THEN FROM THERE 9 WENT TO MR. WESTERFIELD'S HOUSE. 10 Q DO YOU RECALL THE ADDRESS? 11 A NOT OFFHAND, NO, SIR. 12 Q WERE YOU WITH ANY OTHER OFFICERS? 13 A I WAS WITH SERGEANT HOLMES, HOMICIDE 14 TEAM -- 15 THE REPORTER: HOMICIDE TEAM WHAT? 16 THE WITNESS: 4. 17 BY MR. DUSEK: 18 Q ANY OTHER COMPUTER PEOPLE WORKING WITH YOU? 19 A YES, THERE WAS. THERE WAS COMPUTER 20 SPECIALISTS WITH THE FBI, MR. LEE YOUNGFLESH, 21 Y-O-U-N-G-F-L-E-S-H. 22 Q DID YOU TAKE ANY EQUIPMENT WITH YOU? 23 A YES, SIR, I DID. 24 Q WHAT? 25 A I TOOK -- WE TOOK MOBILE OR FIELD IMAGING 26 KITS WHICH ARE MOBILE COMPUTERS. WE ALSO TOOK JUST 27 DIFFERENT PIECES OF MEDIA, SUCH AS HARD DRIVES, THAT 28 WE COULD CREATE WHICH IS CALLED IMAGING. 249 1 Q WHY? 2 A WHAT WE WANTED TO DO IS CREATE AN IMAGE OR 3 A COPY OF THE HARD DRIVES OF MR. WESTERFIELD'S 4 COMPUTERS. 5 Q DID YOU GO THROUGH HIS HOUSE TO SEE IF HE 6 HAD ANY COMPUTERS? 7 A WE WERE DIRECTED TO THE UPSTAIRS INTO AN 8 OFFICE. AND ONCE WE WERE DIRECTED TO THE OFFICE, WE 9 SET OUR EQUIPMENT UP THERE AND DID THE IMAGING IN 10 THERE. 11 Q DESCRIBE FOR US WHAT YOU DID WITH THESE 12 COMPUTERS. 13 A WHAT WE DID WE TOOK THE HARD DRIVES OUT OF 14 THE COMPUTERS. THE HARD DRIVE IS BASICALLY THE 15 MEMORY OF THE COMPUTER WHERE ALL THE DATA IS STORED. 16 WE REMOVED THE HARD DRIVES FROM THE COMPUTERS IN THE 17 OFFICE. WE THEN ATTACHED THOSE HARD DRIVES TO OUR 18 FIELD IMAGING KITS, WE CREATED THE COPY, WE THEN 19 REPLACE THE HARD DRIVE AND MADE SURE THE COMPUTERS 20 STARTED BACK UP. 21 Q WHEN YOU DID THAT, WHAT DID THAT GIVE YOU? 22 A WHAT THAT GAVE US WAS A DUPLICATE OF THE 23 ORIGINAL HARD DRIVE. EVERY PIECE OF DATA THAT WAS 24 ON THE ORIGINAL HARD DRIVE WAS THEN COPIED OVER TO 25 FILES ONTO OUR HARD DRIVE. 26 Q HOW DOES SOMETHING GET ONTO THE HARD DRIVE 27 IN A PERSON'S COMPUTER? 28 A IT IS USUALLY -- IT'S PLACED -- IT'S EITHER 250 1 DIRECTLY PLACED ON THERE FROM, YOU KNOW, BY THE 2 COMPUTER USERS, BY EITHER INSERTING A DISKETTE, A CD 3 ROM, INSTALLING A PROGRAM, GETTING ON THE INTERNET 4 AND DOWNLOADING INFORMATION. BUT IT'S USUALLY AN 5 ACT THAT THE USER HAS TO PERFORM. 6 Q AFTER YOU DID WHAT YOU JUST DESCRIBED, DID 7 YOU DO OTHER STUFF WITH THE COMPUTER? 8 A WITH THOSE COMPUTERS, WHEN I WENT BACK TO 9 THE -- WELL, WE DID THESE COMPUTERS. 10 WE WERE DIRECTED TO A THIRD COMPUTER IN A 11 BEDROOM, WHICH WAS A GATEWAY MINITOWER. WE IMAGED 12 THAT COMPUTER. 13 WE WERE THEN BROUGHT A LAPTOP COMPUTER BY 14 LIEUTENANT COLLINS, WE IMAGED THAT ONE. AND ALSO A 15 PALM PILOT AND WE IMAGED THAT. 16 Q WHEN YOU COMPLETED THAT WORK, WHAT DID YOU 17 DO? 18 A IT'S OUR HABIT AND CUSTOM ON WHENEVER WE'RE 19 DOING IMAGINING TO LOOK AROUND THE SCENE TO SEE IF 20 THERE IS ANYTHING THAT WOULD BE HELPFUL, SUCH AS 21 THESE COMPUTERS I BELIEVE THEY HAD DIFFERENT DEVICES 22 HOOKED UP TO THEM. WE USUALLY LOOK FOR OWNER 23 MANUALS, USER MANUALS, BOOKS, THINGS THAT WOULD HELP 24 US IN, LATER ON IN OUR ANALYSIS. 25 MR. YOUNGFLESH FOUND AN ENVELOPE ON A 26 BOOKCASE THAT WAS STICKING UP BEHIND SOME BOOKS. 27 IT'S COMMON PRACTICE FOR PEOPLE TO PUT EVERYTHING 28 FROM COMPUTER PASSWORDS, MANUALS, THINGS THAT WE 251 1 FIND USEFUL IN OUR EXAMINATION IN THESE TYPE OF 2 ENVELOPES LIKE THAT. 3 MR. YOUNGFLESH OPENED THE ENVELOPE AND 4 FOUND -- 5 THE COURT: YOU'RE GOING TO HAVE TO SLOW DOWN A 6 LITTLE BIT. 7 THE WITNESS: I'M SORRY. 8 THE REPORTER: "MR. YOUNGFLESH"? 9 THE WITNESS: MR. YOUNGFLESH FOUND AN ENVELOPE 10 ON A BOOKCASE BEHIND SOME BOOKS, IT WAS STICKING UP, 11 AND YOU COULD SEE THE TOP QUARTER, I WOULD SAY, OF 12 THIS ENVELOPE. INSIDE THE ENVELOPE WERE THREE ZIP 13 DISKS AND THREE CD ROMS. 14 BY MR. DUSEK: 15 Q WHAT'S A ZIP DISK? 16 A A ZIP DISK IS -- IT'S ABOUT TWO-AND-A-HALF 17 INCHES BY TWO-AND-A-HALF INCHES. IT LOOKS LIKE, IF 18 YOU'RE FAMILIAR WITH COMPUTERS, A FLOPPY DISK WHICH 19 IS SOMETHING THAT INFORMATION IS STORED ON REMOTELY, 20 SUCH AS YOU CAN TAKE THIS DISK, YOU CAN PUT IT INTO 21 THE COMPUTER, EITHER TRANSFER FILES TO THIS DISK, 22 AND STORE INFORMATION ON IT, OR TAKE INFORMATION OFF 23 IT AND LOOK AT IT. 24 BUT IT'S ALSO A WAY THAT YOU CAN MOVE 25 INFORMATION FROM ONE PLACE TO ANOTHER. IT'S ALSO A 26 WAY THAT YOU CAN HAVE INFORMATION AVAILABLE WITHOUT 27 LEAVING IT ON YOUR COMPUTER. 28 Q AND YOU ALSO SAID A CD ROM WAS FOUND OR A 252 1 COUPLE OF THEM? 2 A YES, SIR. THERE WERE SEVERAL, I BELIEVE 3 THREE CD ROMS THAT WE IDENTIFIED. 4 Q LET'S ASSUME I KNOW NOTHING ABOUT 5 COMPUTERS. WHAT IS A CD ROM? 6 A A CD ROM IS A -- IT'S A SMALL PLATTER, IT 7 LOOKS -- IT'S MADE OF PLASTIC. INSIDE THE PLASTIC 8 IS A COAT. INFORMATION IS STORED ON THIS. IN THE 9 COMPUTER, THERE IS A DEVICE CALLED THE CD ROM READER 10 WHICH HAS A LASER IN IT. THIS LASER ACTUALLY GOES 11 AND READS THE MARKINGS INSIDE THIS DISKETTE OR THIS 12 PLATTER. THE PLATTER SPINS AROUND. AS IT SPINS 13 AROUND, THE DATA, THE LASER READS THE DATA AND THEN 14 THE COMPUTER INTERPRETS IT AND SEES THE INFORMATION. 15 Q ONCE YOU COMPLETED THOSE EFFORTS, WHAT NEXT 16 DID YOU DO ON THAT OCCASION? 17 A WE, BECAUSE WE WERE CALLED TO THE SCENE TO 18 JUST DO THE IMAGING, WHEN WE FOUND THE DISKS, WE DID 19 WHAT IS CALLED A PREVIEW WHERE WE CAN LOOK AT THE 20 ZIP DISKS AND THE CD ROM WITHOUT DOING ANY WRITING 21 TO THEM, WHICH WOULD ALTER IT. WE SCANNED THROUGH 22 IT, AND MR. YOUNGFLESH SAW WHAT HE FELT -- WHAT HE 23 REFERRED TO AS QUESTIONABLE IMAGES. 24 Q WHICH MEANS WHAT? 25 A WHICH MEANS IT LOOKS LIKE IT WAS -- IT HAD 26 DEPICTIONS OF PEOPLE UNDER THE AGE OF 18 THAT WERE 27 EITHER CLOTHED OR PARTIALLY -- I'M SORRY. NAKED OR 28 PARTIALLY NAKED. AND WHO WERE EITHER ENGAGED IN 253 1 SEXUAL ACTS OR IN SEXUAL POSES, THAT SORT OF THING. 2 Q WHEN YOU GOT THAT INFORMATION, WHAT DID YOU 3 DO? 4 A WHEN WE GOT THAT INFORMATION, IT WAS OUR 5 BELIEF THAT IT WAS A POSSIBLY IT WAS A VIOLATION OF 6 311 OF THE PENAL CODE. RATHER THAN CONTINUE WITH 7 THE EXAMINATION, WE SET THOSE ASIDE AND INFORMED I 8 BELIEVE IT WAS DETECTIVE HERGENROEATHER THAT THESE 9 WERE PROBABLY CONTRABAND AND SHOULD PROBABLY BE 10 SEIZED. 11 Q WERE THEY? 12 A YES, THEY WERE. 13 Q WAS ANYTHING ELSE TAKEN FROM HIS HOME 14 REGARDING THE COMPUTERS AT THAT TIME? 15 A TO MY KNOWLEDGE, ALL THAT WERE SEIZED 16 COMPUTER-RELATED WERE THOSE -- THE IMAGES WE MADE, 17 BUT AGAIN, WE LEFT THE ORIGINAL HARD DRIVES, THE 18 ORIGINAL COMPUTERS AT THE SCENE. 19 WE TOOK OUR IMAGES WITH US BACK TO THE 20 LABORATORY, AND I BELIEVE IT WAS THE ZIP DISKS AND 21 THE CD'S WERE TAKEN BACK BY THE SAN DIEGO P.D. 22 Q THE IMAGES THAT YOU TOOK, WERE THEY 23 REVIEWED? 24 A YES, THEY WERE. 25 Q DID YOU FIND ANYTHING OF A SEXUAL NATURE IN 26 WHAT YOU REVIEWED? 27 A YES, SIR, WE DID. 28 Q DID YOU FIND ANY OUTLINE OR ORGANIZATIONAL 254 1 SYSTEM IN MR. WESTERFIELD'S RESIDENCE? 2 A I'M SORRY? 3 Q REGARDING THE COMPUTERS. 4 A THE COMPUTERS, EVERYTHING WAS VERY WELL OR 5 VERY HIGHLY ORGANIZED. THE WAY THAT A COMPUTER IS 6 ORGANIZED, WOULD BE LIKE A FILE CABINET. YOU HAVE 7 FOLDERS OR DIRECTORIES OR FILE DRAWERS WHICH WOULD 8 BE CONSIDERED A FOLDER OR DIRECTORY. INSIDE EACH OF 9 THOSE FILES OR DRAWERS ARE OTHER FILES OR FOLDERS. 