State of California v. Douglas S. Mouser
County of Stanislaus, Case No. 139818
November 18, 1999


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

--DAY 1 of 2--

Before the HONORABLE DONALD E. SHAVER, Judge Presiding Thursday, November 18, 1999, 11:17 a.m.

DIRECT EXAMINATION EXCERPT OF BRENT E. TURVEY, M.S.

APPEARANCES OF COUNSEL:

MS. BIRGIT FLADAGER, Deputy District Attorney, and MR. JOSEPH I. "RICK" DISTASO, Deputy District Attorney, on behalf of the People of the State of California.

MR. RICHARD S. HERMAN, Attorney at Law, on behalf of the Defendant.

LAURIE CHAMBERLAIN, CSR 7898
Official Court Reporter
800 Eleventh Street
Courthouse, Modesto, California, 95354

Thursday, November 18, 1999, 11:17 a.m.

THE COURT: Who's your next witness?

MR. HERMAN: Brent Turvey.

THE COURT: Okay, Mr. Turvey. If you'll come on up to the witness stand here and raise your hand and be sworn here.

BRENT E. TURVEY, M.S., called as a witness on behalf of the Defense, being first duly sworn, was examined and testified as follows:

DIRECT EXAMINATION EXCERPT

BY MR. HERMAN:

Q. Now, in this case before you, you have -- you were hired by my office.

A. Yes, I was.

Q. To do what, sir?

A. You asked me to review the case and review the material in terms of victimology, in terms of primary and secondary scene determination, and you asked me whether or not I felt there were any sexual aspects to the case.

Q. And you were given material to review.

A. Yes, I was.

Q. Can you tell the jury what material you were given to

A. Yes, I can. Primary material that I was given was investigators' notes, reports, and interview summaries from law enforcement. Detective Hans Bosma's interview with Brian Hair. The criminal history of Brian Hair. Criminal history of Eric Gonzalez.

Crime scene photos. There are probably between what appeared to be more than a hundred crime scene photos and autopsy photos. A crime scene video.

I also visited the crime scene off Tim Bell Road on two separate occasions, one with Dr. Thornton. I visited the cul-de-sac at Carlisle Court here in Modesto. I did not actually go into the residence.

I have reviewed the physical evidence examination reports of the D.O.J. Criminalist John Yoshida. I reviewed the physical evidence examination reports by Criminalist Katina Beasley.

I examined or reviewed the report of the photogrammetrist for the State, Gary Robertson. I read the photogrammetrist report of Richard Vorder Bruegge in relation to Mr. Robertson's report.

I reviewed the autopsy photos and autopsy reports done by Dr. Lawrence of Delta Pathology.

I reviewed the sexual assault exams of Doug and Kathy Mouser and Gerren Gamble. I didn't look at the evidence; I looked at results.

I reviewed the notes of M.F.C.C. Isabel Van Sicklen. I reviewed the report by Michael Prodan. I reviewed the testimony of Michael Prodan at the preliminary hearing and also reviewed the testimony of Michael Prodan here before this jury.

I reviewed the personal diary of the Genna Gamble. I reviewed the personal address book of Genna Gamble. I reviewed the personal calendar of Genna Gamble. And I reviewed personal letters written to and by Genna Gamble to and from various individuals in her life.

I reviewed the criminal history of Gerren Gamble, her brother. I reviewed the defense investigator's reports and interview summaries. And I believe that is Maxwell Investigations. And I reviewed the crime reconstruction that was done by Dr. John Thornton as well as the testimony of Dr. John Thornton.

Q. Is a knowledge of forensic science and opinion -- does a knowledge of forensic science have a relationship to victim risk in your opinion?

MS. FLADAGER: Objection. Vague.

THE COURT: Do you understand the question?

THE WITNESS: It's not asked very well. Could you ask that again. I'm not sure what you're trying --

BY MR. HERMAN:

Q. You have a forensic science background?

A. Yes, I do.

Q. And you read all the aspects of the forensics in this case.

A. Yes, I did.

Q. You've been to the scene to look at the scene? Right.

A. Right.

Q. On more than one occasion?

A. That's correct.

Q. Then you viewed the videotapes and all the pictures of the crime scene.

A. Yes.

Q. Why was it necessary for you to do all of that aspect that would relate to the scientific or physical evidence of this case?

A. Essentially, I would argue that forensic science, and crime reconstruction which comes out of the forensic science, is a crucial part of establishing the behaviors that occur in the crime. And if you don't do that, then you are left having to assume or rely upon potentially bad or incomplete information from which to make your analysis.

Essentially, the relationship between the analysis that I did and forensic science is that crime reconstruction gives me the behaviors that I need to make my analysis.

Q. Is that why you spent time reviewing Dr. Thornton -- i.e., all of the pictures and diaries, all the physical evidence, and then reviewed Dr. Thornton's report and testimony?

A. Yes, it is.

Q. Why is that?

A. The reason, again, is because if I haven't established what's occurred in the crime, then if I were to give an opinion I would be giving an opinion based on things that I don't know or hadn't established, and to do that would not be ethical.

Q. In terms of your -- in terms of the concepts of assessment of your opinion, can you tell us the place of assumptions.

A. Well, assumptions really have no place in any kind of forensic analysis.

They have a place in the investigative process where you come up with all sorts of ideas. And maybe you're speculating and you're brainstorming and you develop certain theories and you put them out there, but the point is to kill off the inadequate or misinformed theory and not carry them over, say into the trial phase of your case.

So in an investigation it might be okay to proceed on certain things that might -- that one might call assumptions, but if you do not establish something it should not make it into the final analysis of your case.

