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


SUPERIOR COURT OF CALIFORNIA, COUNTY OF STANISLAUS
THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff
vs. DOUGLAS SCOTT MOUSER, Defendant.
No. 139818

--HTML Page 3 of 3--

Before the HONORABLE DONALD E. SHAVER, Judge
October 19, 1999 - 9:35 a.m.
21ST DAY OF JURY TRIAL

TESTIMONY OF MICHAEL JOHN PRODAN

APPEARANCES:

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.

 

Q. Do you know what Akhim's Razor is?

A. Yes, sir.

Q. What's Akhim's Razor?

A. When you have multiple theories, the most simplest one is most likely correct.

Q. Right. So if they found no blood, that's most likely correct, under Akhim's Razor?

A. Under Akhim's Razor, yes.

Q. Next?

A. The other possibility was there was blood in the car, but the car had been cleaned.

Q. Okay.

A. The other possibility is that the person did not suffer any blood-letting injury and therefore no blood was deposited in the vehicle.

The other possibility is that the person did suffer a blood letting injury, but the blood was not transferred to the vehicle for whatever reason.

Q. Okay. Do you know if Genna Gamble suffered a blood letting injury?

A. There was some blunt force trauma to the face. It's possible there may have been minute amounts of blood from those injuries. But there was no cutting or stabbing injuries.

Q. Yes, we know that. So we know there was blunt force injuries.

Now, we know that -- showing you what's been marked as

People's -- Defense O, look at Defense O. DO you recognize that picture, sir?

 

A. Yes, sir.

Q. Tell us about it.

A. Appears to be abrasions and contusions to what appears to be, unless the photograph was reversed, to the victim's right arm and some abrasions to her abdomen.

Q. Okay.

A. I'm sorry, and there's also some injuries, abrasion injuries which looks like to her neck and underneath her chin.

Q. Okay. Now, I'm showing you what has been marked as U. Have you ever seen that picture before?

A. Yes, sir.

Q. Okay. And you want to describe it?

A. It's a picture of the victim, deceased.

Q. When was it taken?

A. I don't know exactly when it was taken, sir.

Q. Didn't they tell you? Didn't the police tell you they showed you that picture when it was taken?

A. Yes, sir. After the body was discovered.

Q. How soon after the body was discovered?

A. My recollection is at or near the scene.

Q. Okay. Showing you what has been marked as Defense J. Recognize this picture?

A. Yes, sir.

Q. What is that?

A. That's a picture of the victim at the location where her body was found.

Q. All right. Is there blood on her face?

A. There's what appears to be a little bit of purging maybe underneath the nose, but not -- it is significantly different than the picture taken there.

Q. Okay. So the blood you call here is purging; correct?

A. Yes, sir.

Q. And it's on the paper bag that was covering her head?

A. May I?

Q. Yes, please.

A. Yes, sir, there's some bloodstains on the right side, the inside of the paper bag.

Q. Now, if Genna purged in the car, would there not be bloodstains in the car?

A. If the victim purged in the car?

Q. Mr. Mouser's car.

A. Any car.

Q. Any car.

A. It's possible that blood would be found in the car, but not necessarily true, not necessarily a direct cause and effect.

Q. So it's possible blood would have been found in the car?

A. It's possible, yes, sir.

Q. And if she had been wrapped in a sheet, blood be found on the sheet?

A. It's possible.

Q. And if I were to tell you there were no blood found in the car, no blood found on the sheet, would that have any effect on your opinion?

A. No, sir.

Q. Now, you used the word "transporting" Genna. Does that mean transporting from here to here or is that only long distances?

A. Neither, sir. It -- when I use the term "transporting the body," it does not mean moving the body from one inch to six inches, and I don't know what you mean by "long distances."

I would consider moving the body from, say, a building to the outside, from outside to the inside of a building, moving it one block, two blocks, five miles, ten miles. But as you described in your movements, moving the body that short of an instance, I would refer to that as a movement of the body, not transporting the body.

Q. Okay. Now, you said the body was transported; is that correct?

A. Yes, sir.

Q. What are the facts that you base that on?

A. Primarily the location where the body was found and the injuries that the victim sustained.

Q. Okay. So the only thing you can tell us is where the body was found and the injuries that the victim sustained led you to believe that this body was transported?

A. Yes, sir.

Q. You've never been to the crime scene, have you?

A. No, sir.

Q. So you don't know how far the body was found from water, do you?

A. Yes, sir, I do.

Q. How far?

A. It's a matter of yards, sir.

Q. How deep was the water?

A. I don't know.

Q. What was across the water?

A. I don't know.

Q. Now, you tell us in your letter that you looked through a copy of Genna's journal.

A. Yes, sir.

Q. Is that correct?

A. If it's in my letter, yes, sir.

Q. Well, I don't know what's in your memory, so I have to --

A. Yes, sir, I did.

Q. I have to - so that is correct?

A. Yes, sir.

Q. Now, do you remember reading, "I met Brian. We kissed. My first French kiss, after I knew him about 20 minutes. Stupid, huh? But I thought he was nice and he was fine. At first he seemed cool, like that night when I talked to him after Camelot. But I would page him and he wouldn't call me back. And a little before I got my pager stolen, so then like late May" -- late May in this child's life, this is reading from August 12th, 1995, would be she was 18 years old at this time "and then like late May, I met him in April, I saw him at Camelot and at first I didn't think it was him. I thought I was crazy or something. But it was him and we walked by him and we looked at each other and stuff and I got pissed and I went and asked his friends if it was really Brian and they said yeah, and so we went and sat, me and my friends, in front of the bike thing and he came and talked to me and asked me if I was mad. I said no. He explained that his pager got stolen, but he had a new one and he gave me the number. So he paged he and some bitch called back and said shit to him, so I decided to give him another chance, and that night I talked to him after Camelot again. And he was being sick and asked me if I was a virgin and I said yes, and if he asked me if he could teach me to fuck. I was, like, no, he will just -- he wanted me to fuck, whatever. After that, he would call me, ask to come over occasionally, and one time I said yeah, after I said no about 20 minutes before, and by that time his girlfriend was over (bitch, ho, hooker, horror, slob, slut, skank, scan). Sorry about that. So I don't talk to him again until he called me a day before graduation, June 8th, and we had a normal conversation. And he had to go and

I never talked to him since and I paged him. Some bitch Darcy calls back, so whatever. I'm too good for him anyway. I never mean -- I meet guys, but it never turns into any kind of relationship. One reason is I'm too guy shy and the other is I'm too picky. My fault, I guess. That's all for now. I'll talk to you tomorrow, hopefully something cool has happened. Bye."

We have a guy who we know is to be approximately 20 years old telling a 13-year old girl he wants to teach her to fuck. Does that relate to the risk relationship of Genna Gamble?

A. Yes, sir, that would be part of it.

Q. That would increase the risk relationship, would it not?

A. Yes, sir.

Q. If you had information that this same boy Brian had been reported as a rapist, that would also increase your risk assessment of Genna Gamble?

A. I would have to ask, what kind of a rapist was he, sir? The fact that he is just a rapist is insufficient information.

Q. Well, tell me what kind of rapists there are. I have to tell you, quite frankly, I only know of one kind, that's a man who forces a woman to have sex vaginal sex. That's the only rapist I know. Then you have laws against forced oral copulation.

What if I told you there is evidence that Brian has forced a girl into forced oral copulation? Would that increase your risk assessment of Genna Gamble because of her relationship to Brian Hair?

A. Would depend on what kind of force was used and who the person was.

When you asked the question --

Q. Well, what kind of force?

MS. FLADAGER: Objection, Your Honor. He keeps trying to answer the question.

