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

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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.

THE COURT: We're back in session once again on People versus Mouser with the attorneys, parties, the jury and the alternates. Everyone is here and accounted for, and we're ready to go ahead and proceed with a new witness, then.

MR. HERMAN: DO we have all alternates, Your Honor?

A JUROR: Yes.

THE COURT: Okay. Everyone get all their belongings back? Notebooks, pencils?

Okay, let's go ahead and proceed with our next witness, then.

Ms. Fladager?

MS. FLADAGER: Thank you. The People would next call Michael Prodan.

MICHAEL JOHN PRODAN, called as a witness for and on behalf of the People, having been duly and regularly sworn, testified as follows:

THE WITNESS: I do.

THE CLERK: Please be seated.

DIRECT EXAMINATION

BY MS. FLADAGER: Q. Sir, would you please state your full name and spell your last name for the record?

A. Michael John Prodan, P-r-o-d a-n.

Q. And are you a - an agent, special agent?

A. Yes, I am.

Q. For whom?

A. The South Carolina Law Enforcement Division.

Q. Would you please tell us what your current job assignment is?

A. Currently the -- I'm part of what is referred to as the Behavioral Sciences Unit, involved in special operations of the South Carolina Law Enforcement Division.

In essence, it is an investigative support unit for law enforcement agencies throughout the state of South Carolina, and on occasions, North Carolina and Georgia, Florida.

We assist law enforcement agencies in investigations involving crimes of interpersonal violence, homicide, sexual assault, child molestation, abduction, consult in hostage negotiations, basically involving crime scene analysis, investigative strategies and suggestions, and what is generally referred to in the public as profiling of unknown offenders involved in violent crimes.

Q. How long have you been working for the state of South Carolina?

A. A little over one year.

Q. Prior to that, where did you live?

A. I was a special agent supervisor with the California Department of Justice, Bureau of Forensic Services. I was the supervisor and lead agent of what is referred to as the Violent Crime Profiling Unit.

Q. Let's jump back again to South Carolina real briefly.

The responsibilities, or the duties, I guess, you've described that are performed there, are those duties that you yourself perform?

A. Yes, ma'am.

Q. And were you hired by South Carolina to come and do in fact those very duties you've told us about?

A. Yes, ma'am.

Q. Going back to prior to going to South Carolina when you were working for the - locally here in California for the Department of Justice, explain for us what your position was there and what your duties were.

A. In essence the same thing, assisting law enforcement agencies throughout the state of California in investigative support involving crime scene analysis and interview strategies and, again, loosely called profiling of unknown offenders, not only in the state of California, but there was also cases assisting in Nevada, Oregon, and Texas.

In addition to offering this investigative support, an instructor throughout the state of California with local law enforcement agencies involving crimes of interpersonal violence.

I was a supervisor of a relatively small unit, two special agents and a polygraph examiner. In California, there was no consultation or support for hostage negotiations as there is in South Carolina.

Q. And the group that you were in charge of for the Department of Justice, did you cover basically the entire state?

A. Yes, ma'am.

Q. And how long was it that you worked for the Department of Justice here in California?

A. I was a special agent for the Department of Justice 13 years, eight years of those doing the investigative support, crime scene analysis profiling.

Q. And as a special agent, are you a -- for California, were you a sworn peace officer?

A. Yes, ma'am.

Q. And do you continue to be a peace officer, even in southern California? I'm sorry, in South Carolina?

A. In South Carolina, yes, ma'am, I'm a sworn peace officer.

Q. And prior to being hired by the Department of Justice and working as a special agent, what did you do before that?

A. I was a police officer for the City of Covina Police Department in southern California, in Los Angeles County.

Q. Okay. Can you tell us a little bit about the time that you spent there and what your assignments were?

A. I spent approximately four years in patrol, two years as a regular patrol officer and then two years as a field training office.

I was assigned to the investigation bureau. I spent approximately seven years as an investigator working a variety of assignments ranging from crimes against property to crimes against persons. Primarily, crimes against persons involved sexual assault and child molestation and child abuse.

Q. Were you a detective? Is that what you were functioning as?

A. The title was investigator,

Q. Okay.

A. 1985, I was -- I'm sorry, 1985, I was promoted to patrol sergeant, was there a relatively short period of time as a sergeant, less than two months, then took an assignment as a special agent with the Department of Justice in the San Francisco office.

Q. Okay. All told, how many years have you been a peace officer?

A. A little over 26.

Q. Okay. And in that time period, how much time has been devoted to investigating crimes?

A. All crimes?

Q. Uh-huh.

A. Twenty-six.

Q. And of that time, how much of it was spent actually an investigator or detective investigating crimes of interpersonal violence?

A. As an investigator, approximately eight, with an additional eight, nine as crime scene analyst, profiler, investigative support.

Q. Would you please tell us about your educational background a little bit, please, as it relates to what you've described as crime scene analysis and profiling?

A. I have a bachelor's degree in criminal justice from California State University of Long Beach.

I've attended post-graduate work at the University of Southern California Delinquency Control Institute, which primarily deals with juvenile crime, both children as perpetrators and victims.

Additional training with the California Department of Justice and the Federal Bureau of Investigation, primarily involving crime scene investigation, forensics.

I was chosen as a special agent with the Department of Justice to be part of what was referred to as the criminal investigation response team. This was a collaborative effort between criminalists, the hard scientists, as you were, and the special agents to work as a team to assist local agencies throughout the state of California in investigating violent crime, primarily homicides and unsolved, older unsolved homicides.

Q. Let me interrupt real quickly. Are you yourself a criminalist?

A. No, ma'am, I'm not.

Q. You're a special agent?

A. Yes, ma'am.

Q. And what's the difference between a criminalist and a special agent?

A. A criminalist is, at least in the state of California, if you're referring to the criminalists from the California Department of Justice, they are not peace officers, but they are employees of the Department Justice. You're working for the Bureau of Forensic Services. They are in essence scientists working in the hard science, the forensic field, involving chemistry, biology, drug analysis, physical reconstruction, if you would, involving the -- the examination and the interpretation of physical evidence.

In South Carolina, the criminalists are special agents. It's a minor difference.

Q. All right. And I interrupted you. You were talking about being part of the criminal investigative response team as part of your background and experience as it relates to crime scene analysis and profiling. Please continue with your other training and experience in that area.

A. That selection as a member of that team led to my selection and attending the one-year police fellowship at the FBI academy, referred to as the National Center for the Analysis of Violent Crime, in Quantico, Virginia. In 1985, it was loosely referred to as the Behavioral Science Unit. I have been -- I am one of 34 graduates of that program.

Q. Now, that's a program that's open to people who are not FBI agents?

A. Yes, ma'am.

Q. Is the something which is geared to non-FBI agents or is it geared towards FBI agents?

A. The program was geared to non-FBI agents. The purpose of the program was to bring local law enforcement investigators who had investigating violent assault, child abuse, a significant experience in crime involving homicide, sexual to the Behavioral Sciences Unit.

The local officers would then give their experience and insight to the FBI agents who were trained and educated in the technique known as profiling.