10 YOU COULD HAVE INSIDE THOSE FOLDERS ADDITIONAL 11 FOLDERS. 12 THAT WAY YOU CAN TAKE INFORMATION AND HAVE 13 IT CATEGORIZED DOWN FOR LIKE PICTURES, YOU COULD 14 HAVE A VERY BROAD SUBJECT SUCH AS PICTURES. THEN IN 15 THAT PICTURE FOLDER, YOU CAN HAVE FOLDERS UNDERNEATH 16 THAT OR DIVIDED UP INTO ADDITIONAL AREAS OR EVEN OF 17 STORAGE, SO YOU COULD HAVE LITERALLY HUNDREDS OF 18 FILE FOLDERS THAT WOULD CONTAIN FILES OR PICTURES. 19 Q HE HAD DONE THAT IN THIS CASE? 20 A YES, SIR. 21 Q HAD HE LABELED SOME OF HIS FILE FOLDERS? 22 A YES, HE HAD. 23 Q IN RELATION TO WHAT WE'RE TALKING ABOUT 24 HERE TODAY, WHAT WERE SOME OF THE LABELS? 25 A SOME OF THE LABELS WERE "TEEN," "BIG RED," 26 THERE WERE "FARM ONE." THOSE WERE THE ONES THAT THE 27 FILES IN QUESTION TODAY. BUT THERE WERE HUNDREDS OF 28 OTHER FILE NAMES OR FOLDER NAMES. 255 1 Q ANY OF THEM SPECIFICALLY RELATING TO SEX? 2 A THERE WAS ONE THAT WAS LABELED "BLOW JOB" 3 OR "BJ." I'M SORRY. "BJ." IT WAS UNDER -- I 4 BELIEVE IT WAS UNDER .JPG, WHICH IS A FILE 5 DESIGNATION FOR DIGITAL PHOTOS. AND INSIDE THAT -- 6 INSIDE THAT DIRECTORY WERE NUMEROUS PICTURES THAT 7 DEPICTED ORAL SEX. 8 Q HOW MANY IMAGES WERE YOU ABLE TO RETRIEVE? 9 A FROM AN OVERALL, THERE WERE THOUSANDS OF 10 PICTURES. BUT FROM A QUESTIONABLE STANDPOINT, WE 11 RETRIEVED APPROXIMATELY, I WOULD SAY, LESS THAN A 12 HUNDRED. 13 Q AND DID YOU PROVIDE ME, AND WE HAVE BEEN 14 ABLE TO SHOW COUNSEL, SOME OF THOSE IMAGINES THAT 15 YOU BROUGHT? 16 A YES, I DID. 17 Q I'VE HAD MARKED AS PEOPLE'S EXHIBIT 4 18 MULTI-PAGE COLOR DOCUMENTS. IT APPEARS TO CONTAIN 19 FOUR PHOTOGRAPHS ON EACH PAGE. 20 DO YOU RECOGNIZE WHAT WE HAVE DEPICTED 21 THERE? 22 A YES, I DO. 23 Q BASICALLY -- 24 MR. BOYCE: YOUR HONOR, MAY I APPROACH? 25 THE COURT: OF COURSE. 26 BY MR. DUSEK: 27 Q THERE APPEAR TO BE HUMANS INVOLVED IN THESE 28 PHOTOGRAPHS? 256 1 A YES, SIR, THERE ARE. 2 Q MALE OR FEMALE? 3 A THEY ARE FEMALE. 4 Q THEY APPEAR TO BE YOUNG? 5 A YES, SIR. 6 Q DO THEY APPEAR TO BE ENGAGED IN SEXUAL 7 ACTIVITIES? 8 A THEY APPEAR TO BE ENGAGED IN SEXUAL 9 ACTIVITY OR IN SEXUAL POSES. 10 Q WITH WHAT? 11 A ON THE FIRST PAGE IT APPEARS TO BE WITH 12 ANIMALS. 13 Q BASICALLY, THE FIRST FOUR PAGES THEY ALL 14 APPEAR TO BE ANIMALS? 15 A THE FIRST FOUR PAGES APPEAR TO BE ANIMALS, 16 YES, SIR. 17 Q WE GO DOWN BELOW THAT, WHAT DO WE HAVE ON 18 THE REMAINING PAGES? 19 A THE REMAINING PAGES ARE PICTURES OF WHAT 20 APPEAR TO BE PEOPLE OR GIRLS UNDER THE AGE OF 18. 21 THEY APPEAR TO BE IN SEXUALLY EXPLICIT POSES. 22 Q THEY ALSO APPEAR TO BE ENGAGED IN SEXUAL 23 ACTS? 24 A YES, SIR. 25 Q I'VE ALSO HAD MARKED AS PEOPLE'S EXHIBIT 5 26 WHAT APPEARS TO BE A MULTI-PAGE DOCUMENT. IT 27 APPEARS TO BE DRAWINGS, CARTOON OR ANIMATIONS, IF 28 YOU WILL, WITH DIALOGUE INVOLVED. 257 1 DO YOU RECOGNIZE THIS? 2 A YES, SIR, I DO. 3 Q WHAT IS THIS? 4 A THESE ARE ANIMATION OR DIGITAL PHOTOS, OR 5 ANIMATION ACTUALLY, AND THEY APPEAR TO BE A SERIES 6 OF PHOTOGRAPHS, OR OF ANIMATIONS. 7 Q IS THERE A DIALOGUE THAT APPEARS TO DEPICT 8 THE TWO INDIVIDUALS TALKING? 9 A YES, SIR, THERE IS. 10 Q CAN YOU DESCRIBE THE TWO INDIVIDUALS JUST 11 GENERICALLY. 12 A GENERICALLY, BY LOOKING AT THE PICTURE, IT 13 APPEARS TO BE A YOUNG FEMALE. AS YOU GO THROUGH THE 14 SERIES, IT APPEARS THE FEMALE IS BOUND BY ROPE, WITH 15 HER HANDS APPARENTLY BEHIND HER BACK. 16 LOOKING, AS YOU GO THROUGH THE SERIES, THE 17 FEMALE HAS NOW GOT HER HANDS ABOVE HER HEAD, APPEARS 18 TO BE TIED BY A OR BOUND BY A LEATHER STRAP OF SOME 19 SORT. PERSON'S BEING PULLED. HER DRESS IS BEING 20 PULLED UP. SHE APPEARS TO BE FIGHTING, TELLING A 21 PERSON NOT TO TOUCH HER, ASKING HER NOT TO RAPE HER. 22 THE OTHER DIALOGUE THE PERSON IS -- APPEARS 23 TO BE MAKING STATEMENTS OF A SEXUALLY EXPLICIT 24 NATURE REGARDING WANTING TO HAVE FORCEFUL SEX WITH 25 THE PERSON. 26 GOING THROUGH, THE PERSON APPEARS TO BE 27 HAVING VAGINAL INTERCOURSE. CONTINUING THROUGH, THE 28 PERSON HAS HAD THE FEMALE OR THE GIRL IS HAVING ORAL 258 1 SEX WITH THE MAN. THEN IT CONTINUES ON. THE TWO 2 SERIES ARE VERY SIMILAR. 3 THE COURT: NEXT QUESTION. 4 MR. DUSEK: THANK YOU, SIR. 5 BY MR. DUSEK: 6 Q DO YOU RECALL HOW THIS WAS LABELED IN HIS 7 COMPUTER? 8 A THESE WERE LABELED UNDER THE -- IT APPEARS 9 THAT THERE WERE TWO DEFINITE SERIES THAT WERE 10 LABELED 01BR AND THEN 02BR, THAT WAS IN THE 11 DIRECTORY OF "BIG RED." 12 THE OTHER ONE WHICH WAS 01DB THEN 02DB AND 13 SO ON WAS LABELED UNDER, IF I MAY LOOK AT MY NOTES. 14 THEY'RE BOTH IN WHAT'S CALLED SUBDIRECTORIES, GOING 15 BACK TO HOW YOU ASKED HOW IT WAS CATEGORIZED. IT 16 WAS THE MAIN FOLDER OF "SWIM," UNDER "SWIM" A SECOND 17 FOLDER THAT WAS "CARTOONS," AND THEN UNDER 18 "CARTOONS" WAS THE DIRECTORY OR FOLDER OF "BIG RED," 19 WHICH HAD THE IMAGES 1BR, 2BR, ET CETERA. 20 IT ALSO HAD A SECOND FOLDER IN IT THAT WAS 21 "DEEP BLACK," WHICH HAD THE SECOND SERIES. 22 Q DID YOU FIND ANY PHOTOGRAPHS IN HIS 23 COMPUTERS RELATING TO REAL PEOPLE, YOUNG GIRLS? 24 A YES, SIR. 25 Q WHO WERE THEY? 26 A I FOUND PICTURES OF A PERSON IDENTIFIED 27 APPEARED TO BE A FEMALE BY THE NAME OF DANIELLE THAT 28 BY LOOKING THROUGH SOME OF THE CORRESPONDENCE 259 1 APPEARED TO BE THE DAUGHTER OF A GIRLFRIEND. 2 Q HOW OLD WAS THE DAUGHTER? 3 A THE DAUGHTER APPEARED TO ME TO BE IN HER 4 EARLY TO MID TEENS. 5 Q HOW WAS SHE POSITIONED IN THE PHOTOGRAPHS? 6 A THERE WAS ONE PHOTOGRAPH I FOUND OF HER 7 THAT SHE WAS POSING WITH I BELIEVE HER MOTHER. AND 8 THEN THERE WERE SEVERAL OTHER PHOTOGRAPHS WHERE SHE 9 WAS IN A BIKINI AND WAS SITTING ON THE EDGE OF A 10 JACUZZI OR PARTIALLY IN THE JACUZZI, EXCUSE ME. AND 11 THEN THERE WERE SEVERAL PHOTOS OF THIS GIRL IN A 12 BIKINI THAT APPEARED TO BE ON A LOUNGE BY THE -- BY 13 A POOL AREA IN A BIKINI WITH A TOWEL OVER HER FACE 14 SO JUST HER CHEST AND BELOW WERE SEEN. 15 Q DO YOU RECALL HOW HER LEGS WERE POSITIONED? 16 A IN ONE OF THE PHOTOS -- IN ALL OF THE 17 PHOTOS, HER LEGS WERE SPREAD LIKE IN A "V," LIKE IN 18 A V-SHAPE. AND IN ONE OF THE PHOTOS, THE PHOTO WAS 19 ACTUALLY TAKEN RIGHT I GUESS DOWN THE MIDDLE OF THE 20 "V," IF YOU WILL. 21 Q STANDING AT THE FOOT AREA LOOKING TOWARDS 22 THE HEAD? 23 A YES. 24 MR. DUSEK: THANK YOU. NOTHING FURTHER. 25 THE COURT: COUNSEL, ANY QUESTIONS? 26 ///// 27 ///// 28 ///// 260 1 CROSS-EXAMINATION 2 BY MR. BOYCE: 3 Q BEFORE TESTIFYING TODAY, DID YOU REVIEW ANY 4 DOCUMENTS? 5 A I REVIEWED THE PHOTOS. 6 Q DID YOU REVIEW ANY NOTES? 7 A I CREATED SOME NOTES. I -- I'M SORRY, SIR. 8 PART OF MY TESTIMONY OVER THE WEEKEND, I WENT 9 THROUGH THE COMPUTER -- I DIDN'T TAKE ANY NOTES, PER 10 SE. I SORT OF DRAFTED IT OUT. WHAT I DID IS THE 11 IMAGING ON THE COMPUTER, I WENT THROUGH MY COMPUTER 12 AND THE EVIDENCE FILES THAT HAD THE IMAGES AND HAD 13 INFORMATION THAT I REVIEWED AND THEN CREATED SOME 14 FIGURES FROM THAT. 15 Q YOU REVIEWED SOME NOTES, THOUGH; IS THAT 16 CORRECT? 17 A YES, SIR. 18 Q WHOSE NOTES DID YOU REVIEW? 19 A THOSE ARE MINE. 20 Q AND THOSE WERE NOTES THAT YOU -- WHEN DID 21 YOU TAKE THOSE NOTES? 