THE COURT: Please allow him to finish his answer. GO ahead. You can continue.

MR. HERMAN: Yes, sir.

THE WITNESS: May I go back and answer another question, Your Honor?

THE COURT: Go ahead.

THE WITNESS: When you say that there is only one kind of rapist, sir, you are using it from a legal standpoint, which is correct.

But studying individuals who commit the crime of rape, there are different types of rapists, though they all do roughly the same physical act, they force vaginal intercourse with a woman, they do it in a variety of ways for a variety of reasons; sometimes very simple, sometimes very complex. So to say that a person has a conviction for rape --

MR. HERMAN: Q. I didn't say "conviction."

A. Has an arrest for rape.

Q. Yes.

A. Or has even been accused of rape is insufficient information to say whether or not that particular person being in the same social circle of the victim elevates her risk significantly. Would it be considered? Absolutely.

Q. Would it elevate her risk at all?

A. Again, sir, I would have to know what type of a rapist this person was.

Q. Well, let me ask you this question.

She goes out with one guy who is a nice, quiet guy who goes to church on Sundays, obeys his parents, has never been in a juvenile court and taught well by his teacher; and she goes out by another guy who is accused of oral copulation and rape.

Are they the same evaluation, that you would give them the same score in rising the risk of Genna Gamble?

A. In your hypothetical as you present it, no, sir, I could not.

Q. Right.

We give the rapist/oral copulator a higher risk relationship to Genna Gamble than we would our, quote, choir boy, would we not?

A. I would give it a higher rating, but I would still be very reluctant to say how much of a rating because I don't have enough information as to type of rape --

Q. What information do you need, sir, to make an evaluation of how rape -- how dangerous a rapist is to a 14-year-old girl?

A. I would have to know whether this person has used coercion or intimidation.

Q. And the answer would be yes, this person has used coercion and intimidation for both oral copulation and rape.

A. Has this person used direct physical force or violence?

Q. Yes, this person has used direct physical force and violence.

A. What type of physical force and violence?

Q. A blow to the face.

A. In response to what, sir?

Q. Control.

A. At the very beginning of the rape or was it in the victim's resistance?

Q. What's the difference between the victim's resistance, "I want to fuck you," and the answer is slam in the face?

A. That is a response of the victim's resistance. What did the offender do next?

Q. What did the offender do next?

A. Yes, sir.

Q. The offender (sic) did acquiesce to the physical force and allowed herself to be subjected to Brian Hair's administrations.

MS. FLADAGER: I object to the form of the question.

MR. HERMAN: I am responding to the question I was asked.

THE WITNESS: I asked what the offender's response was, and you said that the victim acquiesced, so --

MR. HERMAN: Q. What the offender did was --

A. After the offender - after the victim resisted, offender's response was what, sir?

Q. You were given a series of reports today, were you not?

A. Yes, sir.

Q. Okay. One of the reports was where the victim called Jennifer P. --

MS. FLADAGER: Your Honor, at this point I would object. We talked about -- I think the ultimate question, which he still hasn't been able to answer, is whether certain things might affect his opinion.

MR. HERMAN: I am trying to respond to the questions of the witness, Your Honor.

THE COURT: At this point I am going to sustain objection to that the last question based on foundation.

Q. Now, when young girls are -- women are raped, is it not uncommon for them not to report the crime?

A. It is not uncommon, that's correct.

Q. Because of a variety of reasons.

A. For a variety of reasons, yes, sir.

Q. One of them is the problem of having to testify in court and the totality of the circumstances of embarrassment and in a sense bearing their soul to the public?

A. That could be one of the reasons, yes, sir.

Q. Now, if Brian Hair was a 290 sexual registrant, would that increase your view of Genna's risk as it relates to her social history?

A. What was the underlying conviction for the registration, sir?

Q. Does the conviction matter or do the facts matter? You as a policeman -- I will ask you this question.

You as a policeman know that, in many cases, what someone is arrested for and what the plea bargain is at the end are sometimes significantly different in order to save a woman or a child embarrassment; isn't that true?

A. Yes, sir.

Q. All right. So then, with that fact in mind, isn't it not more important to know what the reported facts are than what the specific conviction is for for you to do your analysis?

A. That would have been my next question, sir, after what was the conviction, what was the actual facts of the case?

Q. We have an arrest for 288 oral copulation --

MS. FLADAGER: Your Honor, at this point I would again object, same basis.

THE COURT: Going to have to phrase this as a hypothetical, Mr. Herman. Otherwise it's --

MR. HERMAN: -Sure.

Q. If Brian Hair had an arrest for a 288 oral copulation and 288 lewd acts and the victim was a minor, would that have an effect on you -- your opinion?

A. I would have to have more information than that, Sir.

Q. And if he had -- if Brian Hair had an arrest for 288(a) and 289, a child molest, would that have an effect on your opinion?

A. Again, I would have to have more information than what you are giving me now to give an evaluation.

 

(Change of Reporters)

[Pages 117 & 118 missing.]

give you I believe an answer that you were looking for.

Q. So you have to know all this information when there's an issue of whether somebody has raped two or three people and the possibility that they forced oral copulation on other minors and is a sex -- registered sex offender? That isn't enough information for you to evaluate Brian Hair's social history when he -- when the diary of the young child has said, "He wants to fuck me"?

MS. FLADAGER: Your Honor, I'd object.

MR. HERMAN: Q. That's not enough for you, sir?

MS. FLADAGER: Facts not in evidence and that's not a hypothetical.

THE COURT: Doesn't sound like it's phrased in a way it can be responded to --

MR. HERMAN: Q. If you had all of that information that I have just enunciated, that wouldn't be enough information for you to change your risk factor evaluation of Genna Gamble from a low risk to how about a medium risk being associated with Brian Hair?

A. I would still -- I would still rate Genna Gamble as a low risk of becoming a victim of a violent crime by a total stranger, which I testified before.

Q. Yes, sir.

A. Her risk is situational based on her relationships.

Q. Right.

A. Under your -- if I may use the term --

Q. But we have information --

THE COURT: Mr. Herman. Hr. Herman, please let him

[Page 120 missing.]

Q. Right. And if one of the people in Genna's non-total-stranger social life is an accused rapist on a number of occasions and accused oral copulator and is a registered sex offender, this does not increase your view of Genna's lifestyle risk?

A. Under the circumstances when I testify about a total stranger, no, sir, it does not change.

Q. We're not talking about a total stranger. We're talking about somebody in her social circle.

A. And that's what I'm saying all along, is that the individual in this particular case is someone who is in her social circle.

Q. And if she's in a social circle with somebody who has been accused of rape and is a registered sex offender, would not her level of risk rise?

A. And I go back to the question, sir, what kind of a rapist is be?

Q. He's a miserable, stinking, SOB rapist who is a chickenhawk and jumps on young girls --

THE COURT: Mr. Herman. Mr. Herman.

THE WITNESS: Well, sir, I would offer -

THE COURT: Hold on just a second, sir.

I'm going to have to instruct the jury to disregard that display. Mr. Herman is not the one testifying here. I think you've pretty well covered this territory, Mr. Herman, so let's move on to something else.

MR. HERMAN: Q. She's at low risk for a total stranger, we agree; correct?

A. Yes, sir.

Q. And if the type of person I described is in her social setting, does it not make her more than a low risk?

A. No, sir. It's still a low risk, because the idea of risk is based on high risk of being victimized by strangers. That's the purpose of determining risk, sir, is to determine how big the suspect pool is.

Q. Okay. But we have -- the suspect pool is not everybody in the world. Suspect pool also would go to her boyfriends, would it not?

