State of California v. Douglas S. Mouser
County of Stanislaus, Case No. 139818
October 19, 1999

No. 139818

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October 19, 1999 - 9:35 a.m.



RICK DISTASO and BIRGIT FLADAGER, Deputies District Attorney, appeared as counsel for the People.

RICHARD HERMAN, Attorney at Law, appeared as counsel for the Defendant.


BY MR. HERMAN: Q. You did some work in the National Center for Analysis of Violent Crime; is that correct?

A. I attended my police fellowship there, yes, sir.

Q. That's an FBI-sponsored situation?

A. Yes, sir.

Q. You are a peace officer.

A. Yes, sir.

Q. All your working life, you have been a peace officer.

A. Yes, sir.

Q. And all of the testimony that you have ever given in court has been as a peace officer.

A. Yes, sir.

Q. The only people you have ever testified for is the prosecution.

A. No, sir.

Q. You have testified for the defense in a homicide?

A. NO, sir.

Q. Have you ever testified for the defense in a violent crime?

A. NO, sir.

Q. Testified for some Board of Education thing, as I remember.

A. Yes, sir.

Q. Other than that, have you ever testified for the defense?

A. I have not been asked.

Q. Have you ever testified for the defense, whether God asked you or anybody asked you --

MS. FLADAGER: Objection, Your Honor.

MR. HERMAN: Q. The question is real simple, sir. Have you ever testified for the defense --

THE COURT: That's overly argumentative.

MR. HERMAN: I will rephrase it.

Q. Have you, sir, ever testified for the defense?

A. No, sir.

Q. In fact, it would be illegal for you to testify for the defense as peace officer.

A. I am not aware of any law that would prohibit me, sir.

Q. You mean, if I called you up and asked you to testify for us, you could do it, you could take work outside the area that you are working in now and testify for the defense?

A. No, sir. I could not take work as a private consultant, no, sir, I could not.

Q. Then bow could you testify for me if I asked you?

A. Issue me a subpoena.

Q. But if you had no interest in the case and I needed your expert opinion, you could not testify for me; that's correct?

A. That's correct. I would not be able to act as a private consultant for the defense --

Q. Exactly.

A. -- as a member of the state law enforcement division in South Carolina.

Q. Right.

But you can act as a law -- you can act as a consultant to any and all police agencies that your boss allows you to.

A. In essence, that's correct, yes, sir.

Q. So, in essence, your whole career has been testifying and working for the prosecution.

A. Yes, sir.

Q. And the question that you usually ask -- know a man named -- I am sorry. Withdraw that.

A Sarafik, Safarik, works for the FBI?

A. Are you referring to Special Agent Mark Safarik, sir?

Q. Safarik, yes.

A. Yes, sir, I do.

Q. He states in a newspaper article what risk level that -- the question that they are trying to answer is what risk level the victim is at; is that correct?

Is that the normal question that you are asked?

A. I don't know what news article you're referring to.

Q. Leaving that alone, if he states that, would you agree that that's what normally -- one of the things you are trying to do is decide what risk level someone is at as a starting point.

A. Generally speaking, that's part of the analysis, yes, sir, the risk level of a victim.

Q. And that tells you how many people have access to the victim and that risk level.

A. Yes, sir.

Q. Now, that risk level and access to the victim relates to family, friends and boys who one calls friends or boyfriends; would that be correct?

A. Are you referring to -- excuse me.

Are you referring to the article that Mr. Safarik was referring to --

Q. No. No. I have moved on.

A. I am sorry, sir.

Q. When you're referring to looking at what you want to look at risk level, one of the things you look at is interpersonal family relationships, correct?

A. That's part of it, yes, sir.

Q. You look at social history, correct?

A. That's part of it, yes, sir.

Q. And part of social history is what is her interaction with both her girlfriends, females in her life and males in her life.

A. Yes, sir.

Q. So it's important for you to understand, in order to assess relationship, what the female -- who the females are in her life and how they relate to her and who the males who are not family members in her life and how they relate to her; is that correct?

A. It would be part of it, yes, sir.

Q. Right. It's part and parcel.

So that you want to know her boyfriends.

A. Is that a question, sir?

Q. Yes.

A. Yes, sir, you would.

Q. Would you want to know her boyfriend's background?

A. Yes, sir.

Q. Would you want to know her --

MS. FLADAGER: Objection, Your Honor. I am concerned. like to approach real briefly, if I could.

THE COURT: Why don't we cover this at our lunch break. We will deal with it then.

MR. HERMAN: Q. Would you want to know the family's criminal history?

A. The victim's family?

Q. Yes.

A. Yes, sir.

Q. Would you want to know the boyfriend's criminal history?

A. Yes, sir.

So you would want to know whether any of the boyfriends in her family had histories of possibly being sexual predators.