Q. In your theory, you have to establish it through the forensics and through learned reconstructionist's view of the meaning of the forensics.

A. Yes, that would be part of it.

Q. What's the other part?

A. The other part, obviously, in some cases you have information from a suspect or information from a witness. However, it is absolutely crucial that one corroborate witness testimony or witness statements or offender testimony or offender statements with the physical evidence.

And you have to take a crime and break it down frame by frame by frame and ask yourself at what point does the logic break down in terms of offender statement or witness statement and what physical evidence is there to refute it? If you're not doing that, you've put the foundation of your analysis on very incredulous ground.

Q. Do you have an opinion on the level of Genna Gamble's risk characteristics?

A. Yes, I do.

Q. When we talk about risk about her risk characteristics we're talking about her risk of being a victim of violent crime. Is that how we would define it?

A. That's how I would define it, yes.

Q. It's the risk of her being a victim of a violent crime from anybody?

A. That's correct.

Q. Now, what is your opinion of Genna Gamble as to her risk of being a victim of a violent crime?

A. It's my opinion Genna Gamble was at high risk of being a victim of a violent crime.

Q. What is the basis of that opinion?

A. The basis for that opinion is parent -- essentially -- may I explain the process?

Q. Yes, please go through it. First tell us the process that you went through in order to come to this opinion that she was a high risk victim -- high risk individual of being the victim of a violent crime.

A. Right. Essentially I've already testified as to the materials that I reviewed. And all those items that were related specifically to Genna Gamble, her personal belongings, her diary, the notes of her M.F.C.C., things of that nature, these things are very important in establishing the context of a crime.

Even according to the guidelines of the National Institute which very well established in 1998, and before that in other works, that essentially you cannot start talking about a case until you've established the victim history.

In fact, my medical examiner instructor from the University of New Haven said the three most important things in any reconstruction is history, history, and history. Because if you don't establish the history of a victim in relationship to their world, you might not have a clear view of the circumstances that led to their demise.

So it's absolutely critical to go through that information and to make these kinds of determinations. And the purpose, from my end, to make that kind of analysis is to assess their risk of being the victim of a violent crime.

And it's not about blame. It's not about saying how much fault did the victim incur. It's not about making a value judgment or moral judgment. It's about assessing an offender would have to penetrate -- excuse me -- how many obstacles a given offender would have to penetrate in order to acquire them. In this case, I tried to make a very thorough review of the material to come up with an opinion on that.

Q. And can you now tell us, (a), what is the basis of your opinion, and (b), when you tell us an issue that is the basis of your opinion, tell us where you got it from.

A. Absolutely. The first thing that one has to take into consideration when determining Genna Gamble's risk is the fact that she was diagnosed as oppositional defiant. She was characterized by her therapist as exhibiting sudden loss of control which included the sudden loss of temper, the deliberate antagonizing of others, refusal of parental instruction, and impulsivity. This I got out of the M.F.C.C.'s reports and notes.

Some of the interviews that were done with her friends, including Marcella Leonard and Shane Robinson, who both were concerned that she was actually going --

MS. FLADAGER: Objection, your Honor. He's trying to get in hearsay.

THE COURT: As to the statement by Shane and Marcella, sustained.

THE WITNESS: Okay.

BY MR. HERMAN:

Q. Basically what -- the materials that you read about Shane and Marcella and the therapist.

A. And also in addition to that, I had my -- the opportunity to speak with Kathy Mouser and she gave me some information that I had not heard or read in any other reports, which is that essentially --

MS. FLADAGER: Objection. Hearsay.

THE COURT: At this point I would sustain that.

THE WITNESS: All right.

BY MR. HERMAN:

Q. Did the information of Kathy Mouser relate to Genna's medication?

A. Yes, it did.

Q. And did that also -- that also add another droplet in your risk analysis?

A. It did. It added to the analysis on this one issue. This issue is also established. It was just a corroborating issue, just corroborated information.

Q. That was about her use of Ritalin?

A. That's correct.

Q. Or her lack of use of Ritalin.

A. That's correct.

The next thing of my analysis -- these are in no specific order. These are just lifted out. The victim was known to have a very low self-image which would make her particularly susceptible to certain types of sex offenders.

She didn't think well of herself. She was always felt --she always felt like she didn't measure up so she was sort of -- would be susceptible to somebody who was experienced in picking out those types of individuals from a crowd and preying on them and making them feel good and isolating them and tagging them.

Q. You said a certain type of sex offender. What did you mean by that?

MS. FLADAGER: Your Honor, I object. He's in here talking about basis of things he's relied upon and now he's trying to talk about various forms of sex offenders.

THE COURT: I'll allow some leeway. You can answer the question.

THE WITNESS: Just, in general, when we talk about sex offenders, certain types of ways that they get close to a victim, and we refer to that as their approach. And sometimes it's a sudden attack, sometimes it may be a surprise where they lay in wait.

And sometimes they use a con where they try to entice the victim in and groom them and remove them to another location and attack them there. And it's the third category that would make Genna Gamble more susceptible.

That information was obviously found, again, in the information provide by the M.F.C.C. -- excuse me -- the marriage and family therapist, Isabel Van Sicklend Her notes, as well as information from her mother, and the interviews that were done with her friend Marcella Leonard and Shane Robinson.

BY MR. HERMAN:

Q. And any other factors?

A. Yes. The next thing that came into play was the fact that the victim spent a lot of time at locations -- in unsupervised locations socializing with age-inappropriate males, including Brian Anderson who --

MS. FLADAGER: Objection.

THE WITNESS: -- is a 290 sex registrant.

THE COURT: What's the objection?

MS. FLADAGER: Well, at this point it's the characterization and the lack of foundation.