Those FBI agents, in turn, the one-year fellowship would give their expertise and knowledge to the local investigators in a collaborative effort. The idea would be that these police fellows, as they are referred to, would then go back to their local areas, either their state jurisdictions or their city jurisdictions, and assist the local law enforcement agencies with what is referred to as criminal investigative analysis or profiling, and also act as a - an extension of the Behavioral Sciences Unit for the FBI to work closely with them, because there aren't -- in essence, there aren't enough FBI profilers to go around.

Q. Now, as part of this year that you spent at the FBI academy in this particular area, were you taking training courses, classes? What kinds of things were you doing?

A. It was a combination of training courses, including courses at the Institute of Psychiatry, Law, and Public Policy at the University of Virginia at Charlottesville, which primarily was reviewing and participating in the evaluation of defendants in the Commonwealth of Virginia for the determination of their ability to stand trial, their -- excuse me, their competency to stand trial.

There was also one-on-one instruction with the FBI agents involving their knowledge and education and research conducted on violent offenders. That primarily went on for six months.

The remaining six months were actually working cases throughout the United States under the tutelage, if you were, of the experienced FBI agents and in the Behavioral Sciences Unit.

After -- by the time I left the unit, I had completed 15 written analyses throughout the United States and participated in at least a hundred consultations at the Behavioral Sciences Unit.

Q. Okay. As part of your training at the FBI Academy, did you also attend some courses at the Armed Force Institute of Pathology?

A. Yes, ma'am. There were advanced courses of forensic pathology. These are courses designed for physicians, whom -- primarily hospital pathologists who are going to go into the field of forensic pathologists put on by the Armed Forces Institute of Pathology involving unnatural death, if you would, interpretation of wounds, gunshot wounds, blunt force trauma, cutting and stabbing injuries, poisonings, drownings, asphyxial deaths and the like.

Q. Okay. And you completed both the basic and advanced course there?

A. Yes, ma'am.

Q. Does that mean you're a pathologist?

A. No, ma'am, it does not.

Q. Is it something which is important to you to use in your current field?

A. Yes, ma'am.

Q. Okay. Regarding your background, education, training and experience as it relates to crime scene analysis and profiling, is there anything additional that you have done, courses you have taken or courses you have taught, that type of thing, to keep yourself up to date and up to speed on developments or the status of this particular field?

A. I am still currently a member of the California Homicide Investigators Association, Sexual Assault Investigators Association. I am -- with the exception of this last year, have attended those training conferences every year.

I have taken additional courses in South Carolina, crime scene reconstruction, hostage negotiations, threat assessment. I still instruct throughout the United States, primarily Kansas and Alaska, sexual assault investigators, sexual assault response team, nurse examiners courses.

I am currently an instructor at the South Carolina Criminal Justice Training Academy involving, in essence, homicide investigation, crime scene analysis involving homicide. I am also an adjunct instructor at the North Carolina Criminal Justice Training Academy for the same course.

Q. And how long have you been a -- an instructor, so to speak? How many years?

A. Approximately eight.

Q. Okay. And you have done some training throughout California; is that correct?

A. Yes, ma'am.

Q. Any idea how many different agencies or organizations you have done instruction for?

A. In California, I would have to say at least two dozen different agencies and/or organizations. Again, I have instructed in Alaska, Guam, Nevada, Kansas, Nebraska, Iowa, South Carolina, North Carolina.

I have given presentations at the American Academy of Forensic Sciences annual conference in San Francisco. I have instructed psychiatrists and psychologists in violent crime interpretation for the California Department of Corrections, San Quentin State Prison.

I have given presentations for the Association for the Treatment of Sexual Abusers at their annual conference in San Francisco and currently involved in a training program in the state of South Carolina which will roughly cover 300 police officers throughout the state.

Q. Okay. In addition to continuing to be a member of the California Homicide Investigators Association and the California Sexual Assault Investigators Association, are you a member of any other professional organizations?

A. Yes, ma'am.

Q. And what would those be?

A. I am a provisional member of the American Academy of Forensic Sciences, and I am a member and recently elected vice president of the International Criminal Investigative Analysis Fellowship.

Q. Now, the first one that you mentioned, you said it was a provisional member.

Can you explain to us what that means?

A. I have submitted my application and I have been accepted as a member of the American Academy of Forensic Sciences. I will become a full member after I attend at least one of their conferences and present a paper or an article for peer review.

I have been a provisional member, I believe, for three years. I have, because of circumstances, time and money and expense, I have not been able to attend the yearly conference. So, therefore, I am still a provisional member by their rules.

Q. All right. Now, you say you haven't been able to attend one of their conferences so you are still a provisional member.

Have you instructed at one of their conferences?

A. I have participated in a panel discussion involving crime scene reconstruction at the American Academy of Forensic Sciences conference in San Francisco, I believe, in '97.

Q. Okay. All right.

Have you previously qualified to testify in the area of crime scene analysis?

A. Yes, ma'am.

Q. And is that within the state of California?

A. Yes, ma'am, and the state of Texas and Oregon.

Q. What I would like to do first, we have talked about crime scene analysis, reconstruction and profiling, have you tell us, are these three different things? Are they the same thing? Are they related? Just general terms initially.

A. They are different, but they are related. Crime scene analysis and crime scene reconstruction are different in that the reconstruction would be an actual physical reconstruction as to what event occurred first and then

preceding events based on the physical evidence available at a crime scene.

Q. Okay. Can you give us just a generic example of what that might be?

A. An interpretation of blood spattering. You would be able to examine the bloodstains and then, within reason, come up with an analysis of this is where the first blood letting event occurred. The person moved from point A to point B. Maybe another injury Occurred there. Maybe a different type of injury instead of injury from blunt force trauma, maybe a stabbing or cutting injury that caused some type of arterial spurting and the like.

That would be an example of a physical reconstruction as to what happened based on the physical evidence.

Q. Okay.

A. Firearms trajectory. The person who was firing a gun was most likely in this position based on the path of the bullet, if that physical information was available at the scene. That would be a physical reconstruction.

Q. Okay.

A. A crime scene analysis would be the first part of constructing a profile. Crime scene analysis takes that physical information, but it also examines and interprets what we refer to as behavioral information that an individual will exhibit while committing a violent crime.

That behavior, sometimes extreme behavior, sometimes no behavior at all, is displayed during the commission of a violent crime. That is what is -- we refer to as a crime scene analysis.

So you take the two, the regional -- the physical reconstruction and the behavioral analysis, that will give you an overall interpretation as to what happened, how it happened and why it happened.

With that information, an individual will then try to construct a profile of the -- of an offender who committed the crime. Now, that profile is done only in cases involving unknown offenders. It is used as an investigative tool. It is provided to the officers in the investigation to narrow the focus of their investigation and talks about personality types and characteristics.

It is not evidence. It is not presented in any way as physical evidence, that a person is or is not responsible for committing the violent crime. The profile is merely an investigative tool.

Q. Have you ever seen the TV show The Profiler?

A. Yes, ma'am.

Q. Is it anything like the TV show?

A. No, maiam.

Q. Why not?

A. Again, my one experience watching this show, and it's typical involving the media, is that somehow this profiling is some type of psychic ability, some type of supernatural, intuitive reasoning. It is not.