22 A PROBABLY ABOUT 10:30 ON SATURDAY. 23 Q DID YOU CREATE ANY REPORTS IN THIS CASE? 24 A NO, NOT YET. 25 Q YOU'VE WRITTEN NO REPORTS? 26 A ACTUALLY, WE DID DO ONE PRELIMINARY REPORT, 27 YES, SIR. 28 Q WHEN YOU SAY "WE," WHO DO YOU MEAN BY "WE"? 261 1 A THERE ARE SEVERAL PEOPLE IN THE LABORATORY 2 THAT DID THE -- MR. YOUNGFLESH AND OTHERS THAT 3 EXAMINED SOME OF THE COMPUTER EVIDENCE. 4 Q YOU PERSONALLY, DID YOU DO ANY REPORTS? 5 A I DID ONE, YES, SIR. 6 Q WHEN DID YOU DO THAT REPORT? 7 A I DID THAT REPORT PROBABLY ABOUT A MONTH 8 AGO. 9 Q THAT REPORT WAS DONE FROM YOUR NOTES; IS 10 THAT CORRECT? 11 A NO, SIR. THERE WEREN'T ANY NOTES. IT WAS 12 DONE, THE REPORT WAS DONE DIRECTLY. ACTUALLY TO BE 13 MORE ACCURATE, IT WAS ACTUALLY A DRAFT, NOT A FINAL 14 COPY. 15 Q THE NOTES THAT YOU HAVE DESCRIBED, DO YOU 16 HAVE THOSE WITH YOU TODAY? 17 A NO, SIR, I DO NOT. 18 Q WHERE ARE THEY? 19 A THOSE ARE BACK AT THE LAB. 20 MR. BOYCE: I REQUEST THE COURT ORDER THAT WE BE 21 PROVIDED WITH A COPY OF THOSE NOTES IN ORDER TO 22 CROSS-EXAMINE THIS WITNESS, YOUR HONOR. 23 THE COURT: YOU'RE ENTITLED TO THEM. 24 GET THEM OVER HERE. PROCEED. 25 BY MR. BOYCE: 26 Q DO YOU HAVE ANY NOTES WITH YOU ON THE 27 WITNESS STAND? 28 A YES, SIR, I DO. 262 1 MR. BOYCE: I WOULD REQUEST A COPY OF THOSE 2 NOTES. 3 THE COURT: YOU'RE CERTAINLY ENTITLED TO SEE THE 4 NOTES. WHY DON'T YOU COME UP HERE AND TAKE A LOOK 5 AT THE NOTES. WE'LL GO OFF THE RECORD WHILE YOU DO 6 THAT. 7 (RECESS.) 8 THE COURT: LET'S GO BACK ON THE RECORD. 9 I'D ASK THE DISTRICT ATTORNEY TO ASK HIS 10 WITNESSES TO BRING WITH THEM ANY NOTES THEY MAY HAVE 11 REVIEWED PRIOR TO TESTIMONY. DEFENSE COUNSEL HAS 12 ASKED EVERY WITNESS FOR COPIES OF THOSE NOTES. SO 13 IF THEY CAME WITH THE NOTES, IT WOULD BE HELPFUL. 14 WHAT -- YOU HAD A CONCERN WHILE WE WERE OFF 15 THE RECORD AND I TOLD YOU YOU'D BE ABLE TO VOICE IT 16 WHEN WE'RE ON THE RECORD. IF YOU STILL WISH TO 17 VOICE IT, THIS IS THE TIME. 18 MR. BOYCE: YOUR HONOR, THERE ARE AT LEAST TWO 19 PAGES REGARDING DOWNLOAD FROM A DIRECTORY CONTAINING 20 CARTOONS THAT THE WITNESS HAS REVIEWED AND WE WOULD 21 REQUEST COPIES OF THOSE. 22 ALSO, THERE'S TWO PAGES OF HANDWRITTEN 23 NOTES THAT WE HAVE NOT SEEN THAT WE WOULD REQUEST 24 COPIES OF. 25 ALSO -- ALSO, THERE ARE PORTIONS OF THE 26 BINDERS THAT HE HAS IN FRONT OF HIM THAT WE HAVE NOT 27 SEEN, INCLUDING THE PHOTOS OF DANIELLE, WHO IS THE 28 DAUGHTER OF MR. WESTERFIELD'S GIRLFRIEND THAT WAS 263 1 REFERRED TO, AND THERE'S SEVERAL FAMILY PHOTOS IN 2 THERE THAT I WOULD LIKE TO DISCUSS WITH THIS WITNESS 3 DURING HIS EXAMINATION. SO WE WOULD LIKE COPIES OF 4 ALL THOSE. 5 THE COURT: WELL, COUNSEL, I'M SURE THAT THE 6 DISTRICT ATTORNEY WILL ACCOMMODATE YOU IN DUE 7 COURSE. HERE WE ARE TEN DAYS INTO THIS CASE, I'M 8 SURE THEY HAVE TURNED OVER THOUSANDS OF PAGES. AND 9 THEY'LL TURN OVER HUNDREDS OR THOUSANDS OF PAGES AS 10 SOON AS POSSIBLE. 11 SO PLEASE PROCEED WITH YOUR QUESTIONING OF 12 THIS WITNESS. IF WE TAKE A BREAK AND YOU WANT TO 13 LOOK AT HIS NOTEBOOK, I THINK THAT WOULD BE 14 APPROPRIATE. 15 MR. BOYCE: FOR THE PURPOSES OF THE PRELIMINARY 16 HEARING, I WOULD LIKE -- THERE IS ABOUT SIX 17 PHOTOGRAPHS OF THE PERSON REFERRED TO AS DANIELLE, 18 THE GIRLFRIEND'S DAUGHTER, WHO WHICH I WOULD LIKE 19 MARKED AS AN EXHIBIT FOR PURPOSES OF PRELIMINARY 20 HEARING. WE WOULD HAVE NO OBJECTION TO STIPULATING 21 TO A COPY OF THOSE PHOTOS BEING USED IN PLACE OF THE 22 ORIGINALS. 23 THE COURT: ANY OBJECTION TO THAT, COUNSEL? 24 MR. DUSEK: NO. 25 THE COURT: SO ORDERED. WE'LL GET TO THEM. I'M 26 GOING TO LET YOU DO THAT. 27 LET'S GET SOME QUESTIONING OF THIS WITNESS. 28 AND MAYBE WHEN IT'S TIME TO TAKE A BREAK, THEN YOU 264 1 CAN SINGLE THEM OUT. IF YOU HAVE SPECIFIC QUESTIONS 2 ABOUT THOSE PICTURES, I'M GOING TO LET YOU LOOK AT 3 THE PICTURES AND ASK YOU QUESTIONS. I'M NOT GOING 4 TO PRECLUDE YOU FROM DOING THAT. YOU MAY HAVE OR 5 YOU MAY NOT HAVE OTHER QUESTIONS. I DON'T KNOW. 6 I'D ASK THAT YOU ASK WHATEVER OTHER QUESTIONS YOU 7 MIGHT HAVE AND THEN WE'LL TAKE UP THE PICTURES AT 8 THE END. IF THAT'S OKAY. 9 MR. BOYCE: THANK YOU, YOUR HONOR. 10 BY MR. BOYCE: 11 Q IN YOUR EXPERIENCE, ALL PEOPLE, INCLUDING 12 CHILDREN, DEVELOP AT DIFFERENT RATES, DON'T THEY? 13 A YES, SIR. 14 Q YOU DON'T HAVE ANY TRAINING AS A 15 PEDIATRICIAN, DO YOU? 16 A NO, SIR. 17 Q YOU DON'T HAVE ANY MEDICAL TRAINING, DO 18 YOU? 19 A YES, I DO. 20 Q WHAT TYPE OF MEDICAL TRAINING DO YOU HAVE? 21 A PRIOR TO MY BEING HIRED AS A SAN DIEGO 22 POLICE OFFICER, I WAS A MOBILE INTENSIVE CARE 23 PARAMEDIC FOR THE COMPANY NAMED MEDIVAC, WHICH I 24 THINK IS DEFUNCT NOW. 25 BUT I WAS TRAINED IN -- I ACTUALLY RECEIVED 26 MY PARAMEDIC TRAINING AT STANFORD UNIVERSITY 27 HOSPITAL IN 1979, AND THEN WORKED AS A PARAMEDIC IN 28 SANTA CLARA COUNTY AND IN SAN DIEGO COUNTY FOR 265 1 SEVERAL YEARS. 2 PART OF THE TRAINING INCLUDED OBVIOUSLY 3 PEDIATRIC EMERGENCIES, DEALING WITH CHILDREN, 4 OBVIOUSLY DEALING WITH CHILDREN IDENTIFYING EITHER A 5 CHILD OR THAT SORT OF THING WAS IMPORTANT DUE TO THE 6 FACT THAT NUMEROUS DRUGS OR THE DOSAGES ARE 7 DIFFERENT FOR CHILDREN THAN FROM ADULTS AND THAT 8 SORT OF THING. 9 Q DO YOU HAVE ANY CLASSES -- DID YOU TAKE ANY 10 CLASSES IN CHILD DEVELOPMENT? 11 A NO, SIR, I DID NOT. 12 Q SOME PEOPLE LOOK OLDER THAN OTHERS AT 13 DIFFERENT AGES, DON'T THEY? 14 A AND SOME LOOK YOUNGER, YES, SIR. 15 Q THAT'S CORRECT. 16 AND, IN EFFECT, PUBERTY IS A MOVING TARGET, 17 ISN'T IT? 18 A YES, SIR. 19 Q SO SOME PEOPLE, SOME PEOPLE HIT PUBERTY AT 20 A YOUNGER AGE THAN, SAY, SOME OTHERS? 21 A YES, SIR, THAT IS CORRECT. 22 Q FOR EXAMPLE, PUBIC HAIR IS NOT NECESSARILY 23 AN INDICATION OF AGE, IS IT? 24 A NO, SIR, IT IS NOT. 25 Q AND BREAST DEVELOPMENT IS NOT NECESSARILY 26 AN INDICATION OF AGE, IS IT? 27 A AGAIN, NO, SIR. 28 Q IN FACT, HIGHLY ATHLETIC JUVENILES AND 266 1 ADULTS HAVE SMALLER BREASTS? THAT AFFECTS BREAST 2 DEVELOPMENT, DOESN'T IT? 3 A CORRECT. 4 MR. DUSEK: OBJECTION; NO FOUNDATION. 5 THE COURT: OVERRULED. 6 THE WITNESS: YES. 7 BY MR. BOYCE: 8 Q AND ATHLETIC TEENAGERS, YOUNG ADULTS, ALSO 9 HAVE LESS BODY FAT, DON'T THEY? 10 A YES, SIR. 11 Q THEY MAY APPEAR YOUNGER, DON'T THEY? 12 A THEY MAY, YES, SIR. 13 Q SO THE PRESENCE OR ABSENCE OF BREASTS OR 14 PUBIC HAIR DOESN'T NECESSARILY INDICATE A PERSON'S 15 AGE, DOES IT? 16 A THAT IS CORRECT. 17 Q AND YOU'VE HAD QUITE A BIT OF EXPERIENCE 18 WITH COMPUTERS, HAVEN'T YOU? 19 A YES, SIR. 20 Q AND SURFING ON THE INTERNET? 21 A YES. 22 Q AND SURFING PORN SITES, HAVEN'T YOU? 23 A UNFORTUNATELY, YES, SIR. 24 Q AND PEOPLE THAT ARE -- THE PHOTOS THAT YOU 25 HAVE IN THAT BINDER ARE EASILY ACCESSIBLE ON THE 26 INTERNET, AREN'T THEY? 27 A YES, SIR. 28 Q PEOPLE IN THOSE PHOTOS ARE SELECTED 267 1 OFTENTIMES BECAUSE THEY LOOK YOUNG, AREN'T THEY? 2 MR. DUSEK: OBJECTION; NO FOUNDATION. 3 THE COURT: OVERRULED. 4 BY MR. BOYCE: 5 Q BASED UPON YOUR TRAINING AND EXPERIENCE -- 6 THE COURT: OVERRULED. 7 BY MR. BOYCE: 8 Q PEOPLE THAT ARE SHOWN ON THE INTERNET ARE 9 SOMETIMES SELECTED BECAUSE THEY LOOK YOUNGER THAN 10 THEY ARE? 11 A I DON'T KNOW WHY THEY'RE SELECTED. 