THE COURT: Yes, I'm going to allow it at this time. Go ahead.

THE WITNESS: Again, the fact that she had socialized with age-inappropriate males in unsupervised locations, I mean unsupervised by parents, including two individuals, one Brian Anderson who was a 290 registrant --

BY MR. HERMAN:

Q. He was known also as Brian Hair?

A. He was known to Genna as Brian Anderson. His real name was Brian Hair. And Mr. Eric Gonzalez who was convicted of having unlawful sex with a minor.

Q. How old was that minor?

A. The minor was fifteen, I think, at the time. And I got this from the police reports, obviously, Genna's address book, as well as her calendar, as well as letters that she wrote to Brian Hair and letters that she wrote to Eric Gonzalez.

And, in fact, it's my understanding that she received her first kiss the night before she died from Brian Hair.

Q. I think -- are you sure there were letters to Brian Hair?

A. Excuse me. It was Brian -- to a Brian. It was my understanding it was Brian Hair, however.

Q. And you saw letters to Mr. Gonzalez?

A. To Mr. Eric Gonzalez, yes.

Q. Now --

A. I'm not -- there's a couple others.

Q. Yes.

A. Do you want me to go into those first?

Q. Let me just have her diary.

 

(There was a pause in the proceedings.)

Looking at her diary, and a few pages in, "I met Brian and we kissed." Is that what you're referring to?

A. Yes, it is.

Q. She said, "I knew him about 20 minutes."

A. Right. He moved fast.

Q. He moved fast.

And then later in the same entry, "I talked to him after Camelot and again he was being sick and asking me if I was a virgin and I said yes. And he asked me if he could teach me to fuck and I would -- I was like "Hell, no." Yeah, "Hell, no."

A. Yes, that was also part of my analysis.

Q. How does that play into your analysis in relation to the --

 

A. Well, again, she's at -- at a location unsupervised. She's there quite frequently. And it's a location that's known to be frequented by known sex offenders, and she's with --

MS. FLADAGER: Objection. Complete lack of foundation.

THE COURT: I will sustain. The jury is instructed to disregard that statement.

BY MR. HERMAN: Her diary and such indicated that she met Brian at Camelot.

A. Yes.

Q. And had social intercourse with him.

A. Yes. She spoke with him and apparently kissed him.

Q. And, to your knowledge, he was a 290 sex registrant at diary entry was made.

A. To my knowledge, yes.

Q. Now --

A. There are a couple other factors.

Q. Yes. Would you go on.

A. Again, the victim was also thought likely to get into a car with somebody that she knew from Camelot. This was both from her mother or with her friends. She would not get into cars with strangers, but if she felt she knew them from Camelot she'd go with them.

Her brother, Gerren Gamble, was known to be dealing drugs that he stored in their home. Also known to be using drugs at that time.

Q. What does it mean that Gerren had been selling drugs and he was still living at that home? How did that relate to Genna's risk of being a -- at risk of being a victim of violent crime?

A. Well, not unlike the situation at the Funworks where you have her socializing and kissing a sexual offender --

MS. FLADAGER: Objection. Lack of foundation for that statement.

THE COURT: I don't think that --

THE WITNESS: It's Camelot. I apologize.

Not unlike that situation, you have her in the home now with somebody who is storing drugs at their home, who is receiving calls there at the home. They're receiving threats. That sort of thing. It allows her to have the higher potential for contact with a violent element, violent criminals.

And again, all these things, you add them all up altogether and they paint a picture of a very high risk victim. I don't think a rational argument could be made that she's not a high risk victim by somebody who's examined these facts.

BY MR. HERMAN:

Q. Now, you said in your report that there are sexual aspects to the crime.

A. Yes, I did.

Q. What is your opinion about the --

THE COURT: Mr. Herman, maybe since we're in a good transition point here, it's a couple minutes of 12:00, let's knock off just a couple minutes before lunch today.

So why don't we put a bookmark where we are there and take our lunch break at this time. Be back at 1:30 and we'll continue then with the examination then at that time .

Please remember the admonition. Don't discuss the case among yourselves and we'll see everybody back hare at 1:30.

(Proceedings recessed at 11:55 a.m.)

Thursday, November 18, 1999, 1:45 p.m. Afternoon Session

THE COURT: We're ready once again with the jury, alternate, attorneys, and parties. Witness is back on the stand and we're ready to resume examination.

Mr. Herman?

THE CLERK: 8-B's.

(Exhibit 8-B's marked for identification.)

THE CLERK: 8-C's.

(Exhibit 8-C's marked for identification.)

MR. HERMAN: Previously shown what's been marked 8-C's to the prosecution.

BY MR. HERMAN:

This document is marked as 8-C's.

Q. Do you recognize that?

A. Yes, I do.

Q. When did you prepare that?

A. I prepared that at your request yesterday.

Q. And when did you show me that?

A. This morning.

Q. After court or before court?

A. Just before we -- during the lunch break. It was the list that I read off during my testimony this morning.

Q. Okay. So everything that is on that list is inclusive of all the documents that you read and testified to as looking at prior to coming to court as a basis of forming your opinion.

A. Yes. These are the documents that I reviewed to base my opinion on.

Q. And the document 8-C's is the document you prepared?

A. Yes, it is.

Q. And it's accurate to the best of your knowledge?

A. To the best of my knowledge, yes. Though, again, it's not exhaustive, as it says.

Q. Had this marked as 8-B's and shown to the District Attorney. Looking at what is marked as S-B's, do you recognize that document?

A. Yes, I do.

Q. Would you tell us about this document.

A. This document was provided to me, including the personal possessions and writing of Genna Gamble, along with her diary and other written letters that she had written.