It is based on training, education and experience. The character of the one episode that I did see seems to be haunted by her ability to perform her duties. And if I am not mistaken, the task force has some type of federal backing, which I am assuming is supposed to mimic the Behavioral Sciences Unit at Quantico. However, the vast majority of violent crimes are not the purview of a federal government, but they are for local agencies or state agencies. They are not investigated by the Federal Bureau of Investigation unless they occur on a federal property.

Q. Okay. So, as a general question initially, how did you become involved In this particular case that you're here for today on the basis of doing a crime scene analysis.

A. Yes, ma'am.

Q. Were you asked to do a profile?

A. No, ma'am.

Q. Tell us, if you would, what is the basis for a crime scene analysis?

A. First, the crime has to be involved in interpersonal violence. There has to be an interaction between the victim and the perpetrator.

The materials that are used for the analysis are obtained from the investigating agency and officers, primarily investigate -- preliminary investigative reports, laboratory reports, autopsy protocols, review of all the photographs that are available.

What is not considered particularly in the initial consultation is any leads that the investigators may have involving a suspect. In fact, I make it a point to advise the officers I don't want to hear anything involving your suspects, whether they are negative leads, positive leads. The idea is to work from the information of the crime scene and not additional followup investigation as to possible suspects, alibis, behavior and the like. That may come later on a case by-case basis, but the original consultation is held strictly on the information available during the commission of the crime.

Q. Okay. And so you take the initial information that's provided by the investigators. Well, if you want to analysis, first thing you do, you meet start a crime scene with them?

A. Usually it starts with a telephone call, but eventually there's a consultation, a sit-down meeting. Now, on some very old cases, the investigators choose to just send the investigative materials. Now, these are typically cases that are anywhere from five to twenty years of age and they are looking for review for any investigative tips or leads to move the case forward.

But if they're actually looking for an investigative analysis, then there's actually a consultation with the investigating officers and any other members of the department that may have information, and this includes criminalists, this may include crime scene technicians, investigators from the District Attorney's Office. On occasion, prosecutors have attended the consultations. Anyone who would have information about the case is -- is sought out.

Q. Now, you've said you take a look at investigative reports, autopsy reports, photographs, did you say?

A. Yes, ma'am.

Q. Crime scene photographs?

A. And autopsy photographs, photographs of evidence.

Q. All right. Then what is it that you do with that? First step?

A. You read everything at least three times, review the photographs, and you have your sit down. If you have any questions, then you pose those questions to the investigators as to interpretation as to what happened.

Now, part of that information has to do with trying to answer the question, why was the person selected to become a victim of a violent crime?

In other words, the background of the victim is very important. Usually that information is not contained in an actual police report, but that information is in the notes and in the investigative knowledge of the investigator handling the case.

When I talk about the background of the victim, is loosely what is referred to as victimology, why was this person selected? If it's a homicide, what problem does this person's death solve, what this person's risk of -- or is of becoming a victim of a violent crime.

All those things are considered in trying to make the determination as to what happened, how it happened, and why it happened.

Q. Okay. When you're looking into the victimology aspect of it, what kind of background information or information is it that you want to know about the victim?

A. Generally speaking, it is age; race; gender; social interaction with other people; their sexual interactions with other people; criminal history; personal history; education; employment; mental health history, if any; academic history; the area where they live; the area where they work; what type of job, if any, that they have; their routine, if would you, do they have a typical coming and going, do they have a set routine or they do not have a set routine.

Have they ever been the victim of a violent crime in the past; their social history; their family history; their general mode of dress; are they known as passive individuals or are they known as aggressive individuals; do they have a drug or alcohol history.

All these things are considered to try to make a determination as to what risk are they of becoming a victim of a violent crime.

Q. Why is that significant?

A. Some people, based on their lifestyles, elevate their risk of becoming victims of a violent crime. The higher the risk, the more people in the suspect pool, if you would. The pool becomes an ocean with some people.

If I may offer an example, a street prostitute, they are extremely high risk of becoming victims of violent crimes, particularly sexually violent crimes, and it's not because they are out there prostituting themselves, but it's because they are willing to get into a car with a stranger and drive away to an undisclosed area. That is a lifestyle.

Some people's risks are elevated, not as high, but to a moderate level because of their own vulnerability: Very young children, the elderly, physically and mentally handicapped people. Their vulnerability elevates their risk because they would have a very difficult time defending themselves. There are some offenders who pray on the extremely vulnerable, so those people's risks would be by a lifestyle choice, but because of their circumstances. Then there are people who are at a very low risk of a victim of a violent crime, whether it be sexual assault or homicide. People with a very low risk of becoming a victim of a violent crime, if it is a sexual assault, typically our experience is that those people are targeted by offenders. If it is a homicide, our experience is, the lower the risk, the more likely there is a relationship of some type between the offender and the victim or the offender and the location where the crime occurred.

Q. Okay. Okay. So that is why it would be significant to initially determine whether the victim is a low-risk victim or a high-risk victim, as that determines how big the pool is? Or the ocean?

A. Yes. The whole purpose of the crime scene analysis, and ultimately the profile, if it's an unknown offender, is to reduce the ocean to a manageable pool for the investigators.

Q. Okay. Once you take a look at victimology and you come up with your conclusion as whether the victim may be high risk or low risk, what's the next step in the process?

A. Where did the crime occur? How did the offender make an approach? How did the --

Q. What do you mean by "make an approach"?

A. Did the offender use immediate physical force to gain control of the victim, such as a blow to the head with a two-by four, severe blunt force trauma to the face? Did the offender approach the victim and immediately begin stabbing the victim? That type of blitz-style of attack. Did the offender lie in wait, surprise the victim, wait until the victim was in a position of vulnerability before making the initial approach?

Some offenders utilize a con. They -- a trick or a ruse or some type of device to get close enough to the victim where the victim does not perceive that they're in any physical danger until it's too late and then the

offender makes an approach.

Q. Okay.

A. Or does the circumstances -- in other words, the relationship between the victim and the offender -facilitate the approach.

An example of that would be a domestic violence situation where we -- you would have a husband and wife or a boyfriend and girlfriend who have lived toge5her for a period of months or years, it's a very volatile relationship, there's evidence or history of physical abuse on both sides. Well, the approach is already built into the situation because they live together in the same home.

Q. All right. You talked about the next step, including looking at where the crime occurred, the method of approach to the victim, and what else?

A. How was the victim controlled? Was the victim controlled by rendering him or her unconscious, the threat of a dangerous or deadly weapon? Was the victim bound in any way, physically restrained or chemically restrained? What type of weapon, if any, the offender used, the method of killing. Whether it was blunt force trauma with the hands or feet, stabbing or cutting injuries, any type of asphyxial death, gunshots.

All of these methods of killing are choices made by the offender. Sometimes these choices are made over a long period of time very deliberately. Sometimes these choices are made in a relatively short period of time during the entire episode of the crime, if you're talking about murder.