A. That's a possibility, yes, sir.

Q. And if Brian Hair had been described as one of her boyfriends by her girlfriend, he would be in that suspect pool, would he not?

A. It's possible, yes, sir.

Q. And it would be necessary to eliminate him from that suspect pool, would it not, sir, in order to decide who was the killer of Genna Gamble?

A. That would be part of the investigation, yes, sir.

Q. Now, did you ever see the report that was turned in to the missing persons unit of the MPD?

A. I believe I did, sir.

Q. Okay. If you did then, then you remember that missing the persons report talked about Genna as being a runaway and at risk; is that true, sir?

A. No, sir, I don't recall that.

Q. Well, maybe this will refresh your memory.

A. Sir, this is not the report. This is the teletype.

Q. Son of a gun. Got that one wrong again. Teletype?

A. Yes, sir.

Q. Does it not -- did you see that before?

A. Yes, sir, I did.

Q. Right. And it tells us she's a runaway, runaway, and it says at risk?

A. Yes, sir, that's what the teletype says.

Q. Did you take that into consideration?

A. Yes, sir, in consideration with the information was provided to me by the investigators.

Q. That was provided to you by the investigators?

A. I believe, sir, it was.

Q. Was - do you remember reading that Latoya Leblance said that, if Genna had called to meet somebody, she would be instructed -- she would instruct them to pick her up at the park, the Stop 'N Save or the Walgreens.

A. I vaguely recall that, yes, sir.

Q. You vaguely recall?

A. Yes, sir.

Q. Perhaps that will refresh your memory so it will no longer be vague.

A. Yes, sir, the whole paragraph states that, "She was going to meet an individual by the name of Shane, that she gave directions that this individual Shane should not come over because her mother was home."

Q. Now, I'd like to ask you a simple question. Who asked you to read that out loud?

MS. FLADAGER: Objection, Your Honor.

THE COURT: Sustained.

Mr. Herman, if you have an objection, make it. Otherwise, let's proceed.

MR. HERMAN: I will object and ask that it be stricken from the record and the jury instructed to disregard it and the witness instructed to answer only those questions that are put before him.

THE COURT: Well, I will go ahead and sustain the objection as far as the portion that was read.

MR. HERMAN: Q. Now, does the risk factor increase if boys over 20 are trying to pick up girls that are 13 and 14 and give them false names?

A. It can, yes, sir.

Q. So it is a factor that might increase the risk factor for Genna hanging around with guys who give her false names and that are not age appropriate?

A. Yes, sir.

MR. HERMAN: I am sorry, Your Honor.

I am trying to find the specific report. Been marked as OO.

Q. The first line, "Dead X in the creek past the curve of the road." Do you know what that means?

A. No, sir.

Q. You have never seen anything like that before?

A. May I?

Q. Please. Just the first line. Only the first line that I have referred to.

A. Okay, sir.

Q. Do you know what that means?

A. I can make an assumption.

Q. Well, you were a policeman for many, many years, correct?

A. Yes, sir.

Q. And you have seen many of these printouts, have you not?

A. I don't know if I would use the word "many," but I seen a number of them, sir.

Q. Well, how many would be "many"?

MS. FLADAGER: Objection. Relevance.

THE COURT: I think we're getting a little far afield here.

MR. HERMAN: I am only responding to the answer.

THE WITNESS: Your Honor, it appears to be a printout of radio transmissions by the responding officers. I am assuming that "dead X" means "dead body," but I am not particularly familiar with the Modesto Police Department's or the Stanislaus County Sheriff's Office's radio transmission codes.

It's making an assumption on my part that, when this particular radio transmission says "dead X," I am assuming it means "dead body."

MR. HERMAN: Q. It's been testified that the X is for female. "Dead X in the creek past the curve of the road."

Did you ever see this before, this document that has been marked 007

A. I don't recall, sir.

Q. Were you ever told that there was a radio transmission that said, "Female found in the river"?

A. No, sir, I don't recall.

Q. Would it not be important to you in your opinion if the people who found Genna Gamble first told the police officers that she was found in the creek or river?

A. Is that, in fact, what happened, sir?

Q. First question is mine; then the next one can be yours. You answer mine; I will answer yours.

A. I am at a loss, then, to ask answer yours then. You are asking me if it would be important?

Q. Yes.

Would it be important to you in your analysis if the report was "Dead body found in the creek, dead body found in the river"?

A. If the report by the first person who found -- who -- if the report states one thing, that the person discovering the body said that they told the officers, "We found the body in a river," and upon investigation by the police, the body is not found in the river but found somewhere else, it would be important to rectify the discrepancy, yes, sir.

Q. Well, could the discrepancy be, that's where they saw the girl murdered, and when they left to get the police, they came back and found the body in a slightly different place?

Is that a possible scenario?

MS. FLADAGER: Objection. Speculation and also lack of foundation.

THE COURT: Sustained.

MR. HERMAN: It's a proper hypothetical, Your Honor.

THE COURT: The objection is sustained.

MR. HERMAN: Q. You have information -- we have information that the people who found her said to the police officers, "We found her in the creek, found her in the river, is that was the first statements as reported by the police, both in their transcription and in their 911 tape.

Given that fact and that the person who said that went away for a while and they came back and they found the body 15 feet from the river, would that have any effect on your opinion?

MS. FLADAGER: Objection. Misstates the evidence.

THE COURT: That's sustained.

MR. HERMAN: Q. But the body was found how far away from the creek? You told us you were told how far away the creek was.

A. My recollection is that the body was found approximately five yards up from the creek bed.

Q. Okay.

A. I think the water was somewhere farther than five yards.

Q. How many yards more? Three, four, five?

A. Less than five.

Q. Okay. So she was found within ten yards or less than 30 feet from the water, correct?

A. Yes, sir.

Q. And we have information that the people who found her said she was found in the creek, she was in the creek.

Is it not logical to, then, assume that her body was moved from the creek to under 30 feet away from where she was found?

MS. FLADAGER: Same objection. Misstates the evidence.

THE COURT: It's sustained.

MR. HERMAN: Where does it misstate the evidence?

Mr. Herman, there has been no evidence that anybody reported that she was found in the creek.

MR. HERMAN: That's not true. Officer Nuno on this stand reported that the two people said so.

THE COURT: We don't need to argue about it at this point. You're talking about radio dispatches there.

MR. HERMAN: NO, I am talking about Officer Nuno without -- without objection testified that that's what he was told by the two Mexicans, by -- I am sorry, by Mr. Robles.

THE COURT: The objection is sustained at this point. Why don't we go ahead and take our afternoon stretch break at this point. Let's be back here at five till. Please keep in mind the admonition I gave you before. Don't discuss the case with anyone.

(Whereupon the jury left the courtroom.)

THE COURT: We're back in session now outside the jury's presence here, and, Mr. Herman, I wanted to check and see if there is some testimony from Officer Nuno saying that he took a statement from someone and someone told him that

they saw the body in the creek?

MR. HERMAN: Yes.

THE COURT: Either -- whoever handled that part of the People's case, do you recall anything like that?

MS. FLADAGER: My understanding and my recollection is that Officer Nuno, when shown the transcript, said yeah, that he probably had -- Officer Nuno reported that, but my recollection is also that the two -- that Mr. Robles, when he was questioned, said the body was where he saw it when he returned. It's the same place when he first sees it and then when he goes back with the police it's the same place.

THE COURT: The transcript you're referring to is Exhibit 0 here, the radio traffic?

MS. FLADAGER: That was what was shown to Officer Nuno.

MR. HERMAN: Yes, and I asked --

THE COURT: That's my recollection, too.