Q. You spoke this morning of letters written to Eric Gonzalez and to Shane or Shannon?

MS. FLADAGER: Objection. Misstates the testimony.

THE COURT: In what regard?

MS. FLADAGER: There's been no testimony about any kind of letters being written to Shannon.

THE COURT: I think that's so. I'll sustain that.

BY MR. HERMAN:

Q. Did you ever see any letters written to Shane?

A. Yeah. Actually, I believe I did testify to that this morning. It was probably in a series of other things so it might have gotten --

THE COURT: Okay. Go ahead, then.

MR. HERMAN: Have this marked as next in order.

THE CLERK: 8-D's.

(Exhibit 8-D's marked for identification.)

MR. HERMAN: 8-D's. Showing 8-D's to the prosecution. BY MR. HERMAN:

Q. Now, when you were looking at what has been marked as Defendant's 8-B's --

Would you describe what that is to the jury.

A. This is a letter that appears to be written by Genna Gamble -- excuse me. Not a letter. A note that appears to be written by Genna Gamble with the name "Brian" written four times down the page in a slightly different way each time.

Q. Is 8-B's the document that you're referring to when you said this morning -- you had talked about Genna Gamble in a letter to -- would you explain your reference that you made this morning to Genna Gamble and the letters to Brian.

A. Certainly. What I meant by letters she had written to Brian was, of course, this note that she wrote. And I was lumping that altogether with the diary notation that she made when she discussed the fact that she recently had her first kiss by Brian and that Brian wished to teach her how to fuck.

Q. Looking at 8-D's --

MS. FLADAGER: Your Honor, I would object to 8-D's. There is a lack of foundation as to where that came from and whether it was even ever mailed.

THE COURT: Can I see it, please?

MR. HERMAN: Your Honor, all evidence that we have in this case is from the police.

MS. FLADAGER: It's still not sufficient foundation.

THE COURT: I'm going to go ahead and allow it subject to a motion to strike if it's not identified at the appropriate time.

BY MR. HERMAN:

Q. In doing your analysis you seen what is -- looked at what is 8-D's?

A. Yes, I have.

Q. What is 8-D's?

A. It appears to be a letter written by Genna Gamble to Shane Robinson. And I'll just read the contents of the letter.

MS. FLADAGER: And that I would object to, your Honor. It's hearsay. There's no relevance and there's a lack of foundation.

THE COURT: Mr. Herman?

MR. HERMAN: I can have the letter authenticated at a later time.

THE COURT: That wasn't the objection, the issue.

MR. HERMAN: I believe that the letter to Shane is not hearsay. What it is is basically her thoughts and wishes.

THE COURT: Let me see that.

And the last part of it is definitely not hearsay.

THE WITNESS: She kissed it like she does all her other letters.

MS. FLADAGER: Objection. Move to strike. Lack of foundation.

THE COURT: There's no question pending. That's sustained.

I'll go ahead and allow him to read that.

MR. HERMAN: Slowly and distinctly.

THE WITNESS: This letter is dated 9-25-95 and above the date is the notation "Mood, colon, happy, calm, relaxed." "10:41 p.m.," and that's in a little box on the right-hand top of the letter.

It starts, "Shane, Hey, what's up? Nothing much here. I'm just kicking here at Marcella's house. So how are you doing? I'm doing just fine and dandy. I love to write letters to people. Do you? I hope so because I expect you to write me back very soon.

"I had a question. How come you're it. It's not like we can't mess around. all the way. Parentheses, I will not go so shy about making We don't have to go all the way, unparentheses. If you're worried about the H thing, we're not going to do anything bad enough to get us in trouble.

"Well, I got to go and slip into dream land. Bye, Genna."

Her lips -- she has kissed the paper there, and below it says "I don't wear this ugly color. Don't worry."

And below that it says "P.S. Write back soon."

And below that it says, "P.S.S." and beneath the letters P.S.S. are spelled out the words "Practice safe sex."

BY MR. HERMAN:

Q. We were about to discuss sexual aspects of the murder of Genna Gamble. Do you have an opinion as to the components that -- taken together, that would lead to an interpretation of sexual motivation in her death?

A. What I would say, you can't rule out the motivation, sexual motivation in this crime. And I would go on to say I have no evidence of any other motivation. And I think the best way to do that is go through the point that I made and sort of explain what I mean instead of just leaving it out there.

Essentially, first of all, the location of the body is across the water from a location that is said to be where people commonly come and park and have sex and make out.

And that's from an interview of Robert Taylor, the property owner. And that's the area across the water from the location where her body was found near the grove. That interview was done by defense investigator Mr. Maxwell, I believe.

Also, the location itself is not visible from the main road, and that obviously --

Q. What do you mean by that? Does that mean if you're driving by you wouldn't see her body where it was found?

A. Well, that, too, yes. If you were driving by you wouldn't see the body, of course, but also you can't see the location across the river from the road either.

So that location where the make-out place is sort of secluded. It's not open up so that anybody can just see it. It's very well suited for this type of opportunity and that type of activity is known to go on there.

Q. And --

A. And then --

Q. Well, unless you're standing at the edge of the embankment, is it possible to see the body from where it was found?

A. Oh, yes. If you're standing at the edge of the embankment looking down the embankment, oh, yes.

Q. What if you're standing off the edge and back from of edge of the embankment? Would you see the body?

A. No.

Q. That's from your experience of having been at the crime scene and looking at the crime scene photos?

A. And knowing the location of the body, yes.

Q. And the next item that relates to the sexual aspects of motivation?

A. The next two items are perhaps the most important. First thing is, of course, that the victim was found nude at the crime scene. Essentially, anytime you have nudity at a crime scene you have to explain it. You can't just sort of it go.