Q. Okay. Let me back up with the question.

You have mentioned something about gaining control over the victim might include chemically.

Does that mean through drugs or alcohol, for example?

A. Yes.

Q. You also mentioned choice of a weapon, whether a weapon was used could be significant, and you mentioned asphyxial deaths.

Is there any particular significance in your experience to asphyxial deaths and, in particular, strangulation-type deaths?

A. There is a difference.

Q. Please explain that for us.

A. In the state of California roughly, if I remember my 1998 statistics from the Department of Justice, approximately seventy - 75 to 78 percent of the homicides committed in the state of California are committed by a firearm, more often than not a handgun.

In the state of South Carolina, approximately 56 percent of the homicides are committed by a firearm. The remaining types of modality are usually blunt force trauma or cutting and stabbing incidents.

Asphyxial deaths fall roughly at least in the state of California, they don't block them out individually, they fall into the roughly 10 -- less than 10 percent all over categories.

That information holds true to our education and our experience in that asphyxial deaths, in other words, ligature or manual strangulations, seem to be more of a personal and emotional type of killing as opposed to individuals who choose to use a gun.

So it's different on its surface because it is out of the general norm. It's not completely unusual. It's not unique, but it is different.

Q. When you say of a personal type of nature, what do you mean by that?

A. Well, first of all, you are up close and personal. And when you strangle someone to death, you would have to literally lay your hands or be close enough to put the ligature around their throat to kill them.

By contrast, a handgun is fairly distant. We do have cases involving people with handguns who put the gun up to a person's temple and fire the gun five times. I would say that is personal.

It seems like we are splitting hairs, but you don't physically have to touch the person when you are killing them. So there is a difference between individuals who choose strangulation as opposed to individuals who choose to use the firearm. It's just one piece of the analysis.

Q. And why is the method used to kill, why is that part of that secondary step that you are talking about?

A. Again, these are -- these are things that we look at for the what happened and how did it happen. It's a par5 of the puzzle, if you would, because, again, these are choices that the offender makes during the commission of the

violent crime. And, again, those choices can be long and drawn-out and deliberated, and sometimes those choices occur very rapidly.

But, again, it's the overall picture of what happened during the commission of the crime.

Q. All right. So you have talked about where the crime occurred, method of approach to the victim, how the victim was controlled and the type of instrument or the type of methodology used to kill.

A. The method of killing.

Q. Anything else?

A. Is there any sexual interaction with the victim? Is there any evidence of what was referred to as overkill, in other words, more injury than is necessary to kill this person? Is there any evidence of torture, mutilation of the body, again, any binding or control of the victim? Those type of extreme cases are looked at.

However, if they are not present, that also explains part of things, because part of the evaluation is not just looking at what happened, but what didn't happen also is part of the analysis.

Q. Okay.

A. The sexual interaction, whether it was done before, during or after death, what type of sexual interaction and then, after the murder, what the offender does with the body. There are limited number of choices that are available to an offender after one person kills another.

Q. What are the choices?

A. One choice is to simply leave the body where it is, where it has fallen and walk away, flee the scene.

One can display the body or pose the body at the location where the body is found right where the murder occurred to make some type of statement, either to make a statement to the people who are finding the body or for some type of meaning that is personal to the offender.

Offenders also have the choice of intentionally altering a crime scene, to stage the murder to look like something else, an attempt to make the murder look like a suicide, attempt to make the murder look like an accident, to make the murder look like a robbery that's gone bad or a rape that's gone bad or a burglary that's gone bad, some other type of underlying crime.

An offender may choose to transport the body, transport the body short distance, transport the body a long distance. And then once the body is transported to a disposal site, again, the choices are, you can just dump the body and walk away, you can pose the body for some type of significance or you may even try to stage the body to look like some other crime or make a really concerted effort to conceal the body, such as burying it, extreme cases of 55-gallon drums with concrete buried somewhere, a lot of physical effort to ensure that the victim's body is not found. So these are the options, if you would, that a person bas.

Q. Okay. All right. Any other factors you take into account? Have we covered them?

A. Once the body is -- once the body is discovered, the presence or

the absence of clothing, the presence or absence of any interaction after the victim is dead, any postmortem interaction with the victim.

Do we have any evidence that suggests that the offender made a conscious effort to destroy or conceal physical evidence, such as semen, hairs, fibers and the like? Was the murder weapon disposed of? Was the murder weapon found? If so, where? If a victim's body was transported, the proximity to where the murder occurred, if that's known.

All those -- all those and probably other indications or pieces of information are considered. Generally that's what is used in the analysis, some cases this information -there is a lot of information available, and in some cases there is little or no information available.

Q. Well, let's talk about this specific case at this point.

Did you begin by looking at victimology?

MR. HERMAN: Your Honor, I would like to, rather than interrupt the flow of Mr. Prodan's information, can I reserve my voir dire of his qualifications?

THE COURT: Okay.

MS. FLADAGER: All right.

THE COURT: Go ahead.

MS. FLADAGER: Q. Agent Prodan, did you begin by looking at what you describe as victimology as it related to the victim in this case, Genna Gamble?

A. Yes, ma'am.

Q. Can you please explain to us what you looked at, and as you do that, kind of why those things were significant to you?

How did you approach it?

A. It started off generally with a conversation with Detective Hans Bosma and Investigator Linda Weidman who came to the offices of the Department of Justice in Sacramento.

General case consultation was held. Investigative materials were brought, which involved the investigative reports, the autopsy reports, laboratory reports, crime scene photographs and autopsy photographs.

They provided the general background of the victim, roughly 14-year-old Caucasian female who resided in her home with a mother, a stepfather and an older brother.

We were provided information that she was a problem in the home based on an evaluation by a marriage, family and child counselor, that there was a lot of conflict involving this child in the home.

She was not known to be sexually promiscuous, in other words, that she was not having sexual intercourse with a lot of different men or women. She was not known to be a drug abuser ever. She was not using crack cocaine or injecting heroin or using LSD on a daily basis or other hallucinogenic drugs.

She was not -- the information provided was that she was not abusing alcohol. We were told that she had no history of running away from home, even though there was a lot of conflict in the home based on her behavior.

She did not have any previous criminal history at all, if I recall. She was not known to be out late at night.

She was not known to hitchhike. She was not known to invite strangers into the home or invite a lot of -- I should say strangers into the home when her parents were not at home.

All this information was provided to us by the investigators.

Q. Okay. Did you take a look at the or consider the neighborhood where she lived?

A. Yes. It was told to us it was fairly middle class. I believe it was on a fairly secluded street, not a through street.

I asked and was told that there was no similar crimes in the general vicinity. In other words, there was no --there were no unsolved murders, there were no residential robberies or rapes that had occurred. There was no evidence of peeping Toms or other sex offenses that had gone unsolved - reported and unsolved in the neighborhood.

As I recall, the majority of the crimes were daytime residential burglaries, maybe some disturbance of the peace type calls involving juvenile parties and the like.

Q. Okay. Based upon the information - well, let me ask you this: You mentioned the marriage, family, child counselor. Did you review records that were provided to you coming from this counselor?