MR. HERMAN: Yes, and I asked specifically if that's what Mr. Robles told him and he said yes, that's what he told him. And that's why that transcript, the radio transcript did -- became what it became, besides being a business record.

THE COURT: If you can find it, then that's fine.

MR. HERMAN: It's also a business record.

THE COURT: If you wanted to use that as a hypothetical, certainly I would allow that, I think.

MR. HERMAN: Yes, sir.

THE COURT: But at this point you're basically telling the witness what the facts are. You're not phrasing it as a hypothetical.

MR. HERMAN: No, I understand that, and the reason I did that is because I firmly believe that Officer Nuno said that's what he was told by Mr. Robles.

THE COURT: Okay.

MR. HERMAN: And I know Mr. Robles did not say that. We know Mr. Robles thought it was his daughter.

THE COURT: Okay.

(Recess.)

THE COURT: We're back in session once again on People versus Mouser, the jury and the alternates, the attorneys and parties. Our witness is back on the stand.

Mr. Herman?

MR. HERMAN: Q. Now, it's important for you to have an understanding of the victim's history of drug use; correct?

A. Yes, sir.

Q. And alcohol use?

A. Yes, sir.

Q. Mental illness?

A. Yes, sir.

Q. And you reviewed the notes of Isabel Van Sicklen?

A. Is that the marriage, child and family counselor?

Q. Do you have a specific memory of whose notes you reviewed that related to the child's --

A. I have a specific memory of reviewing notes and reports from a marriage, child and family counselor. If that is the woman's name that you mentioned, then yes, I have an independent memory.

Q. So that was two years ago that you reviewed these things?

A. Yes, sir.

Q. Did you ever call her?

A. No, sir, I did not.

Q. Do you think it might have been good to call her and discuss her notes in full?

A. If I had a question involving her notes or her report, I would have called her. It was fairly clear what she had reported and documented. I had no questions. I did not call.

Q. So you could read her notes and you knew exactly what she was referring to when she made notes?

A. I had a general understanding of what she was saying, and based on that and the conversations with the investigators, yes, sir.

Q. Now, notes are -- what -- you're a police officer. You do notes all the time on crimes, do you not?

A. Yes, sir.

Q. And notes, then, are actually aide memoires, are they not?

A. I'm not familiar with the French term, sir. Q. That they're aids to your memory?

A. Yes, sir.

Q. So they're not full transcriptions of conversations?

A. Not generally, no, sir.

Q. So then Isabel Van Sicklen's notes would not be complete, would they, by definition of being notes?

A. By your definition, that's correct, sir.

Q. Well, isn't it your definition? Isn't that what you do with notes, or do you tape-record or shorthand every interview you do?

MS. FLADAGER: Objection. Relevance, argumentative.

THE COURT: It's starting to get that way. It sounds like I'll let you answer the question, if you understand it.

THE WITNESS: Some interviews I use notes. Some interviews are tape-recorded. Some interviews are transcribed.

MR. HERMAN: Q. Okay. And when you take notes, you don't transcribe them, what do you do with your notes afterwards?

A. They remain in the investigative file.

Q. And when you look at them, you are then able to recall the totality of the circumstances of the interview; correct?

A. That's the general idea, yes, sir.

Q. You can recall it because they aid your memory. They tickle things in your mind that give you a more general knowledge of what went on in that interview, that's correct?

A. For me, yes, sir.

Q. But somebody else looking at your notes wouldn't be able to reconstruct that interview, would they?

A. Looking at my notes, I doubt it very seriously, sir.

Q. So why do you think you can reconstruct Isabel Van Sicklen's interviews with Genna and Genna's mother just by looking at her notes?

A. I didn't reconstruct the interviews, sir. I said there was sufficient information for me to get a general idea of what was going on.

Q. A general idea?

A. Yes, sir.

Q. Not a specific idea?

A. Yes, sir.

Q. Isn't it important to have as much information as possible prior to making a victimology report?

A. As much as necessary, yes, sir.

Q. As much as necessary or as much as possible?

A. Without seeming to be quibbling over words, sir, would agree to as much as possible.

Q. Necessary and possible are two significantly different words in the English language, would you not agree?

MS. FLADAGER: Objection, Your Honor. Relevance.

THE COURT: Sustained.

MR. HERMAN: Well, the witness' response to my question --

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

MR. HERMAN: Q. So for you to make an evaluation and come to an opinion, the more information you have about the totality of the circumstances, the better off you are?

A. Yes, sir.

Q. So when you say you have enough or necessary, that's an arbitrary line that you draw, isn't it?

A. Yes, sir.

Q. Okay. So what you think is necessary may not necessary for somebody else? They may need more information?

A. Someone else may need more, may need less, yes, sir.

Q. But it would be better for all of you to have much as possible?

MS. FLADAGER: Objection. Relevance and argumentative.

 

THE COURT: I'll allow you to answer. Go ahead.

THE WITNESS: Yes, sir.

MR. HERMAN: Q. And if you called Isabel Van Sicklen, you might have gotten more information?

A. I might have, yes, sir.

Q. And by calling Isabel Van Sicklen and discussing her notes, you might have gotten a greater depth and understanding of her defiant behavior?

A. I might have.

Q. And you might have gotten a more significant understanding of the history of her physical altercations?

A. I might have.

Q. And you might have gotten more information about Genna Gamble's impulsive behavior?

A. I might have.

Q. Do you have any information on Genna Gamble's impulsive behavior?

A. Not as you phrase the question, no, sir.

Q. Do you think that it would be important for a victim of a crime such as this for you to have information as to her capacity for impulsive behavior?

A. What kinds of impulsive behavior, sir?

Q. Getting annoyed and leaving the house?

A. That would be significant, yes, sir.

Q. Now, were you ever shown any police reports that were related to witnesses who claimed they saw Genna Gamble outside the home on October 14th, 1995?

A. If I did not actually see the reports, that information was provided to me verbally by the investigators and the District Attorney's Office.

Q. Did you take notes on that verbal conversation with them so that you would have it when you did your evaluation?

A. I cannot answer that involving the interviews with the investigators. I may have. I don't have my notes with me. With my conversations with the representatives of the District Attorney's Office, I did not take any notes.

Q. So then you don't know whether you were told about Yacoub Gilbert?

A. I was given information about three -- three individuals. I don't recall their names.

Q. Ron Hughes?

A. Again, sir, I don't recall the names.

Q. Olen Bruce?

A. If we are referring to the three individuals that may or may not have seen the victim outside of the house, if those are the names, then we're talking about the same information. If you're giving me names unrelated to that scenario, then I can't answer because I don't recognize the names.

Q. Did they show you reports?

A. I beg your pardon, sir?

Q. Did they show you reports?

A. I believe during the investigation, consultations the sheriff's department, yes, sir.

Q. Now, when you were doing your investigation or when were asked to consult in this, I should say, you told us you saw about 18 pictures; is that correct?

A. If that's what you quoted in the report that provided to you through the court at the preliminary hearing, yes, sir.

Q. Now, looking at what has been marked as FFF, Dr. Lawrence has testified that the marks on her chin could have been done by the assailant to get the ligature from chin down to her neck. Did ever see that before? That you picture before?

A. I've seen this photograph before, yes, sir.

Q. If that's true, wouldn't it have been good to have had fingernail scrapings of the people in and around the area at the time the body was found?

A. If that were true?

Q. Yes.

A. If it were true, yes, sir.

Q. Showing you what has been marked as Defense PP and QQ, do you want to take a look at those, please?

Tell us not the content of them but what they are.