It's just not sufficient in this case to say that it was a precautionary act in order to -- to defeat some sort of effort by law enforcement or forensic scientists to reconstruct it. We don't have any -- any evidence of that specifically. So it's -- you have to really work hard to try to figure out what it is, what was the reason why she was left at the crime scene naked.

And in this case I don't think it's been sufficiently established to make a decision that it was a precautionary act by itself. It is possible for a offender to engage in a behavior which has more than one motivation to do something that satisfies him sexually and also defeats the investigative efforts.

Like, for example, the offender may take the victim's shirt and throw it over her head. It prevents the victim from seeing them, but also gives them access to breasts.

Again, this hasn't been explained satisfactorily. And given it hasn't been explained, and given that it's not been established as a precautionary act, I don't think it's been explained.

Q. What do you mean by precautionary? Is there anything that you've seen in here that could lead you to relate to her nudity as being a precautionary act by the perpetrator?

A. Partially, but only after the fact. The fact that the clothes were not found anywhere near the scene would suggest that whoever committed the crime took the clothes with him or disposed of them.

And I don't know and I wasn't there and we don't have a video camera at the -- recording what was done to this victim so we simply don't know.

Q. So you could then not rule out sexual motivation because she was found nude.

The fact that her body and her legs were in the position they were in, rather than to use the descriptive words in this courtroom, we have all seen enough her body and how it lay on the ground, does that suggest anything to you of a sexual nature?

A. Not really. Not by itself. It's really irresponsible for any professional to get up and start interpreting a single behavior by itself. So if we're talking about one behavior in isolation, it's irresponsible to relate something to that unless you have other things to corroborate.

I wouldn't be comfortable ascribing meaning to how the body was left without looking at other things, and in this case we have so much that's not been established.

Q. Like what? What else?

A. There has been -- the reconstruction that was done shows essentially that the crime was committed at that scene. And there's a whole other set of questions and analyses that could only have been done at the time of the crime.

For example, a full examination of the car to determine what was in it and what was not. For example, oh, fingerprints on the body, which were not taken. Just a whole list of things that could have been done that would have helped us to establish things.

Q. You were going on and saying that there were other aspects, sexual aspects?

A. Yes.

Q. One of them, of course, was you have a nude body that has no other explanation.

A. Right. Let me get to that last.

Two things. First, let me say the next thing along with this, we also have what appears -- what could have been what is consistent with a mark on her thigh from underwear which apparently has been misinterpreted as some kind of seat belt mark.

MS. FLADAGER: Your Honor, at this point I would object to that because that's a conclusion by this witness which is really up to the jury.

THE COURT: Sustained.

MS. FLADAGER: Move to strike.

THE COURT: It's stricken.

MR. HERMAN: It's been testified --

THE COURT: Mr. Herman, the objection is sustained and the remark is stricken.

THE WITNESS: According to the -- according to Dr. John Thornton's and Dr. Lawrence's report, the mark on her thigh is consistent with a mark that could have been made by her underwear. And this again, as to a sexual aspect, you have underwear down at the crime scene. So then we move on to try --

BY MR. HERMAN:

Q. What about the fact that there has been no marks ascribed around her waist?

A. How do you mean?

Q. The lack of marks around this woman's waist that might have been made from underwear.

A. That would be significant, yes.

Q. That's the other side of the coin?

A. Yes.

Q. Her underwear being down.

A. Yes. And again, that's what leads me to believe that it's associated with some kind of attack that occurred around the time of death. And again, this has been -- this I get from Dr. John Thornton's crime reconstruction, Dr. Lawrence's report and testimony.

Q. Anything else?

A. Yes. It's not just enough to go in and say we have those things that don't make sense without being fully explained. You have to look at the other possibility of motivation. And the two possibilities in motivation in this case would have to be anger or profit.

Q. Those are the normal motivations?

A. Well, if you want to talk sexual motivation, they break down from there into submotivations, but they are of a sexual nature. So without getting too far afield, those are the other ones that you would look to eliminate that would have meaning in terms of making a crime analysis.

Like I said, the first thing, just say that there's a lack of any evidence that this crime was motivated by profit. It doesn't appear that she had anything of value for anybody to steal. And it's not as though she was abducted, randomly taken and subsequently killed. I don't think that possibility has any legitimacy.

Also, there is an absence of any evidence of over-anger or rage in the crime.

Q. What is over-anger? What does it have to do with the sexual aspects of the crime?

A. The fact that there aren't any -- any evidence of over-anger suggests that that possibility can be eliminated, and that again brings us back to what is it? What is the motive of this crime?

Q. What is overkill?

A. Overkill-- if I'm going to be interpreting overkill in a crime scene I have got to have some kind of explosion of rage that's evident in the crime.

We don't have this here. We don't have repeated injuries to the face. We don't have like 90 stab wounds to the back. We don't have force. That's what we call overkill, beyond the force that's necessary to kill the victim.

For example, victim was strangled as the cause of death in this case. Essentially, if you were going to make the argument that that strangulation was out of anger, you would have to show that there was a lot more force involved and a lot more anger involved.

Well, we don't have broken neck bones. He don't have deep bruising. We don't have deep gouging on the neck associated with that injury. We don't have the classic signs of overkill.

Now, I can't eliminate anger and say it didn't happen. What I'm saying, I don't see it. I can't interpret what's not there, and since it's not there, I don't have evidence of it and so I can't see -- see any anger in this crime. If somebody were to ask me is it possible that somebody was angry and committed this crime, yes, it's possible. I don't have any evidence of that.