12 Q WHENEVER YOU ENTER AN INTERNET SITE THAT 13 DISPLAYS PHOTOS OF NUDE PEOPLE THERE'S ALWAYS A 14 DISCLAIMER ON TOP OF THE COMPUTER, ISN'T THERE? 15 A NO, SIR, THERE ISN'T. 16 Q THERE'S OFTENTIMES A DISCLAIMER THAT SAYS 17 THE PEOPLE THAT ARE SHOWN IN THESE PHOTOS ARE OVER 18 18? 19 A MY EXPERIENCE BECAUSE AS PART OF OUR JOB, 20 WE COME ACROSS INTERNET SITES, WE FREQUENTLY ARE 21 VISITING INTERNET SITES, LIKE I SAID EARLIER, MORE 22 THAN WE LIKE TO THE PORN SITES, AND IT'S MY 23 EXPERIENCE THAT THE MAJORITY DON'T HAVE THE 24 DISCLAIMERS. 25 Q HAVE YOU SEEN THEM WITH THE DISCLAIMERS? 26 A I'VE SEEN A FEW WITH THE DISCLAIMERS. 27 Q AND THE ONES WITH THE DISCLAIMERS ARE JUST 28 AS ACCESSIBLE ON THE INTERNET AS THE ONES WITHOUT 268 1 THE DISCLAIMERS? 2 A THERE'S A LOT MORE WITHOUT THE DISCLAIMER, 3 SIR. 4 Q BUT THEY'RE EQUALLY ACCESSIBLE? 5 A I'M SORRY. YES, SIR, YOU'RE RIGHT. 6 Q THE PHOTOS THAT YOU'VE REFERRED TO THAT 7 HAVE BEEN MARKED AS EXHIBITS, YOU DON'T KNOW WHO 8 DOWNLOADED THOSE PHOTOS ONTO EITHER THE ZIP DRIVES 9 OR CD ROMS, DO YOU? 10 A NO, SIR, I DON'T. 11 Q YOU DON'T KNOW WHETHER IT'S 12 MR. WESTERFIELD'S 18-YEAR-OLD SON OR SOMEONE THAT 13 WAS A GUEST IN THE HOUSE OR WAS STAYING WITH 14 MR. WESTERFIELD AT ANY TIME, DO YOU? 15 A I WASN'T PRESENT AT THE TIME, NO, SIR. 16 Q THE PHOTOGRAPHS -- YOU FOUND THREE CD ROMS 17 AND THREE ZIP DRIVES; IS THAT CORRECT? 18 A THAT IS CORRECT, YES, SIR. 19 Q YOU PICKED UP THOSE AND TOOK THEM INTO 20 EVIDENCE, DIDN'T YOU? 21 A WE TURN THOSE OVER TO THE SAN DIEGO POLICE 22 DETECTIVES AT THE SCENE. 23 Q DID YOU ASK THAT THEY BE FINGERPRINTED? 24 A NO, SIR, I DID NOT. 25 Q YOU DON'T KNOW -- TO YOUR KNOWLEDGE, WERE 26 THEY FINGERPRINTED? 27 A I DON'T KNOW. 28 Q IN OTHER WORDS, EXAMINED FOR LATENT PRINTS? 269 1 A RIGHT. I DON'T KNOW WHAT THAT IS. I DON'T 2 KNOW IF THEY WERE OR NOT. 3 MR. BOYCE: MAY I APPROACH THE WITNESS, YOUR 4 HONOR? 5 THE COURT: OF COURSE. 6 WE'RE GOING TO LOOK AT THE PICTURES OF THE 7 FRIEND? 8 MR. BOYCE: YES. 9 THE COURT: OFF THE RECORD. LET'S NOT ASK 10 QUESTIONS UNTIL WE GET ON THE RECORD, PLEASE. 11 (RECESS.) 12 MR. BOYCE: BACK ON THE RECORD, YOUR HONOR? 13 THE COURT: BACK ON THE RECORD. 14 PLEASE PUT THOSE -- ARE YOU GOING TO ASK 15 QUESTIONS ABOUT THE PICTURES THAT ARE FACE UP OR -- 16 MR. BOYCE: I'M JUST ASKING ABOUT THE EXHIBITS, 17 YOUR HONOR. 18 THE COURT: OKAY. GO AHEAD. 19 BY MR. BOYCE: 20 Q ARE YOU FAMILIAR WITH MORPHING? 21 A YES, SIR, I AM. 22 Q WHAT IS MORPHING? 23 A MORPHING IS A DIGITALLY ALTERING OR BY 24 USING A COMPUTER PROGRAM TO ALTER THE APPEARANCE OF 25 A PROGRAM. WE TYPICALLY SEE SOMEBODY WILL TAKE THE 26 HEAD OFF OF ONE PERSON AND THEN PUT IT OVER THE 27 PICTURE OF A HEAD OF ANOTHER PERSON. 28 Q IN OTHER WORDS, YOU CAN TAKE A HEAD, SAY, 270 1 OF A WHAT APPEARS TO BE A VERY YOUNG PERSON AND PUT 2 IT ON THE BODY OF SOMEBODY THAT APPEARS OLDER? 3 A THAT IS POSSIBLE. 4 Q AND HOW DO YOU TELL WHETHER SOMETHING HAS 5 BEEN MORPHED OR NOT? 6 A YOU CAN SEE THE OUTLINES OF WHERE THE CUT 7 IS. WE SEE IT QUITE FREQUENTLY. AND THOSE PICTURES 8 FOR THE PURPOSE OF THIS SORT OF THING, WE JUST 9 BYPASS BECAUSE FOR THAT VERY REASON THAT YOU BRING 10 UP. USUALLY, WE'LL SEE AN OUTLINE. THERE WILL BE 11 DIFFERENCES IN TONE, IN GRAIN, AND YOU'LL JUST SEE 12 THAT IT JUST DOESN'T BELONG. 13 Q YOU SAY "USUALLY." SOMETIMES YOU DON'T, 14 THOUGH? 15 A I HAVE YET TO SEE OR HAVE POINTED OUT TO ME 16 A PICTURE THAT WE HAVE IDENTIFIED AS QUESTIONABLE IN 17 NATURE TO BE ONE THAT WAS MORPHED. 18 Q WELL, IF YOU DIDN'T SEE THE OUTLINE, YOU 19 WOULDN'T KNOW IT, THOUGH, WOULD YOU? 20 A WHAT I'M SAYING IS I HAVEN'T SEEN A 21 SITUATION WHERE I HAVE BEEN TOLD YOU ARE WRONG, THIS 22 PICTURE WAS MORPHED. 23 Q HAVE YOU IN EVERY PHOTOGRAPH YOU'VE LOOKED 24 ON BEEN ABLE TO DETERMINE WHETHER OR NOT THE 25 PHOTOGRAPH WAS MORPHED OR NOT? 26 A THE PICTURES THAT APPEAR TO BE ALTERED, THE 27 PICTURES THAT APPEAR TO BE THERE'S A QUESTION AND 28 WE'VE HAD SOME THAT WE'VE LOOKED AT, THERE IS A 271 1 BELIEF THAT THEY MAYBE -- WHERE THE TONE IS 2 DIFFERENT WHERE IT COULD JUST BE A SHADOW, OR IT 3 COULD BE SOMETHING WITH A LIGHTING OR ANY NUMBER OF 4 THINGS, WE'LL USUALLY GIVE TO THE BENEFIT OF THE 5 DEFENDANT AND MOVE THAT AND SAY MAYBE THIS HAS BEEN 6 ALTERED. 7 Q YOU'RE TALKING ABOUT CASES IN WHICH 8 PHOTOGRAPHS HAVE BEEN USED AS EVIDENCE; IS THAT 9 CORRECT? 10 A NO, SIR. WHAT WE DO, OUR JOB IS TO GET THE 11 IMAGINES OFF THE COMPUTER AND THEN TURN THOSE OVER 12 TO THE CASE AGENTS OR TO THE PROSECUTION, WHATEVER, 13 AND LET THEM DO WHAT THEY SAY THEY ARE. OUR JOB IS 14 TO -- 15 THE REPORTER: WAIT A MINUTE. "OUR JOB IS TO" 16 WHAT? 17 THE WITNESS: GET IMAGES THAT ARE QUESTIONABLE. 18 BY MR. BOYCE: 19 Q WELL, TO DETERMINE WHETHER A PHOTOGRAPH HAS 20 BEEN MORPHED OR NOT, YOU'D HAVE TO DEFINITIVELY SAY 21 WHETHER IT'S BEEN MORPHED OR NOT, YOU'D HAVE TO GO 22 BACK TO WHO TOOK THE PHOTOGRAPHS AND HAD IT PUT 23 TOGETHER, DON'T YOU? 24 A NOT ALL THE TIME. 25 Q NOT ALL THE TIME. YOU HAVE TO IN SOME 26 PHOTOGRAPHS; CORRECT? 27 A IF IT APPEARS TO BE ALTERED, THEN WE WILL 28 GIVE THEM THE BENEFIT AND SAY IT PROBABLY ISN'T A 272 1 QUESTIONABLE IMAGE AND WE'LL EITHER PUT IT IN A 2 SEPARATE CATEGORY, THAT WAY THE CASE AGENT KNOWS 3 THIS ISN'T SOMETHING WE CAN GO INTO COURT AND SAY 4 THIS IS, YOU KNOW, A QUESTIONABLE IMAGE. 5 Q SO LET ME SEE IF I UNDERSTAND YOU. YOU'RE 6 SAYING THAT IF YOU VIEW AN IMAGE ON THE COMPUTER; 7 CORRECT? 8 A YES. 9 Q TO TELL SOME OF THOSE PHOTOS ARE -- HAVE 10 BEEN MORPHED; IS THAT CORRECT? 11 A I'VE SEEN SOME THAT HAVE BEEN ALTERED, YES, 12 SIR. 13 Q AND TO DETERMINE WHETHER OR NOT THEY HAVE 14 BEEN ALTERED, DEPENDS ON THE TECHNOLOGY USED. IF 15 POOR TECHNOLOGY IS USED, THEN IT'S MORE OBVIOUS THAT 16 THE PHOTO HAS BEEN MORPHED. IF BETTER TECHNOLOGY IS 17 USED, THEN IT'S LESS APPARENT. 18 IS THAT CORRECT? 19 A YES, SIR. 20 Q IN THIS CASE, IN THE PHOTOS THAT YOU'VE 21 MARKED INTO EVIDENCE, DO YOU KNOW WHO TOOK THOSE 22 PHOTOS? 23 A NO, SIR, I DID NOT. 24 Q YOU DIDN'T GO BACK AND RESEARCH THE SITES 25 FROM WHICH THOSE PHOTOS WERE TAKEN FROM, DID YOU? 26 A THE SITES, I CAN ONLY RECALL ONE SAVED 27 BANNER THAT HAD A SITE ON IT AND IT WAS AN 28 ADVERTISING BANNER. BUT THE REST OF THE PHOTOS, AS 273 1 I RECALL, I DIDN'T SEE TOO MANY SITES. 2 Q YOU WEREN'T ABLE TO GO BACK AND CONTACT THE 3 PEOPLE OR IMAGES OF APPARENT PEOPLE IN THOSE 4 PHOTOGRAPHS AND DETERMINE WHETHER OR NOT THEY 5 WERE -- HOW OLD THEY WERE? 6 A NO, SIR, I DID NOT CONTACT ANYBODY. 7 Q AND THOSE PHOTOGRAPHS APPEAR TO BE VARYING 8 AGES, DON'T THEY? 9 A YES, SIR, THEY DO. 10 Q YOU DESCRIBED AT LEAST FOUR COMPUTERS THAT 11 YOU SEIZED FROM MR. WESTERFIELD'S HOUSE; IS THAT 12 CORRECT? NOT SEIZED, BUT YOU EXAMINED IN 13 MR. WESTERFIELD'S HOUSE. 14 A YES, SIR. 15 Q THERE WERE THREE PERSONAL COMPUTERS AND ONE 16 LAPTOP? 17 A YES, SIR. 18 Q YOU ALSO EXAMINED A PALM PILOT? 19 A YES, SIR. 20 Q WHEN YOU DOWNLOADED THE PALM PILOT, WHEN 21 YOU COPIED THE PALM PILOT, DO YOU COPY ALL THE 22 INFORMATION THAT'S ON THAT PALM PILOT? 