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


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

--DAY 2 of 2--

Before the HONORABLE DONALD E. SHAVER, Judge Presiding Friday, November 19, 1999; Suzanne Lauzon, CSR 6787

CROSS-EXAMINATION (Resumed)

BY MS. FLADAGER:

Q. Mr. Turvey, you told us yesterday that you got your bachelors in psychology in 1994 and your masters in '96; correct?

A. I don't remember testifying to the date of my -- which bachelors are you referring to?

Q. The bachelors in psychology.

A. My bachelors of psychology, '94, yes.

Q. And your masters in '96?

A. That's correct.

Q. In August of '96?

A. That's correct.

Q. Okay. And you started your company called Knowledge Solutions in January of '96; correct?

A. That is also correct.

Q. And your title that you set for yourself at that time was criminal profiler; correct?

n. That's correct.

Q. And your duties were full partner, instructor, course development, and case consultations; correct?

A. That is also correct.

Q. And this company was formed by you, by Mr. Casey, and by Barbara Troyer Turvey; is that correct?

A. That's correct.

Q. And she's your wife, I take it?

A. She is, yes. She's the managing partner.

Q. The purpose of this company was to develop inexpensive online forensic science courses; correct?

A. Yes.

Q. And your curriculum was designed, I think you described it, to augment and -- formal university courses and not to compete with them?

A. That's correct.

Q. And so these courses you offer people are offered through the computer?

A. That is essentially correct.

Q. We talked a little bit and I'm sure you reviewed Mr. Prodan's report and his conclusions?

A. Not his report, but his testimony, yes.

Q. And he did come to the conclusion that Genna Gamble's overall risk for becoming a victim of a violent crime at the hands of a stranger overall was low, but it may have been elevated due to her personal, family and behavioral circumstances.

You did agree with that statement; correct?

A. I disagree with the characterization of Genna Gamble as a low-risk victim of any kind.

Q. And he also indicated that, in his opinion, she was not killed by a total stranger.

DO you agree with that statement or disagree with that statement?

A. I really have no basis for completely disagreeing with that statement, but it's rather meaningless, because what is a stranger versus what is in her environment is really not at issue, since there are so many dangerous characters and nefarious types in her social sphere. I mean, there are so many people in her environment that she contacts on a regular basis that, frankly, to say that it's not a stranger, it's really rather meaningless to me.

Q. So sounds to me like you're saying -- just tell me if you agree with the statement or not -- that Genna Gamble was a victim waiting to happen, in your opinion?

A. I don't know that I care for that characterization. I don't like that language.

Q. Okay. Would you agree that if she was contacted initially within her home on that Saturday morning by the person who ultimately killed her, that that would be a high-risk behavior for the offender?

MR. HERMAN: Objection, Your Honor. There is no evidence that anyone, even in a hypothetical, contacted in her home that killed her.

THE COURT: I'll overrule the objection. You can answer the question.

THE WITNESS: You're making an assumption that I'm just not willing to make, which is that she was approached in her home. But if -- if, if you're asking if, if an offender broke into her home, would she be at a high risk of being a victim of violent crime, yes, she would.

MS. FLADAGER:

Q. NO, that was not the question.

A. Maybe you can rephrase it for me.

Q. Sure. The question was, if the person who ultimately killed her, okay, the initial contact between the two of them, whether it's the first time they met or they knew each other quite well, if the initial contact that day was in her home Saturday morning, that would be high-risk for the offender?

A. Your question is asked so poorly that, really, I can't answer it.

Q. Okay. Would you agree with me that if a total stranger were to approach her in her home on a Saturday morning, that would be a high-risk behavior -- high-risk behavior for the offender? High risk of getting caught?

A. I guess I'm not really getting enough context. Depends on -- it depends on a number of variables. AS we discussed yesterday, to take a single behavior and try to interpret it out of its context is a grave error. So without providing the whole context, like who is home and what neighbors are home, what the time of day is, things like this would influence my opinion, so maybe you could give me a little more -- flesh out the details. I'd be happy to answer the question if you just flesh it out a little bit.

Q. How about this: A residential home on a cul-de sac on a Saturday morning about 11:30 with neighbors outside who pay particular attention to strangers coming into the court.