A. Appear to be someone's notes, sir.

Q. Now, the notes appear to be Ron Hughes, ex-CHP officer, and what he had said to someone, correct?

A. Well, on one page it says Ron Hughes, ex-CHP, retired, yes, sir.

Q. He told us here in court that he saw her picture in the paper, that he recognized her from being on Rumble, a hundred yards east of Coffee, shortly after 11:30?

MS. FLADAGER: Objection, Your Honor. Misstates the testimony.

THE COURT: The statement speaks for itself, so perhaps you could just refer directly to the statement.

MR. HERMAN: I was.

THE COURT: That's not what Mr. Hughes actually said though, is it?

MR. HERMAN: I believe that's what he said.

THE COURT: If your question is what the statement's saying, then please be accurate about that. If it's what Mr. Hughes said, then you can phrase it that way.

MR. HERMAN: All right.

Q. His statement said what I have just said, the notes that were taken -- that you're looking at state that, do they not, sir?

MS. FLADAGER: I would object to the question, Your Honor. Lack of foundation in terms of this witness's knowledge of the report, having read the report, taking into account --

THE COURT: I wonder if maybe you could get to that foundation first of all. We have had Mr. Hughes here to testify, so --

MR. HERMAN: I am sorry?

THE COURT: We have already had Mr. Hughes testify. So maybe you can get to the question about the statement - the notes rather, excuse me.

MR. HERMAN: I am trying to find out first if Special Agent Prodan, prior to testifying at the preliminary hearing, was given Ron Hughes's notes to look at and evaluate before he testified at the preliminary hearing.

Q. Is that -- did you see these notes prior to your testifying at the preliminary hearing, sir?

A. I don't believe so, sir.

Q. Were you shown any documents that were related to a neighbor who saw -- claimed she saw Genna Gamble leave the house sometime around 11:00 a.m. on Saturday?

Did you ever see a report like that, sir?

A. I may have, yes, sir.

Q. So you did see that.

A. I may have, yes, sir.

Q. Did you take that into account?

A. Yes, sir.

Q. In the report, it told she was wearing a white top and black tight shorts. That's the same as the description that Mr. Hughes used, is it not?

A. No, sir.

Q. What did Mr. Hughes say?

A. According to these notes, says, "Believes wearing tennis shoes, shorts, pullover top." Doesn't say anything about color.

Q. And Mr. Yacoub's report said that he saw a light blue, older model vehicle around the house on Friday night.

MS. FLADAGER: I would object to this as well in terms of is there a question and --

THE COURT: Sustained.

MR. HERMAN: Q. So you have seen that report now?

A. I have seen it now, yes, sir. I have got it in my hands.

Q. Right.

A. Is your question, have I seen it before?

Q. Yes.

A. I don't recall if I have actually seen the report, but I know I have had a conversation about the information in the report.

Q. Did you have a conversation about the Information in the report that there was a light blue car seen near the Carlisle residence the night before?

A. Yes, sir.

Q. Did you ever have a conversation that Brian Hair owned a light blue, late -- old model vehicle at this time?

A. No, sir, I don't remember.

Q. And if I told you the hypothetical, that Brian Hair had a light blue, old model car at around this time, would that affect your risk factor analysis?

A. No, sir.

Q. Isn't it true that at the preliminary hearing, on page 52 -- I am sorry. That is from this morning's testimony. You told us there was no information provided by the investigators that the victim left the residence. Do you remember saying that?

A. Yes, sir.

Q. Now you tell us that there is information. You had information from Gilbert Yacoub that the victim left the residence.

A. There is information that a person possibly being the victim left the residence.

Q. Okay. There is information that the person possibly being the victim was seen shortly after 11:30 a couple miles down the road, correct?

A. That's what the notes say, but it's in conflict with the rest of the information involved in the case.

Q. So does that mean that, because it's in conflict, that we should just dump it out and ignore it?

A. I didn't say that, ssir. I said it was in conflict and it needed to be rectified.

Q. So it has value of some

A. It might.

Q. Now, we have testimony of Olan Bruce that, around 1:00 o'clock, a couple of miles from where the body was found, he saw a girl he believed to be Genna Gamble.

Were you told that?

A. Yes, sir.

Q. So now we have three people that said they saw a girl they believed to be Genna Gamble outside the house at the time you say she was killed in the house.

A. Yes, sir.

Q. That has to be rectified, does it not?

A. Yes, sir.

Q. Are you interested in rectifying this or in convicting him?

MS. FLADAGER: Objection, Your Honor. Argumentative.

THE COURT: I will allow it. You can answer.

THE WITNESS: Rectifying it, sir.

MR. HERMAN: Q. Now, do you have any idea of the victim's state of mind on the day before she was killed?

A. No, sir.

Q. If I told you that the victim had broken her parents' grounding regulations and came home at 20 -- 40 after 11:00, would that have any effect on your opinion?

A. No, sir. What you just told me is consistent with the information that I had.

Q. You have information that she was an impulsive child?

A. I am afraid I can't use the word "impulsive. The information I have is that she is argumentative. She is a problem. She is a conflict in the home. I don't know if that translates to you as impulsivity.

Q. But you have no information that she is impulsive.

A. I don't recall any, sir.

Q. What if I asked you if you spoke to Isabel Van Sicken, she told you that she would classify the child as an impulsive child.

Would that have an effect on your opinion of the facts and circumstances in this case?

A. Would it have an effect?

Q. Yes, sir.

A. It might, yes, sir.

Q. Now, you talked about a concept called the window of opportunity and you said three and a half hours. What facts do you base that on?

A. The information from the investigators that there was a series of telephone calls from the victim speaking to one of her friends. I believe the last call was roughly 11 - between 11:20 and 11:30, and the victim's body was discovered approximately 2:40 to 2:30.

Q. What time did Gerren leave the house?

A. I'm afraid I don't understand the question.

Q. What time did Gerren leave the house?

A. Gerren?

Q. Gerren. Not a gerund like in pronunciation and in diction, but a Gerren in terms of a name.

A. If I'm correct in assuming that Gerren is the brother?

Q. Sir, I asked a simple question. You've written reports on this subject. You've seen criminal investigative reports. You're here as an expert. I asked a simple question. What time did Gerren leave the house?

MS. FLADAGER: Your Honor, I would object in terms of, if he's going to ask a question, he should give him the information he needs to answer.

THE COURT: I'm going to sustain the objection, Mr. Herman. You can't expect a full answer on partial information, and if he doesn't recall the name, then --

MR. HERMAN: Q. Gerren is the brother.

A. May I refer to my reports?

Q. Yes, please.

A. My report says that -- my information was that the victim's brother left at approximately 1155 hours.

Q. Now, when the victim's brother left, didn't he tell you -- didn't

-- your information you had, that he didn't see his sister or he didn't see his father?

A. That's the information I was provided, yes, sir.

Q. And you were provided information about Genna being on the telephone sometime around 11:00 o'clock?

A. Between 11:00 and 11:30. There were several phone calls.

Q. Yes, but you don't know what time, do you? What time was the first phone call?

A. Somewhere around 11:00.

Q. Somewhere around 11:00. Why do you say that?

A. That's my recollection at this time, sir.

Q. Yes, your recollection of what, sir? What fact do you base that on?

A. My conversations and the information provided to me by the investigators.

Q. What conversation and information? What facts do you base it on?

MS. FLADAGER: Objection. Asked and answered.

MR. HERMAN: Not asked and answered. I asked what specific facts.

 

THE COURT: Mr. Herman, it has been asked and answered.

MR. HERMAN: Q. What facts did you get from whom?

A. At the very beginning, it would most likely be Investigator Bosma from the sheriff's department.

Q. And what did he tell you specifically that makes you believe today that her last phone call was around 11:20 or so?

A. Sir, I did not say the last phone call. I said the first phone call.

Q. The first phone call? Where did you get that information? I don't mean from Mr. Bosma. I mean, Mr. Bosma told you that, therefore it's true?