What I do have evidence of is a number of sexual aspects, which begs the question of what the motivation of this crime was. And I don't have evidence of that, and I don't have evidence of profit so I'm not enthusiastic about the determination of anger or profit.

Where does that leave us? It leaves us with all these unexplained sexual components, but I have no evidence of sexual assault and I have no evidence of rape so I'm not willing to say there's rape or sexual assault in the motivation.

Q. There has been suggested that the marks on her arms may have been defensive wounds. Is it possible that this might have been a sexual assault gone awry? The perpetrator or perpetrators got out of control and killed her before sexual acts actually happened?

MS. FLADAGER: At this point I would object to that question because that's calling for a tremendous amount of speculation. And there's a complete lack of foundation for the response.

THE COURT: Sustain that at this point.

BY MR. HERMAN:

Q. As a hypothesis, you read in Prodan's testimony -- he testified that it was possibly a failed sexual attempt, did you not?

A. Yes, he did.

Q. Can you comment on that as related to your reading of all these materials?

A. The facts do support that interpretation.

Q. What is that?

A. That it is possible that this crime was a sexual assault that went awry and ended in death.

Q. Could the -- the testimony that the marks on her face were blows but were not significantly heavy blows, is there a term for that kind of a blow to the head?

A. I would refer to that as control-oriented force. It's force that's used to get the victim to comply, not to render them unconscious or render them powerless or to kill them or to even express anger, but --

MS. FLADAGER: Objection, your Honor. He's going to motivations and there's no basis for that at all.

MR. HERMAN: He's explaining a definition, your Honor.

THE COURT: I'll allow some leeway. Go ahead.

THE WITNESS: Again, the control-oriented force is done for the purpose of -- for getting the victim to comply, for either being combative or struggling, or they're not complying and following commands that the offender has given. And so they'll give him like a single (nonverbal noise). And that's consistent with what I see.

BY MR. HERMAN:

Q. What you saw of the wounds on Genna's face and head --

A. That's correct.

Q. -- is that consistent with your control-oriented blows.

A. That's correct.

Q. Use of cloth as a ligature. Have you seen that in the course of your study and experience and training?

A. Yes, I have.

Q. Can you tell us about that.

A. What?

Q. Just generally speaking about use of clothing as ligatures.

A. Absolutely. Very often offenders who are acquiring victims of opportunity or who --

MS. FLADAGER: Your Honor, I object to the answer. It's nonresponsive immediately.

THE COURT: Sustained.

BY MR. HERMAN:

Q. Can you tell us about your training and experience -- you have an expertise in the sexual oriented crimes. Is that right?

A. Yes, I do.

Q. Can you explain to us your expertise in sexual oriented crime.

A. I believe my entire history of work has essentially been centered around the examination and investigation of cases involving rape, serial rape, and rape-homicide, and less often just plain old serial homicide and homicide that's non-sexual. And I've been researching sex offender behavior since 1990, I believe.

Q. Can you tell us about these in general terms, the use of victim's clothes as ligatures in sexual oriented crimes.

A. I have seen that, yes. I have seen cases where an offender will use the clothing of the victims as ligatures. Very often it is control-oriented force that is over-applied.

Q. When you say control-oriented force, you mean you have seen cases where they have used the victim's clothes as a ligature to control their opportunities?

A. Right. To free up a hand because didn't they bring their own ligature, they didn't bring the rope. You grab the victim by the collar and all of a sudden you got their compliance.

Q. So that would mean then that the killer might not have actually planned the death of the victim.

A. That is a possibility.

Q. Have you seen this kind of action with females being the victim of the crime?

MS. FLADAGER: Objection. Asked and answered.

THE COURT: I will allow you to answer.

THE WITNESS: I have seen that -- that -- this kind of action with females, yes.

BY MR. HERMAN:

Q. Now, you -- you talk about primary crime scene and secondary crime scene in your report.

A. Yes.

Q. Before we do, could we discuss Eric Gonzalez. You've read reports on Eric Gonzalez, did you not?

A. Yes, I have.

Q. Are you familiar that Eric Gonzalez was convicted of 261.5, unlawful sexual intercourse?

A. Yes, I am.

Q. And that was with a fifteen-year-old.

A. According to my information, yes.

Q. And Brian Hair was convicted of what crime?

A. He was convicted of --

MS. FLADAGER: Ah -- nothing, your Honor. Strike it. Sorry about that.

THE WITNESS: Let's see. He was convicted of a -- he's a 290 sex registrant.

BY MR. HERMAN:

Q. Do you know how old the girl was that was part and parcel of the crime that he's a 290 sex registrant?

A. I believe she was fifteen at the time of the crime, if my recollection is correct.

Q. Now, we were just talking about this last aspect, about the primary and secondary scenes.

A. That's correct.

Q. What do you mean by that?

A. Well, the whole concept of primary and secondary scene is probably one of the most important concepts of crime reconstruction that you have when starting your analysis of the crime scene.

Essentially it is an aspect of crime reconstruction whereby the forensic scientist comes in and tries to determine, based on what evidence is there and what evidence is not, the location that -- at which the most interaction between the victim and offender occurred, and that would be referred to as the primary scene.

And there can be many secondary scenes, which include places like a disposal site or a vehicle that was used to transport the body, that sort of thing.

So the primary scene is the location where the most interaction occurs between the victim and the offender and secondary scenes are those that are ancillary to that behavior.

Q. The secondary scene can actually be within feet of a scene. If a body is carried from the jury box to the witness box, being killed in the jury box, then that would be the primary scene, and if she was dumped where you were sitting or he was dumped where you were sitting, then that would be the secondary scene.

A. That's correct.

Q. So it isn't really -- distance isn't really the issue.

A. Distance isn't so much the great issue. It's transfer evidence in a particular area. It's the issue of -- it's --essentially that's the biggest issue, the transfer evidence and establishing where things happened.