A. Yes, sir.

Q. Now, we have testimony she had three boyfriends that she dealt with.

MS. FLADAGER: Objection. Misstates the evidence.

THE COURT: Sustained.

MR. HERMAN: Q. She had three boys that she had dealt with in her life, one was Eric Gonzales; Shannon Robinson, who called himself also Shane; and Brian Hair, who called himself Brian Anderson.

Would the fact that a boy gave girls wrong names have any impact on --

A. Would depend on the circumstances, sir.

Q. So if she went to a place and a guy gave her a false name rather than his real name, that would be a factor in your analysis, not a determining factor, but it would be one of the straws that you would deal with in dealing with her social history.

A. It would be one of the factors in the social history, that's correct.

Q. Now, isn't it also a factor in her social history the age appropriateness of the boys she relates to?

A. Yes, sir.

Q. Now, is it not true that, if she was 13 and was talking to, dealing with and spending time in one form or another with somebody who was 20, that would be age inappropriate?

A. In my opinion, yes, sir.

Q. Correct.

And how about 197 Would that be age inappropriate for a 13, just turned 14-year-old girl?

A. Speaking personally, yes, sir.

Q. How about 18, out of school, working or not working?

A. A personal opinion, yes, sir.

Q. And age inappropriateness, as to her interpersonal relationships with boys in her life would be a factor that you would have to deal with in making your analysis.

A. You would have to evaluate it in the overall picture, yes, sir.

Q. Now, did the police give you any information about the -- about her boys that she was dealing with?

A. As I recall, the information that I was provided was that she was interested in boys and that the majority of the boys, if not all the boys that she was interested in, were older than she was.

Q. How much older?

A. Late teens, early twenties.

Q. Then, in your terms, then, the boys -- the information you were given was that the boys she was dealing with were age inappropriate for her.

A. Yes, sir.

Q. Did you ever get the criminal histories of any of these boys?

A. I did not personally do a criminal history check on any of these individuals, but I am confident that the conversation came up with the investigators as to the backgrounds of these individuals.

Q. Do you have specific knowledge of that?

A. Just my memory, sir.

Q. What was the conversation about?

MS. FLADAGER: Objection. Vague. Relevance.

THE COURT: I'd like to defer that until after our break is over.

MR. HERMAN: Q. Did you ever ask for criminal histories of the boys in her social circle? The answer is either yes or no. You either did ask for them or you didn't ask for them?

A. Sir, I am afraid I can't give you a total honest answer if I just leave it to yes or no.

Q. Well, the question calls for a yes or no answer.

Do you have -- did they give you criminal histories of those boys? I will switch the question.

Did anybody in the Sheriff's Department give you criminal history of Brian Hair?

A. As the question you put it that way, no, sir.

Q. Did anybody give you a criminal history of Eric Gonzales?

A. As you put it that way, no, sir.

Q. Did anybody ever give you a criminal history of Shannon Robinson?

A. As you state the question, no, sir.

Q. But you were given a packet of information of police reports that related to the district where she lived; is that correct?

A. I believe so, yes, sir.

Q. And why were you given those police reports?

A. Part of the evaluation is to determine are there other similar crimes that have been reported, as you put in the district. I would use the term "neighborhood."

Q. Okay, neighborhood?

A. Of any other reports of residential rapes, occupied dwellings being burglarized, home invasion robberies, sexual assaults, window peepers, and the like.

Q. You wrote a letter to Ms. Weidman of February 25th, 1998, outlining the information that you had used to rely on for your preliminary hearing testimony. Do you remember that?

A. Yes, sir.

Q. And in it, you outline incident reports of about 28 some odd incidents, approximately; is that correct?

A. Is that what the letter says?

Q. Well, it has a list. You can count them, but it's over 20.

A. Okay.

Q. And approximately 12 MPD police reports. You looked at those, did you not?

A. Yes, sir.

Q. When did you testify at the preliminary hearing? DO you remember?

A. I don't recall the date, sir.

Q. Do you remember the year?

A. 1998.

Q. At any rate, at that time, if you wanted to, you had the capacity to get the criminal histories of Brian Hair, did you not?

A. At that time, yes, sir.

Q. Why didn't you ask for it?

MS. FLADAGER: Objection, Your Honor. I think it's -- it's misstating his prior testimony.

THE COURT: I'm going to sustain the objection. We can defer this area until after we've had a chance to discuss this.

MR. HERMAN: Q. If her boyfriends had histories of sexual violence, would it not have impinged upon your opinion?

A. Yes.

Q. And would you define victimology as the study of informing available relating to a victim?

A. Generally speaking, yes, sir.

Q. And you would agree that the purpose of victimology to establish the risk that a victim's overall lifestyle places them in regards to being the victim of a particular is type of crime; isn't that true?

A. Generally speaking, yes, sir.

Q. What is "generally speaking"? It seems like cops speak to me -- I'm trying to understand that. Is it either true or is it not true? Do you agree or don't agree?