MS. FLADAGER: Objection, Your Honor. Argumentative.

THE COURT: Mr. Herman, I'm not sure what your question is, either, but the objection is sustained. If you want to know what he reviewed, then ask him.

MR. HERMAN: Q. What did you review that told you 11:00 -- 11:60, 11:207

A. It would be the investigative reports and conversations with Detective Bosma, sir.

Q. And what was - obviously Detective Bosma was not in the house, was he, when that telephone call was made? Was he?

A. I don't believe so, yes, sir.

Q. No. So what did Detective Bosma tell you who told him what?

A. One of the witnesses he interviewed, sir.

Q. Okay. So you're saying that, because that particular witness said that particular time, then that's God's truth?

MS. FLADAGER: Objection, Your Honor.

THE COURT: It's sustained.

MR. HERMAN: Q. Then that is absolute truth?

MS. FLADAGER: Objection, Your Honor. It's not what he's saying.

THE COURT: That's argumentative.

MR. HERMAN: Then that is the truth?

MS. FLADAGER: Objection.

THE COURT: That's not what he did in this case. The jury determines the truth.

MR. HERMAN: I understand that, but he's made a determination that what Detective Bosma told him someone else said --

THE COURT: Mr. Herman, if you want to find out what facts he relied on, you can do that.

HERMAN: I've asked.

What facts did you rely on, sir?

A. And I've answered, sir. It was the information provided me by Detective Bosma.

Q. And what information is

A. Based on his interviews with witnesses, sir.

Q. What information? What specific information? Generally his -- what --

MR. HERMAN: Your Honor, it's a nonresponsive answer. He's made a specific --

THE COURT: I don't know what you're asking him to do.

MR. HERMAN: I'm asking him to tell me what Detective Bosma told him that he could say 11:20.

THE COURT: You want to know what specific report he looked at?

MR. HERMAN: I want to know what report he looked at.

THE COURT: Well, then, ask him that.

MR. HERMAN: Q. What report did you look at?

A. It would have to be an investigative report and an interview report, sir.

Q. with whom? Whose interview that gave you that information?

A. One of the victim's girlfriends that was speaking to her on the telephone.

Q. Which one?

A. I don't know, sir.

Q. Do you have any idea whether she's credible or not credible?

MS. FLADAGER: Objection. Relevance.

THE COURT: That is not relevant at this point. He can only deal with what he's given.

MR. HERMAN: Q. I understand that, and the point is, you do not have a knowledge of whether she's credible or not credible. All you have is the information she gave the detective; that's correct?

A. That's correct.

Q. Okay. Now, you were given information by this detective that Kathy Mouser came home at a -- prior to 11:15; that's correct?

A. Yes, sir, I believe so.

Q. 12:15. Sorry. I apologize.

You -- Kathy Mouser came home just prior to 12:15; that's correct?

A. That's my understanding, yes, sir.

Q. From 11:55 to 12:15 is 20 minutes; is that correct, sir?

A. Yes, sir.

Q. Now, would you not -- Kathy -- you were given information that Kathy Mouser came into the house and said, "No one was home, I looked in all the rooms," and she came out mumbling to her friend, Miss Quinn, a level of anger about Genna not being home; that's correct?

A. I don't know, sir. I don't know about her mumbling or talking to another person.

Q. You never saw a report about Barbara Quinn and Kathy Mouser coming home?

A. I know the information is that Mrs. Mouser came home at approximately 12:15. I don't recall comments about mumbling and as you provided me that information, so --

Q. Do you recall that Miss Kathy Mouser came home and said there was no one in the house?

A. Yes, sir.

Q. Okay. And did you take that into consideration?

A. Yes, sir.

Q. Now, if you took that into consideration, if Gerren left at 11:55 and Kathy came home before 12:15, the window of opportunity to kill Genna in the house is only 20 minutes.

A. No, sir.

Q. Okay. Why is it more than that?

A. The victim was last known to be alive, based on the telephone call, at approximately 11:24 to 11:30.

Q. Okay. 11:30, known to be alive. Gerren's in the house. Then that would mean between 11:55 -- 11:30 and 11:55 in the house, Mr. Mouser, if he killed her in the house, would have had to kill her while Gerren was home?

A. I'm sorry, I don't understand your hypothetical.

Q. Well, we know Gerren left the house at 11:55; right?

A. That's the information provided, sir.

Q. And we know Kathy returned to an empty house just before 12:15.

A. That's the information provided, yes, sir.

Q. Right. Now, you know Genna is alive at 11:30.

A. Yes, sir. And her body is found at approximately 2:30.

Q. I understand that, but her body is not in the house at 11 -- 12:15, is it?

A. It's not reported, that's correct, sir.

Q. If she was killed in the house between 11:30 and 12:15, now we have a window only of 45 minutes.

A. As you stated, yes, sir, that's correct.

Q. Yes, but I tell you she's killed in the house. We haven't gone into why yet, but your opinion, she was killed in the house. Isn't that your -- that's what you've told us?

A. I believe that the testimony was that the first confrontation occurred in the house.

Q. The first confrontation. What does that mean?

A. When the victim and the offender first come in contact.

Q. The first confrontation is in the house. How do you know there's a confrontation in the house?

A. The last phone call was described as ending abruptly or sharply.

Q. Yes, but we were also told that in the courtroom that the phone went off, it was a cordless phone.

MS. FLADAGER: Objection, Your Honor. He was in the middle of an answer.

MS. FLADAGER: Objection, Your Honor. He was in the middle of the answer, what he is basing his information on.

THE COURT: Did you finish your answer?

THE WITNESS: NO, Your Honor.

THE COURT: Why don't you go ahead and finish that first then.

THE WITNESS: There is no information that suggests that the victim was contacted anywhere else other than in the residence.

MR. HERMAN: Q. Hold on a second. The object of the exercise is to get information that she was contacted in the residence. You have to prove she was killed in the house or someplace else. So let's start with what information you have that says there is a confrontation in the residence.

What facts were given to you that lead you to believe that a confrontation took place in the residence between -- I will stop there.

What is your definition of a confrontation?

A. For the purposes of the analysis is when the offender and the victim first make contact.

Q. You mean, if they talk together, that's a confrontation?

A. That's the first -- that's the beginning of the event, yes, sir. That's the beginning of the event.

Q. Do you have any knowledge that Doug Mouser spoke to Genna Gamble after 11:307

A. After 11:30?

Q. Yes, sir.

A. No, sir, I don't.

Q. DO you have any knowledge that anyone spoke to Genna Gamble after 11:30?

MS. FLADAGER: Objection. Relevance.

THE COURT: I will allow it.

THE WITNESS: It would have to be an assumption, sir, on my part, but yes.

MR. HERMAN: Q. The only thing you can do is make an assumption, but you have no knowledge of anyone speaking to Genna Gamble after 11:30; that's correct, sir?

A. That's correct.

Q. Go back again.

How do you know a confrontation that is defined by you is the beginning of a conversation took place in the house after 11:30?

A. It's the last place where the victim was known to be alive, sir.

Q. Yes. So?

A. That's the last place.

Q. It's the last place she was known to be alive, but you have three witnesses who suggest that she was on Carver, that she was first in the house, then on Carver, then in Waterford, in succession to the time she was murdered.

So that also suggests there are other people who saw her alive after 11:30.

A. Is there a question there, sir?

Q. I said, isn't that so?

A. No, sir, not necessarily.

Q. Not necessarily.

Well, one of them is a CHP cop of 24 years experience. Would you not say that his testimony would have some credibility and weight?