A. Yes, ma'am.

Q. And in those records, did you consider information dealing with her behavior problems?

A. Yes, ma'am.

Q. Did you also consider information relating to suggested -- a suggested method of controlling Genna which was put forth by the counselor?

A. Yes, ma'am.

Q. And what was that?

A. There was a notation that there was a suggestion by the counselor that when the victim had these emotional temper outbursts that a means of controlling her would be to grab a hold of her, pin her down to the ground and just hold on to her until the -- my term, the temper tantrum or the emotional outburst had passed.

Q. Okay. Now, when you gave the initial recitation in terms of her age and not known to abuse alcohol or drugs, no history of running away, that kind of thing, based on that information, were you able to come to a conclusion as far as whether you would classify her as low risk or high risk?

A. Yes, ma'am.

Q. And what was that?

MR. HERMAN: Again, before his opinion, I would reserve my voir dire and allow this to go on.

THE COURT: Okay.

MR. HERMAN: I'd ask questions that may change his opinion.

THE COURT: Okay.

MS. FLADAGER: Q. You may answer the question. Did you have an opinion?

A. She would be generally described as low risk. Her risk would have been elevated if the crime had occurred in public or out of doors because of her age. At the age of 14, children's risks are elevated, vulnerability.

But the fact that it appears provided from the information provided that the original approach occurred in the victim's own home, midday, the risk would be very low for her to become a victim of violent crime, which I have to preface saying that a violent crime by a stranger.

Q. And why do you preface it -- what's the significance there?

A. Again, the higher the risk, the more likely the person would be susceptible to become a victim of a violent crime by a stranger, a predatory type of individual.

Q. Now, when you say the higher the risk, do you mean for a victim who appears to have a high-risk lifestyle, high-risk factors?

A. Yes, ma'am.

Q. That's the kind of person that is a higher risk of a crime of violence by a stranger?

A. Yes, ma'am.

Q. Okay. And so this next step from that would be what? What follows from that?

A. I'm sorry, I don't -- you mean from the analysis or --

Q. No, from -- if you talk about a high-risk victim --

A. Uh huh.

Q. -- is more at risk of becoming a victim of violent if you have a low-risk victim, what

A. Typically, based on our training, education and experience, is that the lower the risk involving murder, you investigate -- you look for the offender to have some type of relationship with the victim or the location where the crime occurred.

Now, this relationship can be very close, but there is some type of relationship. The vast majorities of murders are not committed by total strangers. There is usually some type of an association between the victim and the perpetrator.

Q. Okay. Going back real briefly to the information that you gleaned from the marriage and family counselor, did you learn any more details relating to Genna Gamble that affected or played into your analysis of how to look at her?

A. The general description is that she was aggressive, argumentative -- I don't want to say the word combative, but obstructive; in essence, an opposite of what we would look at of a victim who, when, even though she was only 14 years of age, would not go - would not be meek and passive when confronted. The information provided was that she would, at least in certain circumstances, be aggressive.

Q. Okay. Now, did you also get some information regarding a diagnosis or a conclusion, I guess, made by the counselor regarding Genna herself?

A. Yes, ma'am.

Q. And what was that?

A. As I recall, it was described as oppositional defiant disorder.

Q. And did that play into your analysis, as well?

A. Well, I am not a counselor and I'm not a psychiatrist or a psychologist, though -

MR. HERMAN: Then I would object to any characterization of oppositional defiant disorder on the the witness.

THE COURT: The question was did it play into his opinion or not. Is there an objection to that question?

MR. HERMAN: No, but I will object to -- if he wants -- the answer is yes or no. He answered yes.

THE COURT: Well, as to that question, I'll allow it.

Go ahead.

MS. FLADAGER: Q. In what way?

A. The counselor's description of her as being combative, a problem, outbursts, temper tantrums and the like, and that information was considered.

Q. All right. And in order to consider that information and what you received from the marriage and family counselor, as an expert, did you take a look at what this disorder is supposed to be, this oppositional defiant disorder? Did you look into that?

A. I looked up the definition in the Diagnostic and Statistical Manual of Medical Disorders, which is a reference book for mental health professionals, yes, ma'am.

Q. And is that something you deal with when you're doing this type of analysis that you're telling us about?

A. If the information is provided, particularly by some type of mental health professional as a diagnosis that they have offered, then, yes, we would look it up in the book and glean what they actually mean.

Q. Okay. And when taking a look at that, did you learn that that was something which tends to become evident or displayed with parents or authority figures?

A. That's what the book says, yes, ma'am.

Q. Did you take a look at the autopsy report?

A. Yes, ma'am.

Q. And can you tell us, please, what you gleaned from that report and how it played into your analysis? What was significant to you in the findings?

A. The cause of death was determined to be ligature strangulation. The ligature was not found on the body, nor was it found at the scene, nor was it found at the location where the body was recovered.

There was evidence of some blunt force trauma to the face, but there was not extensive blunt force trauma, such as a skull fracture. There was no broken cheek bones broken nose.

Some type of type of physical interaction occurred between and the victim, most likely prior to the strangulation. There was some minor defensive injuries on her hands and arms, suggesting that there was some type of attempt at defending herself.

There were no gunshot wounds, there was no stab wounds, there was not an extensive amount of what we refer to as overkill. There was no evidence of torture, mutilation. There was no evidence of binding of the victim.

There were some minor injuries to the body, which, as I recall, the pathologist said were consistent with roughly near the time of death or after the time of death, were consistent --

MR. HERMAN: I'm sorry, Your Honor, I didn't hear the question and answer. If I may? I do apologize. ask that it be read again?

THE COURT: Which is easier, to read it back again?

MS. FLADAGER: Probably to read back sentences.

MR. HERMAN: If I could ask the question and answer? I do apologize.

(Whereupon the record was read as requested.)

MR. HERMAN: Thank you.

MS. FLADAGER: Q. So the injuries death were consistent --

 

A. AS I recall, the pathologist said they were consistent with being sustained as a victim's body was disposed of and dumped --

MR. HERMAN: I would object, Your Honor. That's -- that misstates the evidence. It's not in the autopsy and it is not -- would not even be in the pathologist's purview to make a - a conclusion such as that.

THE COURT: I'm going to overrule the objection at this point, subject to cross examination. If it's appropriate at a later time, you can raise the appropriate motion.

Q. Agent Prodan, do you recall in the pathologist's report a statement that there were a number of perimortem injuries consistent with underbrush and perhaps barbed wire?

A. That's my understanding in the autopsy report.

Q. Did you see any indication that there were any fingernail marks?

A. I did not. At that least I should say that the marks we typically see.

Q. What do you mean by marks that you typically see?

A. On occasion, particularly when a victim is not bound or physically restrained or chemically restrained, when a person puts an object around another person's neck to strangle them, it is a natural reaction for an individual to reach up and try to remove that ligature from their neck if they are restrained in some way.

On occasion you will find marks on the victim's neck which are very closely resembling fingernail marks, scrapings or actually half-moon indentations. I any marks like that on the victim's throat.