FLADAGER: Objection. Argumentative and compound.

COURT: I'll sustain the objection.

HERMAN: Q. Do you agree with that statement, sir?

A. Yes, sir, I do.

Q. Okay. Thank you.

Would you agree that one of the purposes of victimology is to establish the risk that a victim's circumstances place them in in regards to being the victim of a particular type of crime? Would you agree to that statement?

A. Yes.

Q. And would you degree that one of the purposes of victimology is to establish the risk that the victim's circumstances place them in in regards to being a victim of a particular type of crime?

MS. FLADAGER: Objection. Asked and answered.

MR. HERMAN: Quite so.

THE COURT: That is the same.

MR. HERMAN: It is the same question.

THE COURT: I couldn't quite tell, so we will call it withdrawn.

MR. HERMAN: Withdraw. Somehow it got typed twice.

Q. What type of victim characteristics or information, general, would lead you to believe that a victim's lifestyle places them in a higher risk of being a victim of a violent crime?

A. Are you asking for the risk factors, sir?

Q. Yes. What type of victim characteristics and information, in general, would lead you to believe that a victim's lifestyle places them at a higher risk of being a victim of a crime? And obviously this child is not a prostitute, so let's talk about something other than being a prostitute.

MS. FLADAGER: Objection, Your Honor. Vague as terms -- are we talking about this particular victim or victims in general?

MR. HERMAN: Victims in general.

THE WITNESS: Well, sir, I would have to ask you, are you referring to - when you say "a particular crime," are you talking about a violent --

MR. HERMAN: Q. A risk of violence.

A. Violent crime?

Q. Yes.

A. By people Close to them or strangers?

Q. Generally speaking, first I'd like a general answer, then we would go to specifics.

So the question is, what type of characteristics or information in general would lead you to believe a victim's lifestyle places them in a higher risk of being the victim of violent crime? You have testified on direct the concept of a prostitute with the multitudinous level of victim -- of individuals in her life. So I'm asking you other information, general characteristics and information in general.

A. In general, individuals who are involved in criminal enterprises, individuals who are sexually promiscuous and take strangers and go off with strangers, either in a vehicle, a darkened parking lot, a residence, a hotel, the victim's or the stranger's residence. People who are involved in drug trafficking. People whose employment places them alone in situations in high risk areas. People

who hitchhike. People who remain in volatile relationships with a history of interpersonal violence. Generally speaking, sir.

Q. You mentioned drug trafficking. What if someone else in the home was drug trafficking?

A. It would --

Q. Would that make everyone in the home vulnerable?

A. It would depend on the level of the trafficking, and what type of drugs and what type of criminal enterprise the one person in the home was engaging in and at what level.

Q. But drug trafficking in -- somebody in the house is a factor that relates to a higher risk of an individual?

A. As I explained, sir, it depends on the type of drug, the level of involvement in the criminal enterprise, the volume of sales, and the type of the criminal organization involved.

Q. Okay. If there are no drugs dealing from the house or anybody in the house, the risk level is zero; correct?

A. I would agree, sir.

Q. In relation to drugs. And if they're dealing in pounds, in kilograms, and there are tens of hundreds of thousands of dollars, on a scale of one to i00, the risk level might be 85; correct?

A. I would agree, sir.

Q. So if there is drug traffic in the house, the risk is higher than zero? Period?

A. As you put the question, yes, sir, it's higher than zero.

Q. Right. So, by definition, in the house, it is an increase in if there's drug traffic the risk?

A. It is higher than zero, yes, sir.

Q. Right. Now, if somebody's life is as a result of the drug trafficking, threatened, does that now increase risk? Higher?

A. As you state your hypothetical, yes, sir.

THE COURT: Mr. Herman, this looks like maybe a good point go ahead and take our lunch break. We will give to the jury some bonus time on their lunch and we will stay behind here and resolve some issues.

Please keep in mind the admonition I gave you before. Don't discuss the case amongst yourselves or with anyone else, don't form or express any opinions, don't talk about the case with other jurors or anybody else.

We will see you back here at 1:30. We will resume the examination, then, at that time.

(Whereupon the following proceedings were had out of the presence of the jury:)

THE COURT: Okay. I guess we are still in session outside the jurors' presence here. I wanted to revisit the issue concerning the -- there was some criminal history of the three gentlemen involved that we reviewed on the motions in limine. Wasn't quite sure where we were going.

Of course, the ruling was, before we got into any prior criminal history, to have that reviewed by the Court first if it was now relevant. Looking back at my notes, it looks like Brian Hair had a felony grand theft and false information to a police officer as a misdemeanor.

MR. HERMAN: Brian Hair also has -- is a 290 registrant. Brian Hair also has a series of police reports and reports that we have done, given to the District Attorney that show significant level of predator activity.