23 A YES, SIR, WE DID. 24 Q YOU'VE ALREADY DONE THAT; IS THAT CORRECT? 25 A YES, SIR, IT HAS. 26 Q AND THOSE COMPUTERS WERE LOCATED IN VARIOUS 27 PLACES WITHIN THE HOUSE? 28 A YES, SIR, THAT IS CORRECT. 274 1 Q THERE WERE AT LEAST TWO BEDROOMS IN THAT 2 HOUSE WHERE DIFFERENT PEOPLE WERE SLEEPING; IS THAT 3 CORRECT? 4 A I DON'T KNOW. 5 Q DID YOU NOTICE HOW MANY BEDROOMS WERE 6 UPSTAIRS? 7 A I BELIEVE THERE WERE THREE OR FOUR 8 BEDROOMS. WE PRIMARILY TRIED STAYING OUT OF 9 HOMICIDE'S WAY AND STAYED IN THE ONE OFFICE. 10 Q ANY OF THE IMAGES THAT YOU'VE MARKED AS AN 11 EXHIBIT IN THIS CASE, ALL OF THOSE IMAGES WERE TAKEN 12 FROM THE ZIP DRIVES AND THE CD ROMS THAT YOU SEIZED; 13 IS THAT CORRECT? 14 A IF I COULD REFER TO THE GRAPH AT THE FRONT 15 OR THE INDEX AT THE FRONT, SOME OF THE IMAGES WERE 16 TAKEN FROM THE HARD DRIVE, THE ZIP DISKS, AND THE 17 CD'S. 18 Q I WANT TO TALK ABOUT THE IMAGES THAT WERE 19 TAKEN FROM THE HARD DRIVE. WERE THEY TAKEN FROM -- 20 DO YOU KNOW THE DIFFERENCE BETWEEN ALLOCATED AND 21 UNALLOCATED SPACE? 22 A YES, SIR. 23 Q WHAT'S THE DIFFERENCE? 24 A ALLOCATED SPACE IS AREAS THAT HAVE BEEN 25 RESERVED FOR WHAT'S CALLED ACTIVE FILES. SUCH AS IF 26 YOU WERE TO TURN ON YOUR COMPUTER AND YOU WERE TO 27 LOOK IN THE WINDOWS EXPLORER, YOU WOULD SEE A BUNCH 28 OF FILES THERE. ALL THOSE FILES ARE ACTIVE FILES. 275 1 IF YOU WERE TO DELETE ONE OF THEM, AND SENT IT OFF 2 TO, YOU KNOW, KIND OF COMPUTER NEVERLAND, SO TO 3 SPEAK, THAT AREA WHERE THE FILE WAS ONCE ACTIVE, 4 IT'S NOW UNACTIVE OR UNALLOCATED, AND THAT SPACE IS 5 NOW AVAILABLE FOR A NEW FILE TO BE WRITTEN OVER. 6 HOWEVER, THAT FILE STILL REMAINS ON THE COMPUTER 7 UNTIL IT'S OVERWRITTEN BY A NEW FILE. 8 Q IN OTHER WORDS, IF SOMEONE ATTEMPTS TO 9 DELETE INFORMATION FROM THE COMPUTER, IT'S NOT 10 ACTUALLY DELETED, IT JUST GOES TO UNALLOCATED SPACE; 11 IS THAT CORRECT? 12 A THAT IS CORRECT. 13 Q AND UNLESS YOU GO INTO THE UNALLOCATED 14 SPACE, IS THERE A WAY TO DELETE IT FROM THE 15 UNALLOCATED SPACE? 16 A THERE'S NUMEROUS PROGRAMS THAT YOU CAN 17 DELETE THEM WITH. YES. 18 Q SO EVERYTHING THAT IS DELETED FROM THE 19 ALLOCATED SPACE OF THE COMPUTER ENDS UP IN THE 20 UNALLOCATED SPACE; IS THAT CORRECT? 21 A THAT IS CORRECT, YES, SIR. 22 Q THE IMAGES THAT WERE ON THE HARD DRIVES OF 23 THESE COMPUTERS, WERE THEY IN THE ALLOCATED OR 24 UNALLOCATED SPACE? 25 A THEY APPEAR TO HAVE BEEN IN I BELIEVE THE 26 ALLOCATED SPACE. 27 Q CAN YOU DETERMINE WHETHER ANY OF THEM WERE 28 IN THE UNALLOCATED SPACE? 276 1 A IT APPEARS THERE WAS ONE FILE THAT WAS -- 2 ACTUALLY STILL ALLOCATED, WAS IN THE RECYCLE BIN, 3 BUT THAT'S KIND OF THE STEP BEFORE IT GOES TO THE 4 UNALLOCATED SPACE. AND BY LOOKING AT THE FILE, BY 5 EXAMINING THE FILES, IT APPEARS THAT NONE OF THE 6 FILES FROM THE HARD DRIVE WERE IN THE UNALLOCATED 7 SPACE, IT APPEARS THEY WERE ALL ACTIVE FILES. 8 Q NOW, ON THE ZIP DRIVE THAT YOU EXAMINED, 9 CAN YOU ERASE ZIP DRIVES? 10 A YES, SIR. 11 Q YOU CAN WRITE OVER THEM; IS THAT CORRECT? 12 A YES, SIR. 13 Q CAN YOU TELL WHETHER OR NOT A ZIP DRIVE HAS 14 BEEN ERASED AND WRITTEN OVER? 15 A NO. IF IT HAS BEEN TOTALLY ERASED, THEN 16 YOU'RE NOT GOING TO HAVE ANYTHING THERE. IF YOU'VE 17 GOT FILES THAT HAVE BEEN DELETED, THEN YOU'RE GOING 18 TO HAVE SOME FILES THAT WERE THERE. YOU'LL HAVE 19 REMNANTS OF THAT, AND YOU'LL KNOW YOU HAVE OTHER 20 ACTUAL REMNANTS OF THOSE IN THE UNALLOCATED SPACE. 21 Q COULD YOU TELL FROM THE ZIP DRIVE WHETHER 22 ANY OF THE IMAGES THAT YOU DOWNLOADED FROM THOSE ZIP 23 DRIVES WERE FROM THE ALLOCATED OR UNALLOCATED SPACE 24 IN THE ZIP DRIVES? 25 A THE MAJORITY OF THE FILES WERE ACTIVE OR 26 FROM ALLOCATED, AS YOU CALL IT. THERE WERE SOME 27 THAT WERE RECENTLY DELETED, BUT IT HADN'T GOTTEN TO 28 THE POINT -- THEY'RE STILL FILE NAMES. 277 1 IF I MAY, WHEN YOU DELETE A FILE, YOU'VE 2 GOT THREE KIND OF LOCATIONS WITH REFERENCES OF THAT 3 FILE ARE. YOU HAVE THE DIRECTORY LISTING WHICH 4 GIVES YOU THE FILE NAME, THE DATE IT WAS CREATED, 5 THAT SORT OF THING. YOU HAVE THE FILE ALLOCATION 6 TABLE WHICH IS LIKE AN INDEXING SYSTEM. IT TELLS 7 THE COMPUTER WHERE ON THE DISK THE FILE IS. 8 SOMETIMES IF A FILE IS LARGE ENOUGH, IT MAY BE IN 9 ABOUT FOUR OR FIVE DIFFERENT PARTS OF THE DISK. THE 10 FILE LOCATION TABLE IS AN INDEX, IT KIND OF SAYS 11 WHERE ALL THE PARTS ARE. 12 AND LASTLY, YOU HAVE THE PHYSICAL LOCATION 13 WHERE THAT IMAGE IS. WHEN YOU DELETE A FILE, THE 14 FILE NAME UNDER THE DIRECTORY WHICH JUST LISTS ALL 15 THE FILE NAMES, THE FIRST CHARACTER OF THAT IS 16 CHANGED TO A SYMBOL CALLED THE SIGMA. THAT TELLS 17 THE COMPUTER THAT IT'S BEEN DELETED. AND THE 18 INDEXING OR FILE ALLOCATION TABLE IS WHAT IS ZEROED 19 OUT OR ZEROES ARE ENTERED IN. THE ORIGINAL FILE IS 20 MAINTAINED, THE FILE ITSELF ON THE PHYSICAL LOCATION 21 OF THE DISK IS UNCHANGED, AND IT'S STILL THERE. 22 FREQUENTLY, WE'LL BE ABLE TO RECOVER 23 BECAUSE A FILE NAME STILL EXISTS OR MOST OF IT 24 EXISTS, IT'S ABLE TO BE RECONSTRUCTED. SO ON THE 25 ZIP DISKETTE THERE ARE SEVERAL FILES THAT ALTHOUGH 26 THEY WERE DELETED, WE WERE ABLE TO RECOVER THE FILE 27 NAME AND SO FORTH. 28 IF IT GOES TO UNALLOCATED SPACE AND IT'S 278 1 BEEN THERE LONG ENOUGH OR THE DIRECTORY LISTING OR 2 THE NAME OF THE FILE HAS BEEN OVERWRITTEN, THEN WE 3 DON'T HAVE THE NAME OF THE FILE AND WE HAVE TO USE 4 UTILITIES TO GO AND PARSE OUT THOSE FILES. 5 THE REPORTER: "TO GO AND" WHAT? 6 THE WITNESS: PARSE, P-A-R-S-E. 7 BY MR. BOYCE: 8 Q ANY OF THE IMAGES IN EXHIBIT 4, ARE THOSE 9 -- DID YOU HAVE TO RECONSTRUCT THOSE FROM THE ZIP 10 DRIVE? 11 A NO. 12 Q WHAT ABOUT FROM EXHIBIT 5? 13 A ALL OF THE FILES THAT ARE IN, THAT I 14 EXTRACTED WERE ALL -- NONE OF THEM WE USE ANY OF THE 15 PARSING OR CARVING UTILITIES, AS THEY SAY. 16 Q I'M SORRY? 17 A NONE OF THEM WERE ACTUALLY PARSED OUT OR 18 HAD TO USE UTILITIES TO RECONSTRUCT THEM. 19 Q WHAT DO YOU MEAN BY THAT? 20 A PROGRAM BUILDERS WILL LOOK FOR -- EVERY 21 FILE AT THE PHYSICAL FILE HAS WHAT'S CALLED HEADER 22 WHICH SAYS WHAT TYPE OF FILE IT IS. THERE'S .JPG. 23 THERE'S .JFIF. THE COMPUTER LOOKS FOR THIS AND SAYS 24 THIS IS THE FIRST PART OF A .JPG FILE. 25 AT THE END OF THE FILE OR FOOTER, THERE'S 26 ANOTHER PIECE OF CODE THAT IT GOES DOWN LOOKS FOR 27 THE END. THE PROGRAM LOOKS TO SEE IF THE TWO ARE 28 CONTIGUOUS AND PULLS OUT OR PARSES THAT OUT, AS AN 279 1 IMAGE. WE GET THE IMAGE BUT WE DON'T GET ANY FILE 2 NAMES. 3 Q WHAT IS A .JPG? 4 A .JPG IS A DIGITAL PHOTOGRAPH. 5 Q AS OPPOSED TO AN .MPG? 6 A WHICH WOULD BE A DIGITAL MOVIE. 7 Q AND WHAT DOES -- OR .MPG, IT'S MPD OR MPG? 8 A YES, SIR, THAT IS CORRECT. 9 Q WHAT'S A BAD SIGNATURE? 10 A A BAD SIGNATURE IS IF WE HAVE ONE OF THE 11 FORENSIC TOOLS WE USE WILL GO THROUGH AND IT WILL 12 LOOK THROUGH THE FILES AND IT WILL LOOK TO SEE IF -- 13 LET ME BACK UP A LITTLE BIT. 14 WHEN YOU LOOK -- WE'LL USE THE .JPG WHICH 15 IS A DIGITAL PHOTOGRAPH. IF I WERE TO TAKE THE FILE 16 NAME WE'LL SAY PICTURE .JPG OR .JPEG, AND I WANTED 17 TO TRY AND HIDE THE PHOTOGRAPH OR DO SOMETHING, I'D 18 CHANGED THE EXTENSION TO DOC, WHICH IS A WORD 19 DOCUMENT, AND YOU MIGHT THINK THAT IT IS A WORD 20 DOCUMENT OR SOME OTHER EXTENSION LIKE DLL, OR 21 SOMETHING THAT WOULD MAKE SOMEONE THINK IT'S A 22 SYSTEM FILE NOT A PICTURE. 