Q. Okay. Do you see that in every case of a strangulation?

A. No, you do not.

Q. Okay. But you do occasionally see it.

A. Yes.

Q. Did you -- when you were examining the autopsy report and taking a look at the photographs in the autopsy, were you looking for any evidence of sexual assault?

A. Yes, ma'am.

did not see

Q. Why?

A. Again, it would be behavior displayed by the offender during the commission of the crime. It would --the sexual interaction with the victim, either before or after death is part of the analysis.

In this particular case, there was no injury described by the pathologist to the internal or external genitalia. There was a notation that the hymen was not intact. There was no injury to the anal area. There was no injury to the other sexual parts of the body, such as the breasts or the thighs or the buttocks.

As I recall, swabs and slides, oral, anal and vaginal swabs for the presence of semen were determined to be negative.

Q. And all of that plays into your analysis.

A. Yes, ma'am.

Q. Did you also make any notes - you were advised the victim was found nude, correct?

A. Yes, ma'am.

Q. And was there some observations regarding the condition of the bottoms of her feet?

A. Yes, there was.

Q. What was that?

A. They were relatively clean.

Q. Explain to us, when you take a look at this part of the evidence, autopsy and photographs, how or why the negative findings that you describe for sexual assault would be important.

A. The fact that there is negative findings strongly suggests that the death did not have a sexual component. In other words, one of the -- one might be -- one would be able to eliminate sexual assault as one of the motives for the killing. Either the victim was killed to eliminate the only witness, let's say, of a rape; the victim was killed incidental to the rape; or that the offender had some type of sexual motivation compelled with violence to have the underlying cause to murder the victim.

The absence of sexual interaction leads one to conclude that those reasons were not part of the overall explanation why this murder occurred.

Q. Ordinarily, if you are told that a female's body, nude body, is found and she was strangled, are there certain conclusions that you might -- not conclusions, are there certain thoughts that immediately come to mind?

A. There are.

Q. Okay. And what are those?

A. Whenever -- again, based on our training, education, research and experience, whenever you find female -- females nude and with the method of death strangulation, one can -- one should look very closely for any other indications of a sexual interaction.

There are some individuals, some offenders, who have that type of interaction with their victims, in other words, they are predators in such a way that they seek out victims for their own personal needs, usually involving power and

control and sexual interaction with a victim.

And we do find those victims disposed of sometimes totally nude, sometimes partially clothed and, more often than not, the method of death is an asphyxial death of some kind, either manual or ligature strangulation.

So the fact that, in this particular case, the victim was found nude and was found strangled, to do a proper analysis, one would have to look very hard to make sure that that is or is not a possibility of the component -- of the reason for the murder.

Q. Did you do that?

A. Yes, ma'am.

Q. Are there other reasons why, in your training and experience, bodies are disposed of nude?

A. Yes, ma'am.

Q. What are those?

A. One possibility is that it's incidental to the crime. In other words, when the victim and the offender first came in contact, the victim was nude. The victim was killed, and the offender just chose, why bother to redress a dead body. So the body is disposed of nude or at least where the killing occurred nude.

Another possibility, which is more likely than the first, would be that the clothing is removed to delay identification of the body. The clothing is removed to hasten animal and insect predation, to dispose of the body more quickly, to have the body decompose easier rather a lot than having it confined in clothing.

There is also the possibility that the -- that an offender would dispose of a body nude in the hopes that the investigators would assume that this is some type of sexually-motivated serial killer, in essence, trying to stage the crime to make it look like something it isn't.

Those are all possibilities why a victim's body could be found -- would be found nude.

Q. When you say clothing could be disposed of to delay identification, how would disposing of clothing delay identification?

A. Well, typically when a victim's -- when a body is found in an outdoor location, if there is no immediate identification of the body, the first -- the first effort that investigators need to find out is who is this person, because very likely the identity of the victim will lead you to why was this person selected to be a victim which will lead you to the offender.

So a significant amount investigation when a body is of effort is done in a police found, if there is no physical -- if there is no identification on the body, then the officers have to rely on physical descriptions of victim.

Now, if the victim's body has not been found for a significant period of time and the facial features are no longer available for a description, the hands are no longer available for fingerprint identification, then the next best thing would be the general physical appearance of the victim, if that's possible, male or female and of description of the clothing.

Do we know -- does anyone know a sixteen-year-old boy who is most likely Caucasian, who was wearing a plaid sweatshirt and blue or green dungarees? If the clothing is not available, that's one more piece of identifying information that the investigators do not have and it delays the investigation even more as to the identity of the victim.

Now it is a matter of relying solely on DNA possibly, stomach contents or some other means of trying to identify who this victim is. On occasion there are victims who are found who are never identified.

THE COURT: Ms. Fladager, if this is a convenient point, why don't we take a stretch break here before we continue.

Let's go ahead and take our morning stretch break here. Be back at five till. Then we will resume with testimony, then, at that time. Please keep in mind the admonition I gave you before. Don't talk about the case. Don't form or express any opinions.

See you back here at five till.

(Whereupon court recessed at 10:43 a.m.)

-Page 45 Missing-

Then it's simply a matter of sitting down and going through an assessment of what the victim's risk level, an assessment of how the victim -- where the crime occurred --

MR. HERMAN: Your Honor, I would object that the -there is no foundation for this witness to do the type of analysis, which is a forensic science analysis of the crime scene, that he is about to testify to.

His background that he has given to us is as a person who has a capacity to do profiling, behavioral analysis and motivational analysis.

The type of analysis he is about to launch into is within that framework of an actual crime scene reconstruction analysis, in which you have to have proper forensic scientific training.

THE COURT: Did you want to voir dire at this time?

MR. HERMAN: Yeah. I mean, I'll do it on that basis.

MS. FLADAGER: If I can clarify, though, however, before we move into that?

MR. HERMAN: If you wish.

MS. FLADAGER: Q. Agent Prodan, in terms of the question that I asked you, am I asking you as a crime scene reconstructionist - was that your understanding of my question?

A. No. My --

Q. What was your understanding of my question?

A. The crime scene analysis involving the behavior.

Q. Okay. And is that something -- how is it that you get to behavior?

A. Very simply, you make an evaluation as to why was the victim selected, what happened, how did it happen --

MR. HERMAN: "What happened," Your Honor, is a crime scene reconstruction by definition. "What happened" equals crime scene reconstruction. He is not a forensic scientist. He cannot tell us what happened. He can talk about behavior and risk management, but not what happened or where it happened, which is crime scene reconstruction.

MS. FLADAGER: I think we're getting a little bit into semantics here.

MR. HERMAN: No, not at all.

THE COURT: Well, give MS. Fladager a chance here.

MS. FLADAGER: Agent Prodan was continuing to answer the question.

Q. When you say we're not talking about crime scene reconstruction, but you're taking into account where the crime happened and what happened, what do you mean when you say "what happened"?

MR. HERMAN: Your Honor, where it happened is -- has been an a priori assumption by this witness in his testimony. Where it happened is a crime scene reconstruction issue. Now, I haven't objected, because that's an a priori assumption. I'll get into that in cross-examination.

But crime scene reconstruction is exactly what it says, is reconstructing the crime, meaning where it happened, when it happened, and how it happened.