THE COURT: I don't recall any of that being discussed at a motion in limine.

MR. DISTASO: NO, we talked about that, Your Honor, misdemeanor sexual battery. The Court was going to allow that as a moral turp.


MR. HERMAN: We have a great deal of other information of prior bad acts, of rape and forced oral copulation by Brian Hair.

THE COURT: Let's see. Eric Gonzales has a juvenile felony conviction.

MR. HERMAN: He had a juvenile sexual felony conviction with a young girl.

THE COURT: Didn't get the 290 status down in my notes for Brian Hair.

That was based on a misdemeanor 243?

MR. DISTASO: It was, Your Honor, 243.4(d).

MR. HERMAN: The facts of that particular case are quite interesting as it relates to this case in terms of blunt force trauma.

THE COURT: Okay. What questions, then, did you want to go into concerning what's up with Mr. Hair that were being objected to by the People?

MR. HERMAN: I would like and I believe that - I am sorry, sir. I don't know what proper title to call you. Profiler or detective?

THE WITNESS: My official title is special agent.

MR. HERMAN: Special agent. Thank you.

I believe that Special Agent Prodan's opinions may change --

THE COURT: Without getting into the argument, I wanted to know what questions you wanted to ask.

MR. HERMAN: The questions I wanted to ask is that, if he had information on Brian Hair's prior sexual activity, would that help him in changing his opinion.

THE COURT: Okay. I think --

MR. HERMAN: Number one, we did ask that and the answer --


MR. HERMAN: Then I would like to ask him about the specific criminal sexual behavior that we have specific knowledge of.

THE COURT: I don't want to cut you off.

MR. HERMAN: That's what I want to ask him about.

THE COURT: Hang on a second. We have only got -- I am looking for something more concrete, like questions about the 243(b) (sic).

MR. HERMAN: We have information about oral copulation. We have --

THE COURT: We need to talk in terms of police reports. You have a number of police reports.

MR. HERMAN: We have, A, police reports; and, B, we have reports of Mr. Maxwell that were turned over to the District Attorney of witnesses that we interviewed.

THE COURT: How many police reports are you talking about?

MR. HERMAN: Probably about four or five. I have a file somewhere.

THE COURT: And you want to -- the question you want to ask is, did he consider the contents of those police reports?

MR. HERMAN: Yes, Sir.

THE COURT: By way of some advance notice, let me find out what the answer to that question would be.

THE WITNESS: Are we referring to the reports about the similar crimes, crimes in the neighborhood?

MR. HERMAN: No, Sir.

THE COURT: Where Brian Hair was a suspect?

MR. HERMAN: Where Brian Hair was a suspect. Where there were complaints about rape in one of them, that was a year-old complaint of rape where he was -- where he hits a young lady in the face and causes a similar injury to the injury that is indicative in this case on Genna Gamble and that he pleads to a sexual battery.

THE COURT: I am not meaning to cut you off, but obviously throwing in things that are not in that police report.

MR. HERMAN: Yes, those things are in that police report. Excuse me.

THE COURT: Let me hear the argument.

MR. HERMAN: Excuse me. Those are things in the police report.

THE COURT: In the police report it says this person was hit in the face similar to the way Genna Gamble was?

MR. HERMAN: No, you are quite right. I do apologize. There are indications in the report, indications of a rape, indications of a battery, there is a series of other indications.

THE COURT: Are any of these reports ringing a bell with you, sir?

THE WITNESS: If I may, Your Honor, by way of not giving a relatively long answer, I don't recall having any investigative reports from any other crimes --


THE WITNESS: -- to compare for points of similarity with this particular case.

THE COURT: Okay. That includes the 243(b), misdemeanor, that Mr. Hair apparently was convicted of.

THE WITNESS: Your Honor, that's correct. I don't recall anyone providing me, either by the prosecution or by the defense, investigative materials of other crimes to determine points of similarity with this crime.

THE COURT: Okay. Or criminal background, what we call CI&I normally, just the fact of a conviction.

THE WITNESS: Just the fact of a conviction would be insufficient information, because you don't have the details of the event, Your Donor. All you have is a Department of Justice CI&I record saying that this person has been convicted, but it doesn't give you the details. So without those details, it would be impossible to do a comparison.

THE COURT: Would that be a factor you would take into account in determining whether or not she is a high risk or low risk person?

THE WITNESS: It would be a factor, be a very small one. Again, you don't know the circumstances involving the arresting offense.

MR. HERMAN: Your Honor, I have in my hand a copy of all of the police reports and such that Special Investigator Prodan was given, as far as I understand it, in terms of the discovery that I have been given. But there are no reports on Brian Hair's criminal arrests that I know of that he has been given.

THE COURT: Okay. Let me find out what the People's position is on the basis for his opinion questions here.