23 WE HAVE A UTILITY THAT WILL GO THROUGH ALL 24 THE FILES ON THE COMPUTER AND IT WILL SAY WHETHER 25 THE FILE SIGNATURE OR IF THE FILE EXTENSION AND THE 26 HEADER I TALKED ABOUT LIKE IN THE .JPG CASE, THAT 27 .JFIF, IF THEY MATCH. IF THEY DON'T MATCH, IT SAYS 28 THE SIGNATURE IS BAD, WHICH MEANS THE TWO DON'T 280 1 MATCH AND THE FILE'S RENAMED. 2 Q IN YOUR EXAMINATION OF THE COMPUTERS THAT 3 WERE FOUND IN MR. WESTERFIELD'S HOME, YOU DIDN'T 4 FIND ANY BAD SIGNATURES, DID YOU? 5 A NO, SIR. 6 Q AND YOU AND THE PEOPLE WORKING FOR YOU WERE 7 LOOKING FOR BAD SIGNATURES, WEREN'T YOU? 8 A IT'S A ROUTINE CHECK THAT WE RUN ON THE 9 FILES, YES, SIR. 10 Q AND A BAD SIGNATURE IS SOMEONE ATTEMPTING 11 TO HIDE A FILE? 12 A THAT WOULD BE CORRECT. 13 Q YOU HAD SEVERAL PEOPLE ASSISTING YOU IN 14 EXAMINING THE COMPUTERS; IS THAT CORRECT? 15 A YES, SIR, THAT IS CORRECT. 16 Q AND YOU HAD ONE OFFICER BY THE NAME OF 17 OFFICER ARMSTRONG ASSISTING YOU; IS THAT CORRECT? 18 A NO, SIR, THAT IS NOT CORRECT. 19 Q DO YOU KNOW WHO OFFICER ARMSTRONG IS? 20 A I KNOW A DETECTIVE ARMSTRONG. 21 Q A DETECTIVE ARMSTRONG? 22 A YES, SIR. 23 Q WAS HE ASSISTING YOU? 24 A NO, SIR, HE WAS NOT. 25 Q DID HE TELL YOU THAT HE EXAMINED OVER 26 64,000 .JPG OR STILLS ON MR. WESTERFIELD'S 27 COMPUTERS? 28 A HE DID COME TO THE LABORATORY AND HE DID 281 1 EXAMINE THE IMAGES ON MY COMPUTER, YES, SIR. 2 Q HE ALSO EXAMINED 22- -- OVER 2,200 VIDEO 3 FILES FROM THE COMPUTERS; IS THAT CORRECT? 4 A I KNOW THAT HE EXAMINED SOME, YES, SIR. 5 Q SO THAT'S APPROXIMATELY 67-, 68,000 6 SEPARATE FILES; IS THAT CORRECT? 7 A THAT IS CORRECT. 8 Q FROM THE COMPUTERS THAT WERE IN 9 MR. WESTERFIELD'S HOME? 10 A THAT IS CORRECT. 11 Q AND HE FOUND NO FILES DEPICTING CHILD 12 PORNOGRAPHY. WAS THAT HIS CONCLUSION? 13 MR. DUSEK: OBJECTION; HEARSAY, NO FOUNDATION AS 14 TO WHAT CHILD PORNOGRAPHY IS. 15 THE COURT: YOU MIGHT WANT -- I'M GOING TO 16 OVERRULE THE HEARSAY OBJECTION. 17 BUT YOU MIGHT WANT TO CHANGE THE 18 PHRASEOLOGY WITH RESPECT TO CHILD PORNOGRAPHY. 19 BY MR. BOYCE: 20 Q MR. ARMSTRONG TOLD YOU THAT HE FOUND NO 21 IMAGES DEPICTING CHILDREN ENGAGED IN SEXUAL ACTS? 22 A HE FOUND THAT HE DIDN'T BELIEVE THEY WERE 23 PREPUBESCENT PHOTOS OR DIGITAL IMAGES, WHICH 24 APPARENTLY IS WHAT HE GOES BY. HE SPENT ABOUT AN 25 HOUR-AND-A-HALF LOOKING THROUGH THE PHOTOS. 26 Q HOW DO YOU KNOW HOW LONG HE SPENT? 27 A I WAS IN THE OFFICE WITH HIM. 28 Q BUT DIDN'T YOU SAY THAT YOU DIDN'T WORK 282 1 WITH HIM? 2 A HE REQUESTED TO COME IN AND LOOK AT THE 3 IMAGES. HE SAID HE HAD BEEN REQUESTED TO LOOK AT IT 4 BY LIEUTENANT COLLINS. SO WE ALLOWED HIM TO EXAMINE 5 THE COMPUTER. 6 Q THIS WAS ALL 67-, 68,000 IMAGES FROM THESE 7 COMPUTERS; IS THAT RIGHT? 8 A THAT IS CORRECT. 9 Q AND SO YOU DISAGREE WITH MR. ARMSTRONG'S 10 CONCLUSIONS; IS THAT RIGHT? 11 A NOT AT ALL. 12 MR. DUSEK: OBJECTION; ASSUMES FACTS NOT IN 13 EVIDENCE. 14 THE COURT: SUSTAINED. 15 COUNSEL, I'VE LET YOU HAVE SOME LATITUDE. 16 THIS IS GOING PAST WHERE YOU SHOULD BE GOING. AT 17 LEAST IN MY OPINION. 18 GO AHEAD. 19 MR. BOYCE: THANK YOU, YOUR HONOR. 20 BY MR. BOYCE: 21 Q FROM THE FILES THAT YOU DOWNLOADED AND THE 22 IMAGES THAT ARE MARKED AS EXHIBITS 4 AND 5, DO YOU 23 KNOW WHEN THOSE FILES WERE OPEN WHICH CONTAIN THOSE 24 IMAGES? 25 A WE DO HAVE THE LISTING OF THEM, YES, SIR. 26 Q AND DO WE HAVE A DOCUMENT WITH THE LISTING 27 OF WHEN THOSE FILES WERE OPEN? 28 A YES, SIR, WE DO. 283 1 MR. BOYCE: I WOULD REQUEST THAT THAT BE MARKED 2 AS DEFENDANT'S NEXT IN ORDER, YOUR HONOR. 3 THE COURT: WELL, WE DON'T EVEN HAVE FIRST IN 4 ORDER; RIGHT? 5 MR. BOYCE: FIRST IN ORDER. 6 THE COURT: WE HAVE A REQUEST TO MARK THE 7 PICTURES OF THIS YOUNG WOMAN WHO, FROM WHAT I 8 GATHER, IS A DAUGHTER OF A FRIEND OF 9 MR. WESTERFIELD'S. I THINK THERE WERE SIX PICTURES. 10 THAT'S WHAT I REMEMBER. 11 MR. DUSEK: I THINK IT'S DISCOVERY PAGE 1454. 12 THE COURT: OKAY. SO THIS IS -- WE'RE TALKING 13 ABOUT DISCOVERY PAGE 1464 -- 14 MR. DUSEK: -54. 15 THE COURT: -- -54, WHICH IS A DOCUMENT THAT 16 INDICATES WHEN THE FILES WERE OPENED. AM I CORRECT? 17 IS THAT WHAT YOU'RE REPRESENTING IT IS? SINCE I'VE 18 NEVER SEEN IT AND DON'T HAVE ANY IDEA WHAT IT LOOKS 19 LIKE, I NEED SOME HELP. 20 SHOW IT TO COUNSEL. IF HE DOESN'T HAVE ANY 21 OBJECTION, WE'LL MAKE IT DEFENDANT'S A. WE'LL MARK 22 IT DEFENDANT'S A. 23 MR. FELDMAN: CAN WE GET OUR XEROX COPY BACK? 24 THE COURT: WE'LL DO WHAT WE CAN, COUNSEL. 25 MR. BOYCE: WE'RE LOOKING FOR PAGE 1454, YOUR 26 HONOR. 27 THE COURT: I THINK THE WITNESS HAS IT. 28 MR. DUSEK: AND 1467. 284 1 THE COURT: YOU KNOW, THIS IS A GOOD TIME TO 2 TAKE A BREAK. WHILE WE TAKE OUR MORNING BREAK, I 3 WOULD ASK COUNSEL TO WORK ON THESE EXHIBITS THAT THE 4 DEFENSE WISHES TO PUT INTO EVIDENCE. APPARENTLY, 5 THEY'RE DOCUMENTS FROM THE COMPUTER THAT INDICATES 6 WHEN THESE FILES WERE OPENED, AND THE PICTURES OF 7 THE YOUNG LADY WHO IS APPARENTLY THE DAUGHTER OF A 8 FRIEND OF MR. WESTERFIELD'S. 9 PLEASE WORK TOGETHER. IF WE CAN HELP YOU, 10 WE'LL GIVE YOU ACCESS TO A PHOTOCOPY MACHINE. BUT 11 IT MAY NOT BE IN THIS AREA. IT MAY BE DOWN WHERE MY 12 NORMAL DEPARTMENT IS. 13 PLEASE REMEMBER MY ADMONITION. WE WILL 14 RESUME AT 20 MINUTES TO 11:00. 15 (RECESS.) 16 THE COURT: HOPEFULLY EVERYBODY GOT THE 17 PHOTOCOPIES THEY NEEDED. 18 MR. FELDMAN: THANK YOU. 19 THE COURT: ALL RIGHT. 20 (DEFENDANT'S EXHIBITS A THROUGH D MARKED FOR 21 IDENTIFICATION.) 22 MR. BOYCE: YOUR HONOR, I HAVE HAD SEVERAL OF 23 THESE MARKED AS EXHIBITS. 24 THE COURT: OKAY. WOULD YOU LIKE TO TELL ME 25 WHAT THE EXHIBIT NUMBERS ARE? 26 MR. BOYCE: CERTAINLY. 27 THE COURT: OR LETTERS. 28 MR. BOYCE: EXHIBIT A APPEARS TO BE -- WELL, IT 285 1 IS EIGHT PAGES OF PHOTOGRAPHS DEPICTING A LADY AND A 2 GIRL AND PICTURES OF THE GIRL AT A SWIMMING POOL. 3 THE COURT: ALL RIGHT. I ASSUME THOSE ARE THE 4 PHOTOS OF MR. WESTERFIELD'S ALLEGED FRIEND AND 5 DAUGHTER; AM I CORRECT, THAT YOU TALKED ABOUT 6 BEFORE? 7 MR. BOYCE: THAT'S CORRECT, YOUR HONOR. 8 THE COURT: OKAY. 9 MR. BOYCE: DO YOU WANT ME TO GO OVER THE REST 10 OF THE EXHIBITS? 11 THE COURT: SOUNDS GOOD. 12 MR. BOYCE: EXHIBIT B IS TWO HANDWRITTEN PAGES 13 OF WHAT APPEARS TO BE COMPUTER FILES. 14 THE WITNESS: YES, SIR. 15 THE COURT: OKAY. "C"? 16 MR. BOYCE: EXHIBIT C IS FIVE PAGES OF TYPED AND 17 PRINTED INFORMATION REGARDING COMPUTER DIRECTORIES. 18 THE COURT: OKAY. 19 MR. BOYCE: AND EXHIBIT D IS TWO PAGES OF A ZIP 20 DRIVE DIRECTORY OR CD ROM DIRECTORY. 21 THE WITNESS: ACTUALLY, IT'S DIRECTORY LISTING 22 OF THE CD'S AND THE ZIPS. 23 THE COURT: CD'S AND WHAT, PLEASE? 24 THE WITNESS: ZIPS. 25 THE COURT: I GOT IT. ALL RIGHT. ANY MORE? 26 MR. BOYCE: THAT'S IT, YOUR HONOR. 27 THE COURT: ALL RIGHT. YOU'VE SHOWN THEM TO THE 28 D.A. THE D.A. DOESN'T HAVE ANY OBJECTION TO MARKING 286 1 THEM "A," "B," "C," AND "D"; CORRECT? 2 MR. DUSEK: CORRECT. 