A. The sole fact that he is a Highway Patrol officer, maybe, but the problem with his information as it is in these notes, he says that he saw a person at this location on Saturday morning shortly after, and it's in quotations, 11:30. We know the victim was last involved in a telephone conversation at her residence at 11:30.

Q. How do you know that?

A. That's the information that investigator.

Q. Who was she talking to?

A. One of her girlfriends.

Q. At 11:30?

A. That's my understanding, sir.

Q. Who told you that?

A. Detective Bosma and/or the investigative reports.

Q. You are sure.

A. That's my recollection, sir.

Q. Forty-five minutes is the window of opportunity if she was killed in the house, was she not?

A. No, sir.

Q. If she was killed in the house, killed after 12:157

A. Yes, sir.

Q. If Kathy Mouser was home, could she have been the killer?

A. Are you asking my opinion, sir?

Q. I am asking the possibility, you, as a scientist.

A. Well, sir, I am not a scientist, but if you are asking, is it possible the victim was killed in the residence with other people present in the residence, the answer is yes.

Q. Is it possible that she was killed before 11:30?

A. I don't believe so, sir.

Q. You don't believe so.

A. No, sir.

Q. Now, you know, you have testimony that Genna Gamble was strong and that, when she got into a conversation, she yelled, she screamed, she cursed and she fought.

MS. FLADAGER: Objection. That misstates the evidence, especially with regards to conversations.

MR. HERMAN: "Confrontation," not "conversation."

MS. FLADAGER: Confrontation.

THE COURT: Go ahead.

If you understand the question, you can answer it.

THE WITNESS: My understanding is that she was confrontational, she was disruptive and she was a problem in the family.

MR. HERMAN: Q. Do you have information that she yelled and screamed and cursed when she was in the middle of a confrontation?

A. It's my understanding that, yes, sir, there was a temper tantrum, if you may use my words.

Q. I would prefer you use my words, yell, scream, throw things.

MS. FLADAGER: Objection, Your Honor.

THE COURT: You need to make this a question.

MR. HERMAN: Q. You have information that she yelled, screamed and threw things when she had what you called a temper tantrum.

A. Yes, sir.

Q. And those temper tantrums, to your knowledge, were directed toward her mother, correct?

A. Yes, sir.

Q. And she fought with her brother; that is correct?

A. I believe so, yes, sir.

Q. And, Isabel Van Sicklen's term, her relationship with her stepfather was very good?

A. No, sir.

Q. Her relationship to one month before her -- Isabel Van Sicklen told Kathy and that Doug must take her side was very good.

A. I am afraid I don't understand your question, sir.

Q. One month before -- to one month before she died, will withdraw that. We will get to that tomorrow.

Now, are you suggesting that the confrontation between Kathy (sic) and her killer took place in the residence?

MS. FLADAGER: Objection.

THE WITNESS: Most likely, yes, sir.

MR. HERMAN: Q. What do you fashion -_

MS. FLADAGER: Objection. The victim in the case is Genna.

THE COURT: There is an objection.

MR. HERMAN: Q. On what facts do you base that on? Facts.

A. The last conversation -- the last information that we have, she was last seen alive, heard from alive in the residence.

Q. And what information do you have that she was in a confrontation with anyone in her residence after that last phone call?

A. Because she is not found alive.

Q. What facts do you have that she was in a confrontation in the house after the last phone call? Facts, sir. Pure, unadulterated facts.

A. The injuries the victim sustained.

Q. You mean, those injuries could only be sustained in the household; they couldn't be sustained anywhere else?

A. No, sir, I didn't say that.

Q. So if the injuries could be done elsewhere, then that is not a fact that goes specifically to the house, does it?

A. No, sir, it does not go specifically to that.

Q. Then what are the facts that lead you to believe there was a confrontation after the last phone call in the house? What facts do you have?

A. That's the fact that I have, sir.

Q. What, that she had defensive wounds? What fact?

A. I said, the last place that we know the victim was alive was the residence.

Q. And so that means she had a confrontation in her residence?

A. There is no other information that it occurred anywhere else, sir.

Q. So you tell us that, because the last place she was known to be alive was in her residence, she had to be -- she had to have a confrontation there?

A. Absent any other information that it occurred anywhere else, yes, sir, that's --

Q. But you have information from Mr. Yacoub, Mr. Hughes and Mr. Olan Bruce that it's a significant possibility that she was outside her residence?

A. No, sir, that's not true.

Q. You had no information that she was seen by anyone else before her death besides the three people in her family?

A. That's correct.

Q. Then the information of Hughes, Gilbert and Olan Bruce counted for nothing to you.

A. Are we talking about the same three people about seeing the victim outside her residence?

Q. Yes.

A. The Highway Patrol officer and somewhere else?

Q. Yes.

A. AS far as the first sighting, again, my information is that it was not a positive identification that it was definitely the victim, but it was a girl generally matching her description seen in front of her residence.

Given the fact that it's her residence, it's very likely that it might have been the victim, however, it was before the 11:30 phone call. So that information --

Q. Did not the report say approximately 11:00 o'clock?

A. I beg your pardon, sir?

Q. Did not the report say approximately 11:00 o'clock?

A. Which report are you referring to, sir?

Q. The report of the individual who you just quoted.

A. Okay. 11:00 o'clock is still before 11:30, sir.

Q. Did he say it was approximately 11:00 o'clock? The answer is either yes or no.

MS. FLADAGER: Objection, Your Honor. Argumentative. He is answering the question.

MR. HERMAN: No, Your Honor. I am trying to -- it's foundational for something else.

THE COURT: He didn't even finish the question --

MR. HERMAN: He didn't answer the question, Your Honor. THE COURT: He didn't even finish the answer he was giving when you started cross-examining him on whether it's approximately 11:00 o'clock or not. He does need to complete his answer before you go on to the next one. The objection is sustained.

 

 

MR. HERMAN: Q. When you read the report, did it not say approximately 11:00 o'clock?

A. I don't recall if the word "approximately" was used, but I would agree with you, approximately about 11:00 o'clock, yes, sir.

Q. Right. And we know that someone who is working outside of his home who doesn't or may not have a watch on may not be cognizant of the specific time, but only of the general time in relation to an hour?

A. I don't know if this particular person did or did not have a watch, sir.

 

Q. I understand that. I asked you a hypothetical question rather than about this particular person.

We know people who are working outside their homes doing chores may not be cognizant of the specific time that an event takes place; isn't that true?

MS. FLADAGER: Your Honor, I'd object. Argumentative, facts not in evidence, lacks foundation.

THE COURT: That's pretty general. I'm going to sustain the objection. More 352, I think, than anything else.

HERMAN: Q. Now, now, do you not think it odd that your were not provided information about Mr. Hughes' and Hr. Olen Bruce's sighting of Genna as investigator in this case?

A. Sir, I was provided that information.

Q. You were provided the information prior to preliminary hearing of Mr. Hughes, Mr. Bruce, and Mr. Yacoub?

MS. FLADAGER: Objection, Your Honor. Misstates his testimony.

MR. HERMAN: It's a question.

THE COURT: It's a new question, so go ahead, ask that question.

THE WITNESS: My memory is that, during my conversations with the investigators, that there was conversation involving possible sightings of the victim outside of her home. We discussed the possibilities and the accuracy of these witnesses, yes, sir.

Q. Well, didn't you ask to see the reports of those possible sightings?

A. I'm sure I have.

Q. So that you're telling us, then, that you're sure you saw Mr. Hughes' report? The reports that you looked at on Mr. Hughes?