MS. FLADAGER: Okay. I have a couple of concerns here. One of them is that the information provided to the agent that he received from the investigators and from the defendant's family, be that as it may, was Genna was getting interested in boys, her girlfriend -- she wasn't dating. She had boyfriends she talked to on the phone, boyfriends she talked to at Camelot. That's pretty much it.

Now, a couple of these guys, two of them, do have some criminal history, not particularly nice guys. Apparently spent some time at Camelot.

But trying to bring out the initial allegations and saying, oh, well, there is this police report of rape by Brian Hair when, if you look at it, yeah, that's how it came in. Then when they interviewed the girl, "He really wanted sex and he was pushing me in terms of he really was insistent so I agreed." So then it comes in as a rape.

So I am very concerned about what could be mischaracterization in terms of let's paint these guys in such a fashion through this witness rather than -- I don't know how else we're going to get into it. If they want to call -- if he wants to call these other victims to try to show prior bad acts, even that I don't think is admissible.

If he wants to impeach these defendants -- not defendants, these witnesses when they testify, what their prior convictions, we have talked about that. That certainly the Court has indicated --

THE COURT: That's not what we are with dealing here.


THE COURT: This is simply the basis for his opinion.

MR. HERMAN: This is a tremendous amount of information, all right, that this witness has not been given by the Sheriff's Department or any of the agencies at this point in time or any other point in time that I know of.

One aspect of it is the police reports of the people who were specifically mentioned by other people as her boyfriends. Also, mentioned in her diary, all right, mentioned in a whole series of police reports that I believe, for whatever reason, Special Agent Prodan was not privy to.

There are whole -- just the very nature of Ron Hughes, Olan Bruce and Yacoub Gilbert's identifications of Genna Gamble being out of the home were withheld from him. We get into that later.

THE COURT: That's really not the issue I am trying to decide before lunch.

MR. HERMAN: I understand that. It's part and parcel of the same thing.


THE COURT: Nobody has objected to that yet. Let's wait until that happens.

MR. HERMAN: This information wasn't given to him either.

THE COURT: Let's don't get too excited here. We haven't even talked about that. No one has said you can't do it.

What I want are an answer to the specific questions I asked here. The question you are raising, can he be asked about Brian Hair's 243 misdemeanor. I have already ruled that would come in for purposes of impeachment if he were to testify.

Both sides believe he is going to be testifying I understand; is that correct?

MS. FLADAGER: At this point I don't know that he will be, no, Your Honor.

THE COURT: Do you intend to call him?

MR. HERMAN: He is on my list. He is subpoenaed.

THE COURT: Do you intend to call him?

MR. HERMAN: More than likely, yes. And I intend -- and -- but I don't think that's the issue, Your Honor. The issue is is that --

THE COURT: If they are objecting to him --

MR. HERMAN: Special Agent Prodan has given an opinion based upon a narrow piece of information. This is information that is germane to his opinion --

THE COURT: Mr. Herman?

MR. HERMAN: -- that I am trying to ask him about.

THE COURT: Mr. Herman, I just wanted to have this conference to discuss some very narrow issues. If other issues, we will deal with them as they come up.

MR. HERMAN: I am only addressing this very narrow issue.

THE COURT: On the 243(b).

MR. DISTASO: It's (d), Your Honor, (d), as in dog.


I don't see any problem with you asking the special agent if he has reviewed a criminal history and, if there was such and such a violation, would that affect his opinion. I don't see any problem with you asking that. So, in that question I would --

MR. HERMAN: Can I ask him to read the police report?

THE COURT: If you have got those four or five police reports, in fact, if you have got them here right now, if you want to give them to him before lunch, it will speed things up.

You can ask him after reading those police reports, he has ever considered them before, if he had considered them before, if that would change his opinions, so on, so forth. You can certainly do that.

In terms of characterizing what's in the police reports, I am not comfortable with that. In terms of hypothetical facts, obviously you can ask him a hypothetical, if you had information that such and such was the case, would that change your opinion. As long as the hypothetical facts are within the range of facts that could be proved by this case, then that certainly is appropriate.

If those hypotheticals involve too many argumentative facts that are not necessarily within the range of things that could be proved in this trial, then that I wouldn't allow. So these are the guidelines as I see it.

It's noon right now, so why don't we go ahead and take our lunch recess and go to lunch than spending the whole lunch hour.

Do we need to come back early at 1:15, or can we go ahead and proceed at 1:307

MR. HERMAN: Can we come back at 1:15? I don't have these reports, but I will give -- I will give Special Agent Prodan the laboratory report on the crime scene reconstruction of John Thornton and ask him to read it.

THE COURT: Yeah, any -- obviously I don't want to take a big long break for him to read volumes of documents while the jury's here. Anything you want to ask him if it will change his opinion, it will be best to give it to him right now.