And if you can't establish whether something is a primary scene or secondary scene, that's a big problem. And if you fail to establish whether or not the scene you have at hand is a primary or secondary scene, you may do things at that scene you wouldn't be likely to do, or you may fail to do things to that scene that you absolutely need to do.

Q. Is there anything that you read or have seen at the Gamble residence as being the primary or secondary scene of any type of crime?

A. The information that I have is that there is absolutely no evidence to suggest that any kind of interaction between the victim or offender took place in that home. There is no blood evidence, no fiber evidence. There is no witness that heard or saw things. There's no evidence that that location is related to this crime.

Q. So if you made an assumption that there was a relationship between the home and the crime, what would you say to that?

A. I would say that would not be a legitimate basis for a conclusion.

Q. Assumptions are not a legitimate basis for conclusions.

A. For forensic conclusions, no.

Q. What about criminal analysis conclusions?

A. I would regard criminal analysis as a type of --anything that comes into court is what I'm referring to when I say forensic conclusion or a forensic opinion. Anything that's court-worthy. And if you're going to do something court-worthy, it better not be based on assumptions.

Q. Now, you state in your report that your opinion is that the location where the victim was found was very near to the location where she was attacked and killed. And you would refer to that as the primary scene. What is the basis for that opinion?

A. The basis for that opinion can be found in the work of other experts and in my own observations, which I'm happy to go through.

Q. Yes. In order for you to have an opinion, was it important for you not only to read all the reports, but read all the testimony of John Thornton and any -- and the reports of the criminalists Yoshida and Beasley?

A. Absolutely. I would disregard any analysis that was done without the input of the appropriate criminalists or without a forensic pathologist, if one was involved in the case. I would regard any analysis that was done without that as incomplete.

Q. How many pictures did you look at during the course of your analysis, if you remember?

A. I didn't count them, but it was somewhere in the neighborhood of one and two hundred pictures.

Q. Very large book of pictures.

A. Yes, a very large binder of crime scene and autopsy photos.

Q. And other photos that relate to the crime such as the material inside the car, et cetera?

A. That's correct. As well as photos relating to the victim as she was in her private life as well as the crime scene video.

Q. Then you talked about Dr. Thornton's crime scene reconstruction in this case. What is it about his crime scene reconstruction that relates to your opinion?

A. Well, there are a number of very important points that Dr. Thornton makes. Essentially, the reason that Dr. Thornton's testimony and his analysis is so important to me is because he understands what we call in forensic sciences Locard's (phonetic) exchange principle.

MS. FLADAGER: At this time I object. We're going to be doing what we tried to do before, which is basically repeat another expert's report. The expert has already testified.

THE COURT: I'm going to sustain the objection at this time.

BY MR. HERMAN:

Q. You used Dr. Thornton's material and his testimony in this case as the basis of your opinion. Is that correct?

A. His analysis and his report were absolutely crucial to mine, yes.

Q. What was it in his analysis that was crucial to your opinion?

MS. FLADAGER: Objection, your Honor. Relevance.

THE COURT: I'll allow that question. Go ahead.

THE WITNESS: In general, there were four things in Dr. Thornton's report that were very important to my analysis of this case. And that was the first issue of the nature and circumstances of the victim's purge, the blood purge that's discussed in item number one of his report.

Number two would be approach of the body to its final resting place being in the direction from the water as opposed to coming down the hill. And as discussed in number two, item number two of Dr. Thornton's crime scene reconstruction, and perhaps one of the most important points along with the purge, is the duckweed that was found on the victim's -- in the victims pubic area on her body, as discussed in item number two in Dr. Thornton's reconstruction.

And then, of course, sort of the more obvious thing that anyone can observe is the trail which leads from the water up to the victim's body. And if you observe closely -- this is not mentioned in Dr. Thornton's report but I think anybody observing that photo or the crime scene video can see -- not the crime scene video because the victim's body is not in the crime scene video. But if you look carefully you can see the hair is swept downhill towards the water in that direction.

Then, of course, the final and very important point that any forensic scientist who's making an analysis or engaging in any kind of reconstruction of the crime which you could consider, which relates to Locard's transfer principle, by the lack of any other physical evidence in any other physical location putting the victim in one location or in the other.

So we didn't find any fiber that related back to a particular location. We didn't find any victim's blood that would relate to any other location in this crime. That is very important.

If someone is going to give an opinion as to a crime reconstruction, Locard's exchange principle becomes very, very important.

BY MR. HERMAN:

Q. What is that?

MS. FLADAGER: Objection, your Honor. I would object. We've been through this before.

THE COURT: Under 352 I will sustain it.

BY MR. HERMAN:

Q. So the exchange of fibers is another --evidence of exchange of fibers from Mr. Mouser's Gamble's body is another aspect of your opinion?

MS. FLADAGER: Objection. Asked and answered.

THE COURT: I'll allow that question. Go ahead.

THE WITNESS: If -- if we were going to argue that the victim's body had been transported in his car, I would have expected to have seen some fibers, yes. And Dr. Thornton not find any fibers.

BY MR. HERMAN:

Q. You looked at Mr. Prodan's testimony, did you not?

A. Yes, I did.

Q. He talks about likely contact on Page 52 likely contact of the offender and victim occurred inside the home. Can you comment on his statement?

 

A. Yes. I find this statement very confusing because Mr. Prodan makes this conclusion after stating page after page of the lack of evidence in this case. The reality is that if you don't have evidence, then you don't have any basis for an opinion.