3 THE COURT: ALL RIGHT. LET'S MOVE ON. 4 BY MR. BOYCE: 5 Q REFERRING FIRST TO EXHIBIT A, ARE THESE THE 6 PHOTOS YOU WERE REFERRING TO THAT WERE OBTAINED FROM 7 MR. WESTERFIELD'S HOUSE FROM I BELIEVE THE ZIP 8 DRIVE? 9 A YES, SIR. 10 Q THESE ARE PHOTOGRAPHS DEPICTING IN THE 11 FIRST -- THE FIRST PHOTOGRAPH APPEARS TO BE A YOUNG 12 LADY AND A GIRL FULLY CLOTHED? 13 A YES, SIR. 14 Q STANDING TOGETHER OR SITTING TOGETHER? 15 A YES, SIR. 16 Q THE NEXT PICTURE APPEARS TO BE A GIRL 17 SUNBATHING IN A LAWN CHAIR WITH A TOWEL OVER HER 18 FACE? 19 A YES, SIR. 20 Q SHE'S IN A BATHING SUIT; CORRECT? 21 A YES, SIR. 22 Q AND THERE APPEARS TO BE A CHAIR NEXT TO HER 23 WITH A TOWEL OVER THE CHAIR; IS THAT CORRECT? 24 A THAT IS CORRECT. 25 Q AS THOUGH SOMEBODY HAD JUST GOTTEN UP THAT 26 HAD BEEN SUNBATHING NEXT TO HER? 27 A THAT'S A POSSIBILITY. 28 Q YOU DON'T HAVE ANY IDEA WHO THAT PERSON WAS 287 1 WHO WAS SUNBATHING NEXT TO HER, DO YOU? 2 A NO, SIR, I DO NOT. 3 Q IT COULD HAVE BEEN A GIRLFRIEND OR FRIEND 4 OF HERS? 5 A YES. 6 Q COULD HAVE BEEN HER MOTHER? 7 A YES. 8 Q THE THIRD PICTURE IS AGAIN WHAT APPEARS TO 9 BE A -- 10 MR. DUSEK: BEST EVIDENCE. THE PHOTOS SPEAK FOR 11 THEMSELVES. THE COURT CAN LOOK. 12 THE COURT: COUNSEL? 13 I UNDERSTOOD THAT THESE WERE EIGHT PHOTOS 14 OF WHAT THIS OFFICER UNDERSTANDS TO BE 15 MR. WESTERFIELD'S FRIEND AND HER DAUGHTER. I CAN 16 LOOK AT THEM AND I DON'T THINK THE RECORD REALLY 17 NEEDS TO BE AS MINUTE AS IT'S BECOMING. 18 MR. BOYCE: THANK YOU, YOUR HONOR. 19 THE COURT: I'LL BE HAPPY TO LOOK AT THEM. 20 (PAUSE IN PROCEEDINGS WHILE THE COURT REVIEWS 21 EXHIBITS.) 22 THE COURT: I LOOKED AT THEM. THANK YOU. 23 IF YOU WANT TO ASK HIM ONE BROAD QUESTION 24 ABOUT THOSE PICTURES, YOU'RE CERTAINLY FREE TO DO 25 SO. 26 BY MR. BOYCE: 27 Q ALL OF THE PHOTOS IN EXHIBIT A APPEAR TO BE 28 PHOTOS OF THE SAME PEOPLE IN POSES AROUND THE POOL 288 1 AND AROUND A JACUZZI; IS THAT CORRECT? 2 A YES, SIR. 3 Q THE IMAGES THAT WERE -- ARE DEPICTED IN 4 EXHIBITS 4 AND 5, REFERRING TO EXHIBIT 4 FIRST, CAN 5 YOU TELL US WHEN THOSE FILES WERE CREATED ON EITHER 6 THE ZIP DRIVE OR THE HARD DRIVE OR THE CD ROM FROM 7 WHICH THEY WERE TAKEN? 8 A YES, SIR. 9 ON THE FIRST PAGE -- 10 Q YOU'RE REFERRING TO EXHIBIT 4? 11 A ON EXHIBIT 4, THE FIRST PAGE, THE FILE NAME 12 UNDERSCORE EA7950.JPG WAS CREATED ON MAY 17TH, 1999 13 AT 12:56 P.M. 14 Q I'M NOT SO MUCH INTERESTED IN THE TIME AS 15 THE DATE. 16 A YES, SIR. 17 THE NEXT ONE WAS E -- UNDERSCORE EA13186. 18 THAT WAS CREATED ON 4-22-99. 19 UNDERSCORE EA13392.JPG WAS CREATED ON 2-16 20 OF '99. 21 ON E -- UNDERSCORE EA15677.JPG THAT WAS 22 CREATED ON 5-17 OF '99. 23 Q NOW, THAT WAS THE FIRST PAGE OF EXHIBIT 4; 24 IS THAT CORRECT? 25 A YES, SIR. 26 Q WHAT I'D LIKE YOU TO DO IS GO TO THE SECOND 27 PAGE AND SEE IF THERE'S ANY PHOTOGRAPHS ON THAT PAGE 28 THAT WERE CREATED ON A DIFFERENT DATE. 289 1 A EA1 -- UNDERSCORE EA22171.JPG WAS ON 2 APRIL 15TH, 1999. 3 Q WHY DON'T WE DO THIS: WHY DON'T YOU LOOK 4 AT -- WHY DON'T WE DO THIS: WHY DON'T YOU LOOK AT 5 THE PICTURES AND SEE IF THERE'S ANY PHOTOGRAPHS OR 6 ANY IMAGES THAT WERE CREATED IN A YEAR OTHER THAN 7 1999. 8 THE COURT: GOOD QUESTION. 9 MR. BOYCE: OTHERWISE WE'RE GOING TO BE HERE FOR 10 A WHILE. 11 THE COURT: I WAS ABOUT TO SAY SOMETHING. 12 THE WITNESS: NO, SIR. NONE. 13 THE COURT: SO WHAT YOU'RE TELLING ME, BOTTOM 14 LINE, IS THE PICTURES, ANIMATIONS, CONTAINED IN 4 15 AND 5 OF THE PEOPLE'S EXHIBITS WERE ALL CREATED IN 16 1999. IS THAT WHAT YOU'RE TELLING ME? 17 THE WITNESS: THOSE ARE THE IMAGES ON NUMBER 4. 18 ON PEOPLE'S 4. 19 THE COURT: JUST NUMBER 4? 20 THE WITNESS: YES, SIR. 21 THE COURT: OKAY, I'M SORRY. 22 YOU WANT THE SAME QUESTION WITH RESPECT TO 23 5? 24 BY MR. BOYCE: 25 Q NUMBER 5, CAN YOU TELL US WHEN THESE IMAGES 26 WERE CREATED? 27 A ACTUALLY, IF YOU COULD, SIR, I'M SORRY. I 28 MISSPOKE. THAT WAS ACTUALLY JUST FOR A SET OF FIVE. 290 1 IF YOU CAN LET ME LOOK AT MY -- 2 Q EXHIBIT 4? 3 A CORRECT, EXHIBIT 4. THE PAGES DEPICTING -- 4 THE COURT: SIR, JUST TELL US IF THERE ARE ANY 5 PICTURES THAT ARE IN EVIDENCE OR ANY ANIMATIONS THAT 6 ARE IN EVIDENCE THAT WERE CREATED IN A YEAR OTHER 7 THAN 1999. 8 THE WITNESS: YES, SIR. 9 BY MR. BOYCE: 10 Q IN EXHIBIT 4, ARE THERE ANY IMAGES THAT 11 WERE CREATED IN OTHER THAN 1999? 12 A THERE WERE TWO. YES, SIR, THERE WERE. 13 Q ARE THESE IMAGES THAT ARE CONTAINED IN 14 EXHIBIT 4? 15 MR. DUSEK: YOUR HONOR, WOULD IT BE POSSIBLE TO 16 PERHAPS RECESS THIS WITNESS, ALLOW HIM TO MAKE HIS 17 COMPUTATIONS, AND START WITH ANOTHER WITNESS? 18 THE COURT: COUNSEL, I DON'T KNOW WHAT THE OTHER 19 WITNESSES ARE, AND I CERTAINLY DON'T LIKE THE PACE, 20 BUT I CAN'T BLAME ANYONE FOR IT. 21 COUNSEL, HOW MANY MORE QUESTIONS DO YOU 22 HAVE OF THIS WITNESS? 23 MR. BOYCE: I HAVE PERHAPS TWO OTHER LINES OF 24 QUESTIONING THAT WON'T TAKE SO LONG. 25 THE COURT: OKAY. SIR, TAKE A LOOK AT THAT AND 26 TELL US WHICH OF THOSE PICTURES, IF ANY, ON 27 EXHIBIT 4 WERE CREATED IN A YEAR OTHER THAN 1999. 28 THE WITNESS: YES, SIR. ONE -- OR IEA10548. 291 1 THE COURT: WAS CREATED IN? 2 THE WITNESS: WAS CREATED 12-17 OF 2001. 3 THE COURT: ALL RIGHT. THANK YOU. 4 THE WITNESS: THEN ON THE SAME DATE, 12-17 OF 5 2001, WAS IEA11058.JPG. 6 AND THAT APPEARS TO BE IT, SIR. 7 THE COURT: THANK YOU. I HAVEN'T SEEN THEM. 8 PLEASE INDICATE TO ME WHICH ARE THE TWO PICTURES. 9 JUST INDICATE TO ME. 10 THE WITNESS: UNFORTUNATELY, I'M TRYING TO GO 11 THROUGH THE LIST. 12 THE COURT: TAKE YOUR TIME. 13 MR. BOYCE: WHAT I WOULD SUGGEST, IF WE COULD 14 HAVE THE WITNESS HIGHLIGHT. 15 THE COURT: HOLD ON. THIS IS NOT YOUR EXHIBIT. 16 SO I'M NOT ABOUT TO HIGHLIGHT WITHOUT THE D.A. 17 SAYING -- I THINK I CAN DESCRIBE IT FOR THE RECORD. 18 MR. DUSEK: I BELIEVE IT WAS PAGE 1 OF 8. 19 THE WITNESS: THANK YOU, SIR. 20 THE COURT: REFERRING -- LET ME SEE THE WHOLE 21 PAGE. REFERRING TO PAGE 1 OF 8, IT'S THE BOTTOM 22 LEFT PICTURE. 23 NEXT? 24 MR. DUSEK: 3 OF 8. 25 THE WITNESS: IT'S ALSO THE BOTTOM LEFT PICTURE 26 OF 4. 27 THE COURT: THANK YOU. 28 ALL RIGHT. GO AHEAD, COUNSEL. 292 1 YOUR NEXT QUESTION, AS I UNDERSTAND IT, IS 2 WHEN WERE THE ANIMATIONS DONE; CORRECT? 3 MR. BOYCE: CORRECT, YOUR HONOR. 4 THE COURT: CAN YOU TELL ME WHEN THE ANIMATIONS 5 WERE DONE, SIR? 6 THE WITNESS: YES, SIR. 7 THE COURT: WERE THEY ALL DONE AT THE SAME TIME? 8 THE WITNESS: I BELIEVE THEY WERE. YES, SIR. 9 THE COURT: WHAT WAS IT? 10 THE WITNESS: IT WAS -- THE FIRST SERIES WAS 11 1-14-99 AND THE SECOND SERIES WAS ALSO 1-14-99. 12 THE COURT: THANK YOU. 13 NEXT QUESTION, COUNSEL. 14 MR. BOYCE: THANK YOU, YOUR HONOR. 15 BY MR. BOYCE: 16 Q THESE IMAGES WERE DOWNLOADED FROM SITES ON 17 THE INTERNET; IS THAT CORRECT? 18 A I COULDN'T TELL YOU HOW THEY GOT ON THE 19 COMPUTER, SIR. 20 Q BUT YOU HAVE BEEN TO SITES ON THE INTERNET 21 WHICH HAVE IMAGES SIMILAR TO THESE; IS THAT CORRECT? 22 A YES, SIR, THAT IS CORRECT. 23 Q APPROXIMATELY HOW MANY SITES EXIST ON THE 24 INTERNET THAT HAVE THESE IMAGES? 25 MR. DUSEK: OBJECTION; IRRELEVANT. 26 THE COURT: SUSTAINED. 27 MR. BOYCE: COULD I HAVE JUST A MOMENT, YOUR 28 HONOR? 