MR. HERMAN: I am sure we have it, but Marty has gone and she is my holder of the knowledge of where all of this information is. But I will be here at 1:15 --

THE COURT: Actually you don't need me to be here. He can be back at 1:00.

MR. HERMAN: I can be back at 1:00 with this information.

THE COURT: Just give it to him then or at 12:30 or whatever. We will be back here in court at 1:30 and resume with the trial at that time.

(Whereupon court recessed at 12:04 p.m.)

THE COURT: Okay, we're back in session again on People versus Mouser with the attorneys, and the jury, the alternates, the parties, the witness is back on the stand. And where we left off, Mr. Herman, you were questioning.

MR. HERMAN: Q. You're familiar with Vincent and Dominick DeMaio?

A. Yes, sir.

Q. Right. Forensic pathology?

A. Yes, sir.

Q. Now, in that book on 142, when they discuss ligature strangulation, they tell us, "Most ligature strangulations are homicide. Women are more often victims than men, with the most common motive as rape."

You remember that, sir?

A. Which book are you referring to, sir?

Q. Forensic pathology, Vincent J. DeMaio, Suzanna E. Dana?

A. Are you reading from the book, sir?

Q. Yes.

A. Okay. I don't have an independent recollection if that's what the sentence says.

(The witness refers to a book.) Yes, sir, that's what it says.

Q. Good.

So the basic concept with ligature strangulation is the most common motivation is rape, and, therefore, if there are no signs of rape, it would not --

I'll withdraw that.

This talking about rape and crime, do we ever have murder of victims that are sexual crimes where the rape is incomplete?

A. Yes, sir.

Q. Okay. So that there's a start of a rape, the victim puts up a fight, and then the victim dies in some form of violent manner?

A. There are cases like that, yes, sir.

Q. Right. So the fact that there is no semen on the victim doesn't necessarily mean it wasn't an attempted rape gone bad?

A. That's correct.

Q. So that's a possibility when you have someone found naked and with a ligature strangulation, the first concept is it's a sexual crime with a woman, basically rape. That's what DeMaio tells us. Then we work backward and we extract from there to see why it is or is not rape; correct?

A. Essentially, yes, sir.

Q. And when we find no evidence of sexual physical assault, that takes us a little off the concept of rape?

A. I don't know what you mean by - by physical assault, sir. Are you referring to genital trauma?

Q. Genital trauma. If there's no genital trauma, anal trauma, there's no evidence of semen?

A. And your question is --

Q. That would take us off somewhat the idea of the ligature strangulation being rape?

A. That's correct.

Q. How, it doesn't mean that the ligature strangulation wasn't part of an attempted rape?

A. That may also be correct.

Q. We know Genna, from your telling us before, was a child of some strength and some resistant will; that's correct?

A. That's how she was described.

Q. Yes, so that's the information that you have as being described to you; correct?

A. Correct.

Q. Did you ever go to the crime scene?

A. NO, sir.

Q. Did you ever go to the house?

A. No, sir.

Q. Do you know what the house looks like?

A. I doubt seriously if I could pick it out.

Q. Do you know what kind of a neighborhood it's in?

A. Only as described to me by the investigators.

Q. Other than the -- you only know it, then, in the general terms of being a middle class neighborhood. You don't know whether it's on a busy thoroughfare or a small street or residential street or a street -- house next to a shopping -- strip shop center or in a cul-de-sac? Do you know any of those things?

A. Yes, sir.

Q. What do you know?

A. I understand it's a middle class neighborhood, a relatively quiet residential street that I believe was a cul-de-sac or, at the very least, not a through thoroughfare.

Q. And you say -- "at the very least, not a through thoroughfare," what do you mean by that?


A. A major street used for traffic going from one location to the other, such as a four-lane divided highway or a major artery through a residential area that moves from housing tract to another.

Q. So it could have been on a street like that, their hom?

A. No, sir, that's my understanding, it is not.

Q. It is not. What's your understanding, then?

FLADAGER: Objection. Asked and answered.

THE COURT: I think that is what he just said, Mr. Herman. Maybe rephrase it.

MR. HERMAN: Q. Do you know it to be a cul-de-sac?

A. That's my recollection, sir.

Q. All right. Do you know how big the cul-de-sac

A. No sir.

Q. Have you ever seen pictures of the cul-de-sac?

A. I believe so.

Q. How many pictures did you see?

A. I would not be able to tell you how many.

Q. When did you see them?

A. During the consultation with the investigators.

Q. How long ago was that?

A. At least two years.

Q. At that time, you wrote a report, did you not?

A. Yes, sir.

Q. And from that time to this, did you have any consultation with the investigators?

A. No, sir.

Q. You had not spoke to them about the case?

A. In general terms.

Q. I'm sorry, what do you mean, "in general terms"?

A. Dates, locations for appearance at trial.

Q. So you spent some time with them so they could refresh your memory as to the incidents in this case?

A. No, sir.

Q. Then how would you describe it?

A. I did, sir. Dates and locations as to when to appear for trial.

Q. That's all?

A. Yes, sir.

Q. Nothing else?

A. Not with the investigators, no.

Q. Then with anyone else?

A. Yes.

Q. Who?

A. Representatives from the District Attorney's Office.

Q. Who was that?

A. The lead prosecutor, Birgit Fladager.

Q. When did you spend time with Miss Fladager?

A. Approximately two hours last evening.

Q. And what did you go over?

A. My report, information involving some questions that she had about my testimony, and other questions as to an update on my training, education and experience.