A. I don't know whose reports these are, sir. They don't appear to be police reports.

Q. They appear to be notes, do they not?

A. Yes, sir.

Q. Did you ever see those notes?

A. I don't remember them, sir, no.

Q. And if I told you those were never put into specific police reports, but only remained as -- PP, only remained as notes, then it might be true you never saw that?

A. I've already said, sir, I don't recall seeing those notes before.

Q. Is it not important for you, in order to make a determination, to see all information that is relevant and pertinent to the sighting of Genna Gamble on the day of her death?

A. Yes, sir.

Q. And, now, in the preliminary examination on page 50, your question was, "Were you provided with any other information that other people might have seen her?"

And you answered, "No."

And here you tell us that you might have been provided the information. Can you tell us why the difference in testimony?

A. I made a mistake at the preliminary hearing.

Q. Ah. Okay. The preliminary hearing, of course, was -- the information you got was just two months before the preliminary hearing, wasn't it?

A. I don't know the time frame, sir.

Q. And that was a little fresher in your memory at the preliminary hearing than it is now?

A. It may have been.

Q. Now, what did you see in any of the photos in her residence that indicated that there might have been a confrontation at her residence?

A. There was no evidence provided by - through the investigators or through the photographs that I saw that indicated that there was a significant struggle.

Q. How about any struggle?

A. I don't believe there was any evidence of a physical struggle.

Q. So there's no evidence in the house of a physical struggle; correct?

A. That's my understanding.

Q. And there's no evidence that Genna -- that any neighbors who were out that warm October afternoon heard any yelling or screaming coming from the house?

A. That's my understanding, yes, sir.

Q. Then I go back again, is -- other than the information that you -- that you've discounted -- CHP Officer Hughes, Olen Bruce, and Yacoub's information -- as having no value --

MS. FLADAGER: Objection. Misstates his testimony.

MR. HERMAN: Q. Isn't that true?

THE COURT: I think we've covered that area. I'm going to sustain the objection at this time.

MR. HERMAN: Q. Well, you still go back to a confrontation took place in the home.

A. That's my opinion, yes, sir.

Q. How do you arrive what facts do you have that there was a confrontation?

A. As I've already answered, sir, it's the last place we know the victim was positively known to be alive, and the absence of any information she was anywhere else other than where her body was found.

Q. That's an a priori assumption that, since she was at the house, therefore there was a confrontation there?

MS. FLADAGER: Objection. Argumentative.

THE COURT: I'm going to sustain the objection at this point. I think we've covered this extensively.

MR. HERMAN: Q. Now, you talked about being an instructor for 24 different agencies.

A. Approximately, sir.

Q. Those are all police agencies, are they not?

A. No, sir.

Q. What are the police agencies?

A. The California Department of Parole, the South Carolina Department of Parole and Probation and Pardon, the California Department of Corrections.

Q. Oh, I stand corrected, sir. Done any research papers?

A. Not a formal research project, no, sir.

Q. Now, part of crime scene reconstruction, you talked about physical reconstruction, firearm trajectory, blood spatter, wound pattern analysis. That's part and parcel of the same thing, is it not?

A. I would agree, sir.

Q. Now, you read the autopsy, did you not?

A. Yes, sir.

Q. Dr. Lawrence in his testimony said that, when doing the autopsy, "She had some dirt in her mouth, I would say the front half of her mouth, maybe the third. There was the dirt there. There was some dirt and debris about her genital area, I think in the areas of moisture where things would tend to be stuck."

This is the testimony that was before us.

Now, did you look at the autopsy pictures? Do you remember any of them at all?

A. Yes, sir.

Q. Do you remember moisture in the mud clinging to Genna's genital area?

A. Independently without looking at the photograph, no, sir.

Q. Looking at what has been marked as AA, can you describe that photo for us, please?

A. It's a closeup of -- what's reported to be the female - the victim's female genitalia and her anal area. There is represented -- there is pubic hair, there is plant debris and what appears to be small amounts debris which could be dirt.

Q. Could you describe it as mud? Clumps of mud?

A. Along the area between her vaginal opening and anal opening, there is - it's kind of a darkish green. It could be mud, it could be plant material, yes, sir. Fair representation.

Q. Huh?

A. Fair representation.

Q. So it's a fair representation of mud clumps?

A. Yes, sir.

Q. Looking what has been marked as CC, looking at the angle of Genna, would that be mud around her ankle?

A. I cannot tell from the photograph, sir. I see something which could be plant debris, see something which could be some type of an abrasive injury. I see something that could be a bruise. I see something that could be a shadow in the photograph.

Q. Looking at NN, do you recognize that?

A. Yes, sir.

Q. And what is that?

A. It's a pierced earring and its post and its backing.

Q. Now, you testified that you were told that the earring was torn from her ear; is that correct?

A. That's I believe how it was described from the investigator and the autopsy report, yes, sir.

Q. And looking at J, does the earring appear to be torn from her ear?

A. I do not see a tearing in the particular earlobe as depicted in the photograph.

Q. Thank you. Did you ever see pictures of Doug Mouser taken shortly after Genna's death?

A. No, sir.

Q. Well, you know Genna to be a fighter, do you not? That's been described to you?

A. Yes, sir.

Q. So you don't know if Doug Mouser -- you said -- told us that there would be a

confrontation before the actual death?

A. Yes, sir.

Q. Do you not expect Doug Mouser to have some kind of bruises or wounds of some sort on her body -- on his body from that confrontation?

A. Not necessarily, sir.

Q. Why do you say that?

A. I have seen people be involved in physical confrontations where they inflict injuries on another person and they have little, if any, injuries upon themselves.

Q. Right. But we know that the injury that you've described and that Dr. Lawrence described as a blow to her face was not significant to render her unconscious, but was more of a control mechanism. Would that be correct?

A. I would agree, sir.

Q. Now, taking a look at what is H, look at Genna's left leg in this portion here. Does that appear to be mud?

A. I cannot offer an opinion based on this photograph.

Q. Now, you have done a lot of crime scene investigation?

A. Yes, sir.

Q. And one of the things you do in crime scene investigation -- let me ask you this. You do you know what Locard's Principal is?

A. Sir?

Q. Locard's Principal?

A. No, sir, I don't recognize the term.

THE COURT: Mr. Merman, is this a good point to take our break for the day?

MR. HERMAN: Yes, it is.

THE COURT: Why don't we go ahead and do that. It's 4:00 o'clock, ladies and gentlemen. Go ahead and break for today. Be back tomorrow morning at 9:30, resume the testimony at that time. Please keep in mind the admonition I have given you before. Be back here tomorrow morning

9:30.

MS. FLADAGER: Before we actually excuse the jury, could we approach real quickly about the scheduling?

THE COURT: Okay.

(Whereupon there was a discussion off the record between the Court and counsel in chambers.)

THE COURT: Back in session once again. The jury is still patiently waiting. We were discussing scheduling situations. This witness has some commitments tomorrow and Wednesday, actually, he is going to need to take care of not around here, so we're going to go ahead and free him up so he doesn't miss that.

We are not through with this witness. What's going to happen, he will come back here to complete the examination both for Mr. Herman and by the People. We don't know for sure when that day will be, but we will let you know once we do.

So we are kind of cutting it in pieces. We don't like to do that, but given the situation, sometimes that's necessary. This is one of those times.

So when we do come back tomorrow at 9:30, you will notice we will be starting with a different witness. We will be moving along with other witnesses. Just because we are doing that doesn't mean we have completed with this witness's examination.

So we will go ahead and break for the day, then, with that quick explanation, and we will see you back here tomorrow morning at 9:30. Please keep in mind the admonitions I have given you.

(Whereupon court recessed at 4:12 p.m.)