Now, it is true that it's important to document negative findings. By that we mean the absence of evidence. However, I think Henry Lee put it best --

MS. FLADAGER: Your Honor, I'd object to this. This is nonresponsive to the question and it's going way beyond what was called for by the question.

THE COURT: The question was?

MR. HERMAN: Would he comment on --

THE COURT: Pretty general.

MR. HERMAN: -- Mr. Prodan's statement that there was a lack of -- there was likely contact between offender and the victim occurred inside her home.

THE COURT: The objection is overruled. I'll allow it at this point.

THE WITNESS: I think it was said best by Henry Lee when he said: If somebody's going to clean up their crime scene, they're going to leave evidence that they tried to clean it up.

So you can't assume -- there's that word again -- the crime scene or the crime scenes that you want to be associated with the crime were just cleaned up because you didn't find any evidence there. You have to look for evidence of to see if it happened.

So in the absence of evidence that Mr. Prodan detailed, the most logical conclusion should have been happened at those locations. So I find that -- I find no merit or I have no enthusiasm for his opinions.

But also I would add that given the limited amount of material he reviewed, his analysis was also incomplete. So that may explain part of it.

BY MR. HERMAN:

Q. He -- so is it your statement then that the District Attorney did not turn over enough, or the police --

MS. FLADAGER: Your Honor, I object.

MR. HERMAN: -- enough evidence?

THE COURT: That's sustained.

BY MR. HERMAN:

Q. Is it your opinion then that he did not, from your reading of his transcript of what he told you that he looked at -- how many photos did he tell you -- did he tell us that he looked at?

A. According to this transcript he claimed he only looked at fifteen of the photos that related to this case.

Q. That's both the crime scene and the autopsy.

A. Correct.

Q. Would you comment on that.

A. I would regard that as a dangerous flirtation. It's not something that I would do. If you are going to make an analysis for -- of a case and then expect to bring that into court and talk to a jury about it, you really ought to look at as much as you can. The less information you have about the actual crime the less informed your analysis is going to be.

Q. He tells us that he did not have a significant amount of information about Genna's social history. Would you comment on that.

MS. FLADAGER: objection, your Honor. It's calling for this witness' conclusion of a statement that was not made to him and also it's not detailed.

THE COURT: I'm going to sustain that objection. You can rephrase that, if you wish.

BY MR. HERMAN:

Q. Did you read his transcript about what he testified he knew about Genna's social history?

A. Yes, I did.

Q. Can you comment on the information that he told the jury about what he knew of Genna's social history?

MS. FLADAGER: Your Honor, again I would object. It's irrelevant at this time and under 352 --

THE COURT: If you're asking whether or not the expert had sufficient information to make a decision, you can ask questions in that regard.

MR. HERMAN: Yes, sir.

THE COURT: Your questions are get kind of --

MR. HERMAN: Wide.

THE COURT: Yeah, tough to understand.

BY MR. HERMAN:

Q. Looking at it, did he have sufficient information to opine on it?

A. I would regard Mr. Prodan's examination as woefully incomplete even by his own statements. He went on to list all the things that were absolutely necessary to his analysis but then went on to admit that he had not reviewed those things, such as the criminal history of Gerren Gamble, such as relationships of the victim with Shannon Robinson and Eric Gonzalez and Brian Hair. These are absolutely critical points. And to omit them, any examination is incomplete.

And the same thing goes to the crime scene. He did not avail himself to even visiting the crime scene. He has not even been out to the location of the home. I find these to be -- well, I find them to be -- I find his examination to, therefore, be incomplete since these things were not done.

Q. Now, you talked a little before about the victim's brother being involved in drugs being a risk factor in Genna Gamble's life.

A. Yes.

Q. What is it in someone who deals in drugs, whether they're a small dealer or big dealer, a little dealer or a high school student, or anything else along that line, that makes them a risk factor to the family?

A. I think there are two very important things that need to be brought up about that. One is that I don't think it takes a real genius to point out the fact that there is a strong association between drugs and violence. And given that association, and given the fact that nobody would know necessarily how much or how little drugs Mr. Gamble, Gerren Gamble, was storing at his home, if someone were looking to rob him of his drugs and his cash it would place the family at significant risk.

So having those things around, by itself, I would argue that by itself, that fact alone, puts them at a very high risk. Not just Genna, but anyone else living in that home.

Q. And that, in tandem with the other factor, Genna's life-style, inappropriately aged male objects of her -- her concept of boyfriend, and other aspects that you talked about, would then put her into a high risk victim -- high risk category of being a victim of a violent crime?

A. Yes, it would. As I said before, once you start piling these things together, the association with Eric Rodriguez --

MS. FLADAGER: Objection. I would object. This is asked and answered and nonresponsive to the specific question.

THE COURT: It doesn't sound like it was responsive. Sustained.

BY MR. HERMAN:

Q. Factors that lead you to that conclusion?

MS. FLADAGER: Objection, your Honor.

MR. HERMAN: In terms of her boyfriends.

MS. FLADAGER: Asked and answered several times.

THE COURT: I'm not sure if I understand the question.

BY MR. HERMAN:

Q. It's the final question then on that. As you said, your -- your opinion was that she was at high risk, correct?

A. High risk of being the victim of a violent crime.

Q. And you have -- there was sexual aspects -- there are -- there's information to support the interpretation of sexual motivation to her crime?

MS. FLADAGER: Objection. Asked and answered.

THE COURT: I'll allow some leeway. Go ahead.

THE WITNESS: Yes. The facts would support that interpretation and would not support -- well, yes.

BY MR. HERMAN:

Q. And is your opinion that the primary crime scene, i.e., place where she was killed, was at or near the place where she was found?

A. Yes.

MR. HERMAN: Nothing further.