And that takes forensic scientific knowledge, which this witness has not shown, and has said, 'I am not a forensic scientist," and would never suggest that he was.

THE COURT: DOoyou want to voir dire, then, at this point?

VOIR DIRE EXAMINATION

BY MR. HERMAN: Q. You're not a foreign scientist, are you, sir?

THE COURT: Go ahead. You can answer.

THE WITNESS: I have never qualified as a forensic scientist. I have qualified as a crime scene analyst.

MR. HERMAN: Q. Right. And your crime scene analysis relates to behavior, risk management and victimology?

A. In part, yes, sir.

Q. Right?

A. In part.

Q. So you're telling us where a crime occurred is a reconstructive event?

A. Not necessarily, sir.

Q. Why is it not necessarily? If you have to look at physical evidence and make a determination of where the crime occurred, how is that different from a forensic scientist's reconstruction of the events of a crime?

A. Well, my understanding of a forensic reconstruction has to do with items such as blood spatter interpretation, firearm trajectory, and the like.

TO determine where the crime occurred may be something as simple as speaking to a witness who says, 'I saw the person shoot John in the bathroom."

Q. Okay. But crime scene reconstruction can be defined as determination of the actions or acts occurred surrounding the commission of the crime?

A. Yes, sir.

Q. And that's crime scene reconstruction, and its boundaries are physical evidence in which you need a forensic scientist; that's true, sir?

A. In part, yes, sir, but not in total.

Q. You're not a forensic scientist? You've had a couple of courses under FBI tutelage and other tutelages in the basics of forensics; correct?

A. I would say more than a couple of courses, but you're basically correct, sir.

Q. Okay. You're not a forensic scientist.

MR. HERMAN: And, therefore, I object, Your Honor, to any testimony by this witness that relates to crime scene reconstruction. If he has testimony of somebody that saw Genna Gamble being strangled, he can then tell us where he got that and which report it was and then why he used that in his analysis. Unless there is specific testimony or evidence, he cannot reconstruct whether the victim was killed at her house, in front of her house, or on the moon. It is not in his purview of expertise.

THE COURT: At this point, as far as expressing any forensic opinions, I would sustain the objection to that.

I'm not going to make a finding that the only way to establish the information being requested, though, is through forensic opinions. As far as the ultimate questions about -- well, no, I think I'm going to leave it at that at this point.

So I'm going to find that there is sufficient basis to proceed to ask questions related to crime scene analysis.

Now, as far as whether or not they are forensic opinions, I guess we will have to make that call once we hear the question.

MR. HERMAN: How would you, for the record, Your Honor, define crime scene analysis as opposed to crime scene reconstruction so that we can have ground rules in which I can object?

THE COURT: I can only deal with the objections based on the questions being asked and I don't know of any better way to do it than that, so at this point that's how we will proceed.

MS. FLADAGER: Thank you.

THE COURT: Go ahead.

DIRECT EXAMINATION (RESUMED}

BY MS. FLADAGER: Q. Agent Prodan, before I jump in that next area, let me ask you this question: Forensic science, that's a pretty broad term, isn't it?

A. Yes.

Q. Can you tell us what that encompasses? If you want say somebody does forensic science, what kinds of things does that encompass?

A. Basically it's the application of science as applied to the law.

Q. And that's the definition?

MR. BERMAN: Science as applied to the law? I'm sorry, I didn't hear that.

THE COURT: Correct.

MS. FLADAGER: Q. So it can cover things like someone who does autopsies could be a forensic scientist?

A. Well, a forensic autopsy, yes, as opposed to a hospital autopsy. Wound pathology and the like, yes, ma'am.

Q. And someone who takes a look at crime scenes could be a forensic analyst; is that right?

A. Yes, ma'am.

Q. Because they're looking at something which relates to the law?

A. Yes, matam.

Q. Let's go ahead and talk about crime scene analysis. You've been talking to us a little bit about the general method of how you approach that and what evidence you take in. Let's move into directly talking about this particular case.

Did you rely on, as you said, police reports that were provided to you?

A. In part, yes, ma'am.

Q. And the interviews with the

A. Yes, ma'am.

Q. All right. Based upon that information, did you come to an opinion as far as whether Genna Gamble inside of her home?

A. I came to an opinion as to where the first contact occurred, yes, ma'am.

MR. HERMAN: I would object. The answer is nonresponsive. The question was very specific.

THE COURT: I am going to overrule the objection.

MS. FLADAGER: Thank you.

Q. What was that opinion?

A. That the most likely in my opinion, the most likely contact between the offender and the victim occurred inside her home.

Q. What did you base that opinion upon?

A. I was given information from the investigators that, from the last time the victim was last seen physically alive and then a series of telephone conversations with a girlfriend put the last time anyone saw or heard the victim alive was approximately 11:25, 11:27, 11:30 in the morning.

The victim's body was discovered approximately 2:30, 2:20 in the afternoon the same day. The window of opportunity for the contact between the offender and the victim was relatively small.

There was no information provided by the investigators that the victim had left the residence. There was no clothing missing as reported by the investigators that belonged to the victim. She was described, I believe by her mother, wearing a windbreaker and a pair of blue and white boxer shorts. That clothing was not found at the scene --or I should say found at the residence.

There was no information provided by the investigators through their investigation that there was any witnesses or information that the victim had left the residence.

So based on that very small window of opportunity, three hours, and without information to the contrary, my opinion is that the most likely explanation is that the offender and the victim first made contact with each other inside the victim's home.

Q. Okay. Where do you go from that opinion? What's the next thing that you take a look at?

A. I don't know if it's the very next thing, but part of the evaluation of the analysis is the approach and the method of control and the method of death.

Q. Okay. Did you come to any opinions about those things?

A. Yes, ma'am.

Q. And what were those opinions?

A. Based upon the description of the residence from the investigators, the injuries sustained by the victim as described in the autopsy report, my review of the photographs at the autopsy and at the crime scene, it is my opinion it appears there was not a major confrontation between the victim and the offender.

When I say "major confrontation," I mean, there was no information provided that there was broken or overturned furniture, any evidence of a significant struggle. There was no extensive defensive injuries on the victim as described by the autopsy protocol. There was not a significant amount of blunt force trauma as described in the autopsy protocol that would have rendered the victim incapacitated, such as a blow to the head which would fracture the skull.

All those indicate that the this first contact occurred either by the offender lying in wait, in other words, totally surprising the victim, or that the victim, when first observing the offender, did not believe that that person was going to do her significantly great bodily harm or death, thus allowing the offender to get close enough to assault the victim and ultimately strangle her to death.

Q. How do you come to that conclusion?

A. Part of it is what is not there. Again, there was no evidence of a significant struggle. There was no description of torn -- torn-up furniture or knocked-over items in the residence.

There was nothing to suggest that someone had forced their way into the residence and accosted the victim and that the victim then tried to defend herself in some way.

That also indicates that there was not an argument or a discussion that escalated to an argument that escalated into a physical confrontation that escalated into people involved in a knock down, drag-out fight in the residence.