Q. Now -- now, you had a significant discussion with the homicide team prior to the prelim, did you not?

A. Yes, sir. I had several conversations before prelim.

Q. And at that time they told you that Mr. Mouser was the person who was the perpetrator of the crime, and you told them you didn't really want to hear that?

MS. FLADAGER: Objection. Vague and misstates the evidence, especially in time frame.

THE COURT: It's not framed as a question, so you need to try again on that.

MR. HERMAN: Q. Isn't it true that, prior to the preliminary hearing, in your discussions with the police, they pointed out Doug Mouser as being the perpetrator of the crime and you told them you really didn't want to hear that for your analysis?

A. The time line is a little off, sir. We had a conversation, there was a case consultation, but yes, before preliminary hearing, I was told that Mr. Mouser was charged with the crime.

Q. I understand that. But prior to that, you told more than he was charged with the crime. I'll leave that.

Now, you said you saw a number of pictures of the crime scene. Do you remember how many?

A. No, sir, I don't have the exact number.

Q. Well, if I told you your report says 18, would that refresh your memory?

A. If that's what my report says, yes, sir.

Q. And you saw 10 color autopsy photos and one eight by-ten picture of the victim. Do you remember that?

A. Yes, sir.

Q. Do you know how many pictures of the crime scene were taken?

A. NO, sir, I don't.

Q. Well, if I told you there were in excess of 30, would you have wanted to see all of those?

A. Yes, sir.

Q. And the autopsy, if I told you there was in excess of 30 of those, would you want to have seen all of those?

A. Yes, sir.

Q. And if you didn't see all of the pictures that were available of the autopsy and you didn't see all of the pictures that were available of the crime scene, that would have an effect on your opinion, would it not?

A. It might, sir.

Q. Now, can you explain what is the scientific method?

A. My general understanding is that you postulate a theory, you do experiments to recreate the theory or to prove or disprove the theory.

Q. Anything more you want to add to that definition?

A. No, sir.

Q. Is it not true that you must be, in order to form your opinion, protected against the investigators, assumptions?

MS. FLADAGER: Objection. Vague.

THE COURT: Do you understand the question? THE WITNESS: I think I do, Your Honor.

THE COURT: Go ahead.

I will allow you to answer.

THE WITNESS: Yes, sir, because on occasions, investigators will be so focused that they unintentionally discount other possibilities.

MR. HERMAN: Q. And would an example of that be they only give you information that relates to the crime scene, the house, and not give you any information as to the criminal history of the boys in the victim's social life?

A. Would that be an example of their functions?

Q. Of their focusing on something and not giving you enough information?

A. Well, certainly the information about the residence is important. I would have to couch my answer as to the criminal history of the boyfriends, it would depend on what that history is, sir.

Q. Well, what if it involved illegal sexual activities such as rape and oral copulation?

A. I would have to ask, under what circumstances did the rape and oral copulation occur?

Q. Do you mean that there is a legal rape and an okay rape and a non okay rape?

A. No, sir. I did not say that.

Q. So that is it not interesting to you that one of her boyfriends may have been a rapist?

A. It is interesting, but to be -- to make a proper evaluation, the question would be, what were the circumstances of the rape and what kind of a rapist was the boyfriend?

Q. And what if he forced somebody to orally copulate

A. How did the force occur? What was the level of violence? Who was the victim? Would be questions that I would ask.

Q. But would it not be good for you to have the information first before you ask those questions, like, "Here are her boyfriends. Here are their criminal history."

Isn't that what the police are supposed to give you so that you can make a proper profile evaluation?

A. Well, first of all, sir, I did not do a profile evaluation. Second of all, yes, if I had information that associates of the victim had a criminal history and if they said boyfriend, husband, mother, next-door neighbor has a history for rape, my next question would be, what kind of rape is it?

Q. But if you don't have that information, you can't ask that next question, can you?

A. No, sir, I can't.

Q. So the fact that you were not given that information about the criminal sexual history of her boyfriends is a hole in your analysis.

A. It may be, depending on what the information is.

Q. That's right. It may be; is that correct?

A. Yes, sir.

Q. And don't you want that information before you come to your full opinion and testify in court?

A. Yes, sir.

Q. Now, prior to taking the stand, had you ever read or been in contact with a crime scene reconstructionist in this case?