293 1 THE COURT: YES. 2 BY MR. BOYCE: 3 Q DO YOU KNOW WHERE THE PHOTOGRAPHS THAT WERE 4 CONTAINED IN DEFENDANT'S EXHIBIT A, THE PHOTOGRAPHS 5 OF DANIELLE, THE DAUGHTER OF MR. WESTERFIELD'S 6 GIRLFRIEND, WERE DOWNLOADED FROM? 7 MR. DUSEK: OBJECTION; IRRELEVANT. 8 THE COURT: OVERRULED. 9 THE WITNESS: NO, SIR, I DO NOT. 10 BY MR. BOYCE: 11 Q THERE'S NOTHING ILLEGAL ABOUT TAKING 12 PICTURES OF YOUR DAUGHTER'S GIRLFRIEND, IS THERE? 13 GIRLFRIEND'S DAUGHTER. 14 MR. DUSEK: CALLS FOR A LEGAL CONCLUSION. 15 THE COURT: OVERRULED. 16 THE WITNESS: NO. 17 THE COURT: NEXT QUESTION. 18 THE REPORTER: I DIDN'T HEAR AN ANSWER. 19 THE COURT: THE ANSWER WAS NO. 20 MR. BOYCE: I HAVE NOTHING FURTHER. 21 THE COURT: DO YOU HAVE ANY OTHER QUESTIONS? 22 MR. DUSEK: NO. 23 THE COURT: THANK YOU. 24 WOULD YOU TAKE THOSE EXHIBITS THAT BELONG 25 TO THE DISTRICT ATTORNEY, PLEASE GIVE THEM BACK TO 26 HIM, AND THOSE EXHIBITS THAT BELONG TO THE DEFENSE, 27 GIVE THEM BACK TO THE DEFENSE. 28 THE WITNESS: YES, SIR. 294 1 MR. FELDMAN: SUBJECT TO RECALL, YOUR HONOR. 2 THE COURT: SUBJECT TO RECALL. REMEMBER MY 3 ADMONITION ABOUT NOT DISCUSSING THIS CASE WITH 4 ANYONE ELSE AND ALSO NOT VIEWING ANY MEDIA REPORTS 5 OR LISTENING TO ANY MEDIA REPORTS OF THIS CASE UNTIL 6 AFTER THIS PRELIMINARY HEARING IS OVER. 7 NEXT WITNESS. 8 MR. CLARKE: YES, YOUR HONOR. JAMES 9 HERGENROEATHER. 10 THE COURT: THANK YOU. 11 MR. BOYCE, THIS GENTLEMAN HAS YOUR 12 EXHIBITS. I ASKED HIM TO GIVE YOUR EXHIBITS BACK TO 13 YOU AND THE D.A.'S EXHIBITS BACK TO HIM. 14 MR. BOYCE: THANK YOU. 15 THE COURT: ALL RIGHT. 16 GOOD MORNING. 17 18 JAMES FRANCIS HERGENROEATHER, 19 PEOPLE'S WITNESS, HAVING BEEN FIRST DULY SWORN, 20 TESTIFIED AS FOLLOWS: 21 22 THE COURT: PLEASE TAKE THE STAND, SIR. 23 PLEASE TELL US YOUR NAME. 24 THE WITNESS: JAMES FRANCIS HERGENROEATHER, 25 H-E-R-G-E-N-R-O-E-A-T-H-E-R. 26 THE COURT: THANK YOU. 27 MR. CLARKE: THANK YOU, YOUR HONOR. 28 ///// 295 1 DIRECT EXAMINATION 2 BY MR. CLARKE: 3 Q BY WHOM ARE YOU EMPLOYED? 4 A CITY OF SAN DIEGO POLICE DEPARTMENT. 5 THE COURT: LET THE RECORD REFLECT MR. CLARKE IS 6 NOW CONDUCTING THE QUESTIONING. 7 BY MR. CLARKE: 8 Q HOW LONG -- FIRST OF ALL, ARE YOU A POLICE 9 OFFICER WITH THE CITY OF SAN DIEGO? 10 A YES, I AM. 11 Q HOW LONG HAVE YOU BEEN A PEACE OFFICER? 12 A TWENTY-TWO YEARS. 13 Q IN PARTICULAR, DO YOU HAVE AN ASSIGNMENT TO 14 A SPECIFIC DIVISION? 15 A YES. I WORK FOR SERGEANT WILLIAM HOLMES AS 16 A HOMICIDE DETECTIVE AND I HAVE FOR THE LAST FIVE 17 YEARS. 18 Q I'D LIKE TO TAKE YOUR ATTENTION, IF I 19 COULD, DETECTIVE HERGENROEATHER, BACK TO THE EARLY 20 PART OF FEBRUARY OF THIS YEAR, 2002, AND ASK IF YOU 21 WERE ASSIGNED IN ANY MANNER TO ASSIST IN THE 22 DISAPPEARANCE OF DANIELLE VAN DAM? 23 A YES, I WAS. 24 Q AND DID YOU A PLAY CERTAIN ROLE IN THAT 25 INVESTIGATION? 26 A YES, I DID. 27 Q IN PARTICULAR, DID YOU HAVE OCCASION TO 28 INTERVIEW AS PART OF THAT INVESTIGATION A WOMAN 296 1 NAMED JULIE MILLS? 2 A YES, I DID. 3 Q WHO IS JULIE MILLS? 4 A SHE IS A CLERK THAT WORKS AT THE TWIN 5 PEAK'S CLEANERS. 6 Q IS THAT A PARTICULAR ESTABLISHMENT THAT 7 CLEANS CLOTHES? 8 A YES. 9 MR. FELDMAN: YOUR HONOR, I NOTE THE WITNESS 10 APPEARS TO BE READING FROM SOMETHING. 11 THIS TIME I'M DOING THIS WITNESS. YOU'RE 12 NOT GETTING DOUBLED UP. 13 THE COURT: I UNDERSTAND. 14 MR. FELDMAN: MY QUESTION WOULD BE THE COURT 15 DIRECT THE WITNESS TO TURN IT OVER. 16 THE COURT: SIR, IF YOU BROUGHT YOUR POLICE 17 REPORT OR OTHER REPORTS WITH YOU, FLIP THEM OVER. 18 IF YOU NEED TO REFER TO THEM, LET US KNOW AND WE'LL 19 TAKE THE APPROPRIATE STEPS. OKAY? 20 THE WITNESS: YES, SIR. 21 THE COURT: ALL RIGHT. GO AHEAD. 22 MR. CLARKE: THANK YOU, YOUR HONOR. 23 BY MR. CLARKE: 24 Q DETECTIVE HERGENROEATHER, THE TWIN PEAK'S 25 CLEANERS, WHERE IS IT LOCATED? 26 A IT'S ON POWAY ROAD. 27 Q IN PARTICULAR, THE INTERVIEW, FIRST OF ALL, 28 DID YOU MEAN INTERVIEW JULIE MILLS? 297 1 A YES, I DID. 2 Q WHEN DID THAT HAPPEN? 3 A MARCH 8, 2002. 4 Q LAST WEEK? 5 A YES. 6 Q WHAT IS JULIE MILLS'S POSITION, IF ANY, AT 7 TWIN PEAK'S CLEANERS? 8 A SHE'S THE COUNTER PERSON FOR THE CLEANERS. 9 Q DID YOU HAVE OCCASION IN YOUR INTERVIEW OF 10 HER TO ASK HER QUESTIONS ABOUT THE DEFENDANT IN THIS 11 CASE, DAVID WESTERFIELD? 12 A YES, I DID. 13 Q WHAT DID THAT CONVERSATION CENTER AROUND, 14 IF YOU COULD GIVE US JUST THE QUICK GIST OF THE 15 CONVERSATION? 16 A SHE TOLD ME ON FEBRUARY 4TH, BETWEEN THE 17 HOURS OF 7:00 AND 8:30, MR. WESTERFIELD PULLED UP IN 18 HIS MOTORHOME, WALKED INSIDE, WEARING A T-SHIRT AND 19 VERY SHORT SHORTS. 20 HE PRESENTED HER WITH FIVE ITEMS: TWO 21 COMFORTER COVERS AND TWO COMFORTERS ALONG WITH A 22 JACKET. 23 Q DID SHE INDICATE TO YOU WHAT REASON HE WAS 24 GIVING THOSE ARTICLES OF CLOTHING AND WHAT SOUNDS 25 LIKE BEDDING TO THE CLEANERS? 26 A NO. 27 Q DID SHE DESCRIBE TO YOU ANYTHING UNUSUAL 28 ABOUT MR. WESTERFIELD THAT MORNING? 298 1 A YES. 2 Q WHAT WAS THAT? 3 A SHE SAYS THAT SHE HAS KNOWN MR. WESTERFIELD 4 FOR SEVERAL YEARS AND ON THIS OCCASION HE SEEMED 5 UPSET. SHE ALSO SAID IT WAS PRETTY COLD OUTSIDE. 6 SHE REMEMBERED THAT MORNING. AND THAT SHE COMMENTED 7 ABOUT HIS DRESS. AND THERE WAS NO RESPONSE, WHERE 8 MR. WESTERFIELD WOULD USUALLY ENGAGE HER IN SOME 9 TYPE OF CONVERSATION. 10 Q I WAS JUST ABOUT TO ASK THAT. DID SHE 11 INDICATE TO YOU SHE'D HAD PREVIOUS CONVERSATIONS OR 12 TALKED WITH THE DEFENDANT, MR. WESTERFIELD? 13 A ON NUMEROUS OCCASIONS. 14 Q DID SHE DESCRIBE TO YOU HOW ON THOSE 15 PREVIOUS OCCASIONS HE WOULD ACT TOWARDS HER? 16 A YES. AND IT WOULD BE ON A LIGHT UPBEAT 17 SIDE. I THINK, IN FACT -- WELL, SHE TOLD ME THAT 18 SHE HAD -- HE HAD ASKED HER OUT AT ONE OCCASION. 19 Q BUT ON THIS OCCASION, SHE DESCRIBED TO YOU 20 HE WAS NOT TALKATIVE AT ALL? 21 A YES. 22 THE COURT: WAS THAT 2-4 -- ON 2-4, WAS THAT IN 23 THE MORNING? YOU SAID 7:00 TO 8:30. I ASSUME IT 24 WAS A.M. 25 THE WITNESS: YES, SIR. 26 BY MR. CLARKE: 27 Q I'D LIKE TO NOW TURN YOUR ATTENTION, IF I 28 COULD, DETECTIVE HERGENROEATHER, TO DETECTIVE TERRY 299 1 TORGERSEN. 2 FIRST OF ALL, ARE YOU FAMILIAR WITH HIM? 3 A YES, I AM. 4 Q DO YOU KNOW HOW HIS LAST NAME IS SPELLED? 5 A I COULD LOOK AT THESE NOTES AND THEY WOULD 6 TELL ME. 7 Q DO YOU KNOW HOW HIS LAST NAME IS SPELLED? 8 THE COURT: WE HAVE AN ARRANGEMENT FOR THAT 9 ANYWAY. 10 MR. CLARKE: I UNDERSTAND, YOUR HONOR. 11 BY MR. CLARKE: 12 Q IF YOU COULD, DETECTIVE HERGENROEATHER, 13 COULD YOU TELL US WHEN IF AT ALL YOU HAD A 14 CONVERSATION WITH DETECTIVE TORGERSEN ABOUT TWIN 15 PEAK'S CLEANERS? 16 A WHEN THE WARRANT WAS BEING WRITTEN, AND 17 ALSO ON MARCH 7TH AND 8TH. 18 Q IF I COULD TAKE YOUR ATTENTION OR DIRECT 19 YOUR ATTENTION TO MARCH 7TH AND 8TH. YOU HAD A 20 CONVERSATION WITH DETECTIVE TORGERSEN AT THAT TIME? 21 A YES, I DID. 22 Q IN PARTICULAR, DID THAT CONVERSATION DEAL 23 WITH ANY ACTIONS HE TOOK TOWARDS OBTAINING ITEMS 24 FROM THE TWIN PEAK'S CLEANERS? 25 A YES. 26 Q WHAT DID HE TELL YOU? 27 A HE TOLD ME THAT HE HAD GONE THERE ON 28 FEBRUARY 6TH AND TALKED TO JULIE REGARDING CLOTHING. 300 1 HE RETURNED ON