Through the investigators, no information was provided that any screams for help were heard by the neighbors, again, remembering that this is a Saturday, midday. So that information is absent.

There was no indication that the victim was bound in any way or chemically restrained as described by the autopsy protocol and the toxicology reports. So the most likely explanation is that the victim and the offender came in contact in the residence, that the victim was either taken totally by surprise by the offender or had knowledge of the offender where she did not believe this person was going to kill her until it was too late.

Q. Okay. Did you then take into consideration the location of where her body was found?

A. Yes, ma'am.

Q. And what information were you provided?

A. The investigators' reports, the crime scene -- or the body recovery site was taken into consideration.

Q. Okay. And what does that information lead you to conclude?

A. The crime scene photographs, provided by the investigators and the information provided by the description of the injuries in the autopsy reports strongly suggests that the victim was not killed at precisely the same location where her body was found.

In other words, she did not walk to the area where her body was specifically found. And when I say "specifically found, I am referring to the area on the slope down by the tree and adjacent to this creek bed.

The information strongly suggests that her body was disposed of there by the offender. This indicates that the offender believed that the body had to be transported from where the killing occurred to this location.

Q. In your experience, why is it -- if someone makes contact, for example -- let me ask it more generically.

Why would that happen? Why would that be necessary?

A. To transport a body?

Q. Yes.

A. Generally offenders transport bodies because they believe that, if a body is discovered where the killing occurred, it will facilitate their identification and apprehension to the murder, so they feel compelled to transport the body to delay the discovery of the murder of itself, possibly to delay the identification of the victim, which also delays the investigation and to distance themselves so that they might be able to establish alibis and reasonable explanations for their behavior or for what they did either before, during or after the commission of the crime and, again, to delay their identification, apprehension for being the person who killed the victim.

Q. And in the information that you received regarding the scene where the body was found, any indication of a ligature being found?

A. There was no information in the investigational materials that I was provided that a ligature had been found either inside the residence or at the scene where the victim's body was found or on the victim's body.

Q. And any indication of clothing at the scene? Or where her body was found?

A. No clothing was found at the scene is the information I was provided.

Q. Now, when you previously described Genna Gamble as being perhaps what would be called a low-risk victim, an approach in a neighborhood, midday, Saturday, by someone to a home, would that be low risk or high risk?

A. For the offender?

Q. Yes.

A. It would be relatively high risk for the offender.

Q. Why is that?

A. Midday, especially on a Saturday, the potential of people in the neighborhood seeing this person arrive at the scene, or I should say arrive at the residence and leave the residence, there's a risk that the offender cannot totally control, so it elevates their risk of being seen coming to the residence or leaving the residence.

Now, that risk may be offset in the offender's mind based on a number of factors.

Q. Such as?

A. Such as the offender belongs at the location, such as the offender has been seen at the location before, such as the offender has a reasonable explanation for being there. That information being available to an offender will offset the risk in their mind and so they proceed.

Q. Okay. What does the phrase "situational felony murder" mean to you?

A. It is a phrase that describes a murder that occurs during the commission of another felony in which the murder is not preplanned as part of that felony. Typically, they are murders that occur during the commission of burglaries, robberies, sexual assaults, in which, for lack of a better term, something goes terribly wrong. The offender did not plan to commit a murder. The offender planned to commit a robbery, a burglary, a car theft, a sexual assault.

Circumstances, either a reaction the victim, resistance by the victim, a belief of the offender that they will be identified and apprehended, causes, or I should say motivates the offender to kill the victim of the crime, the other felony, and thus escalates a -- one felony into a murder.

Q. Did you look at the circumstances as you knew them in this case with an eye towards determining whether or not this might be a situational felony murder?

A. Yes, ma'am.

Q. And what -- do you have an opinion based upon that?

A. Yes, ma'am.

Q. And what is that opinion?

A. The indicators that would suggest that it's situational murder are absent. There is no evidence of forced entry. There was no evidence of forced entry provided to me by the investigators in their evaluations and their investigations. There was no information provided me that any property was missing from the residence. There was no indication, with the exception of the victim's body being found nude and strangled, which may suggest other -- which, even though, it may suggest a sexual component, there are other reasonable explanations for that event. There's no indication that this was a sexual assault that went bad.

There was no information provided to me that this was a kidnapping for extortion that went bad.

So what's not there suggests that this was not some other type of felony, a burglary, a robbery, a sexual assault, a kidnapping for ransom, that went bad.

Q. Okay. If this had been something similar to someone who wanted to burglarize a home, for example, and surprised the victim at home and it turned into a situational felony murder, under those circumstances, would you expect to see a body transported from the victim's home?

A. No, you would not.

Q. Why not?

A. Because there would be no there would be no purpose for transporting the body. If this was a burglar, with little or no personal contact with the victim or the residence or any other members of the residence, and it was a burglary that simply went bad, there would be no reason for the burglar to continue at this high risk of being apprehended by transporting the body to another location. Typically in those types of cases, we see that during the commission of a burglary that goes bad, the victim is left at the scene and the burglar flees the location.

Q. Okay. When you were looking at this particular incident, there were certain items that, to you, were significant in terms of behavioral evidence; is that right?

A. Yes, ma'am.

Q. Okay. Can you just give us examples of what those things are, the behavioral evidence that was significant in this analysis?

A. The window of opportunity to commit the crime; the high risk location of the offender; the low risk of the victim; the method of killing; and the transportation of body.

Q. Okay. Based upon the analysis that you've just described and the opinions that you put forth, you have the opinion you've sated that Genna Gamble was a low risk victim. Do you have another opinion that goes along with that relating to who might have killed her or what a relation would have been?

A. Yes, ma'am.

Q. And what is that?

MR. HERMAN: I would object to the question and answer. As he bas stated at the beginning, it is not his job of profiler to define who may or may not be the defendant. Or the offender.

THE COURT: At this point I'll sustain the objection without a further offer of proof outside the jury's presence.

MS. FLADAGER: All right. Or maybe I can rephrase the question and it might --

MR. HERMAN: And if you rephrase it, I will object to it if it comes up with the same issue.

THE COURT: Well, let's proceed and see where we're going.

MS. FLADAGER: Okay.

Q. With the information you've given regarding a high-risk location for the crime, low-risk victim, window of opportunity being small, the transportation and dumping of the victim's body, the risk associated with transporting a body, the benefits, risk benefit analysis, essentially, in terms of transporting a body, do you have an opinion as to whether a complete stranger would be someone who would be involved in this crime?

A. Yes, ma'am.

Q. And what is that opinion?

A. It is unlikely in my opinion that this murder was committed by a total and complete stranger.

Q. Okay.

A. It is easier to say what this crime isn't as opposed to what it is.

Q. And ultimately when you say that, what do you mean by saying it's easier to say what it isn't?

A. As I described before, it does not appear to he a situational felony murder, that another felony was committed and it went terribly wrong. It does not appear that this individual -- that the victim was abducted by a sexual predator and then discarded.

So, in essence, by excluding the other possibilities, the other possibility as to the motive in the commission of this murder is that it is personal.

MS. FLADAGER: I have no further questions.

THE COURT: Mr. Herman?