A. I know I had two conversations with two criminalists with the California Department of Justice Bureau of Forensic Services. I could not tell you whether they classified themselves as crime scene reconstruction specialists.

Q. So then the answer is you don't know or no, but it can't be yes; isn't that true?

MS. FLADAGER: Objection. Argumentative. He has answered the question as he can.

THE COURT: It's sustained.

MR. HERMAN: Q. Do you know if it was a John Yoshida?

A. Yes, sir, I do.

Q. Did he tell you he was doing a crime scene reconstruction?

A. I don't recall if he used those terms, sir.

Q. Did he use any terms that are in and around those terms, that you -- whatever terms they were that registered the bells in your head, crime scene reconstruction.

We want to play games, we will play games.

THE COURT: Mr. Herman, do we need to take a break?


THE COURT: You need to calm down.

MR. HERMAN: I would ask the Court to instruct the witness to answer the question.

THE COURT: I think he has been doing his best, if you are asking me. Just need to calm down some. If we need to take a break, we will do it. Let's back up.

MR. HERMAN: Q. Did John Yoshida tell you he was doing a crime scene reconstruction?

A. I don't recall if he did, sir.

Q. Did you read his material?

A. Yes, I did.

Q. Did you read it all?

A. I believe so.

Q. Did you see crime scene reconstruction in his material?

A. I don't recall, sir.

Q. Well, do you have it?

A. No, sir, I don't.

Q. You didn't bring the material you were given to review so that you could discuss it with us here in court.

A. I don't have that material available to me, sir.

Q. It was given to you?

A. It was given me. Also to the State Department of Justice material, that material remained at the Department of Justice.

Q. When you came here today, they didn't give you a duplicate copy of it?

A. No, sir.

Q. So the only thing you have is the tenuousness of your memory?

MS. FLADAGER: Objection, Your Honor.

THE COURT: Sustained.

MR. HERMAN: Q. The only thing you have, then, is your memory.

A. Yes, sir.

Q. Now, Katina Beasley Reece (sic), did you read all of her material?

A. I don't recognize the name, sir.

Q. Katina Beasley, do you recognize that name?

A. No, sir, I don't.

Q. You don't know if you saw or read any of her material.

A. I don't recall.

Q. You don't recall you read it, yes, or you don't recall you read it, no?

A. I don't recall whether I did or did not read it. I don't recognize the name at this point, sir.

Q. So if you don't recognize the name, would it be safe to say you did not read her material?

MS. FLADAGER: Objection, Your Honor.


MS. FLADAGER: Misstates his testimony.

THE COURT: Sustained.

MR. HERMAN: I am trying to find out what his testimony is, Your Honor. It's - when cops speak, it's difficult for me to get a latch on it.

THE COURT: Mr. Herman, the objection is sustained.

MR. HERMAN: Q. So you don't know whether you spoke to

her or you didn't speak to her; is that correct?

A. I don't recall, sir.

Q. You don't recall what?

A. Speaking or not speaking to her. I do not have an independent recollection that I definitely did not speak with her or that I definitely did speak with her because I don't recognize the name.

Q. What about reading material that was provided by the District Attorney about Katina Beasley?

MS. FLADAGER: Objection. Vague.

THE COURT: Do you understand the question?

THE WITNESS: Yes, Your Honor. I am still in the same position. I don't recognize the name, so I can't give any more answer as to whether I did or did not do something regarding that name.

THE COURT: I will allow the answer to stand.

MR. HERMAN: Q. Do you know if any blood was detected in Mr. Mouser's vehicle?

A. NO, sir, I do not.

Q. Did you ever read a report about whether blood was detected or was not detected in Mr. Mouser's vehicle?

A. I don't recall, sir.

Q. Would it have been important for you to read a report about blood being or not being detected in Mr. Mouser's vehicle?

A. Yes, sir.

Q. You have no recollection of whether blood was found in his vehicle or not?

A. I don't recall, sir.

Q. If blood was found in his vehicle, would it have an effect on your opinion?

A. It might, sir.

Q. If no blood was found in his vehicle, would it have an effect on your opinion?

A. It might, sir.

Q. Well, if no blood was found in his vehicle, what effect would that have on your opinion?

A. It would suggest several possibilities.

Q. Okay. What are the several possibilities that might be suggested to you because of the lack of blood being found - because of no blood being found in Mr. Mouser's vehicle?

A. One possibility is that there was blood and it was - it was not located by the crime scene investigators or the scene investigators examining the vehicle. In other words, it's there, but no one found it.

Second possibility is that it was --

Q. Let's talk about the first possibility. If they went over it with a fine tooth comb, would that still be a possibility, if they were looking for blood, these fine investigators?

A. It would still be a possibility, sir.