A. And your question?

Q. If a total stranger were to decide to enter that house to kill Genna Gamble, that would 'be higher risk behavior for that person than to - well, let's just leave it at that. That's kind of high-risk for the offender, is it not?

A. It is, but I would add that there are things --there are offenders that do that. So just because it's high-risk doesn't mean it doesn't happen.

Q. Definitely.

A. So the answer to your question is yes.

Q. Okay. Would you agree that, in doing your analysis of a victim's risk factors, that it's important to consider as much of the victim's background as possible? You agree with that?

A. I would agree with that and have testified as much.

Q. Okay. Did you consider Genna Gamble's home life came -- when you did your analysis? Yes or no?

A. Could you ask that question again, please? I'm not sure I got the whole --

Q. Did you consider Genna Gamble's home life when you did your analysis? Yes or no?

A. Yes, I did. That was a factor in my analysis.

Q. And you told us you considered her diagnosis of oppositional defiant disorder; correct?

A. That is correct.

Q. Tell us what oppositional defiant disorder is.

A. Well, I'm not a clinician, so I don't want to speak in a clinical vein out of turn. I can give you in lay terms as I understand it as a nonexpert in dealing with those kinds of patients. Is that what you'd like?

Q. Well, let me ask you this: Did you look it up in the Diagnostic and Statistical Manual?

A. Oh, yes.

Q. And did you take notes of that?

A. No, I did not. I just printed the page.

Q. Do you have that page with you?

A. You know, I actually might. If you'll bear with me just a moment. I had it with me yesterday.

I'm sorry, I do not have it with me.

Q. All right. Then why don't you go ahead and tell us what you understand it to be.

A. My understanding - and again, this is -- I'm not an expert in clinical psychology, so bear with me -- my understanding is that it essentially is a pattern of behavior over six months of someone who is engaging in --well, of an adolescent who is engaging in behavior that is essentially defiant, such as, oh, talking back to their parents, such as truancy, such as getting into fights.

And there's a fine line between that and what's called conduct disorder or -- and then later on, for adults, antisocial personality disorder.

But it's essentially your average teen-ager, but magnified by basically like 100 times. They talk back, they don't pay attention to curfews, they get into fights, and there's essentially a couple other things that I mentioned in my report, which is essentially that she - sudden loss of temper, many, not just once, but many episodes over a period of time.

And the other thing that was interesting was the deliberate antagonization of others, which, again, Genna would engage in when she refused to take her meds and things like that. And, again, refusal to obey parental instruction, things of that nature, what we would typically refer to as defiance.

Q. Would you agree with this definition: Oppositional defiant disorder is defined as a recurrent pattern of negativistic, defiant, disobedient and hostile behavior toward authority figures and is characterized by a frequent occurrence of at least four of the following behaviors: Losing temper, arguing with adults, actively defying or refusing to comply with requests or rules of adults, deliberately doing things that will annoy other people, blaming others for ones' own mistakes or misbehavior, being touchy or easily annoyed by others, being angry and resentful, or being spiteful and vindictive? Would you agree with that?

A. Yes, I would. Sounds like you're reading right from the DSM. It's like a Chinese menu, essentially, of characteristics.

Q. Would you agree that manifestations of the disorder are almost invariably present in the home setting, but may not be evident at school or in the community?

A. Would I agree with that?

Q. Yes.

MR. HERMAN: Well, I would object as foundation. He is not a clinical psychologist. That is what is printed in the DSM-IV, that's what's printed in the DSM-IV. He has no capacity to opine.

THE WITNESS: Or to disagree.

MR. HERMAN: Or disagree.

THE COURT: As far as the basis for the opinion, I'll allow the question. Whatever it is, it is.

THE WITNESS: Yes, I would agree with that statement, then.

MS. FLADAGER:

Q. Now, you mentioned in your examples of oppositional defiant disorder someone who would be truant. Where did you see that in the DSM-IV?

A. Well, it's not in the DSM-IV. And, again, you've got to remember the DSM-IV, as anyone who has read it knows, it's sort of a Chinese menu. They give you as -- Miss Fladager, is it?

Q. Mr. Turvey, actually I'd object because I think your answer is nonresponsive to my question at this point.

You had no information whatsoever that Genna Gamble ever skipped school or was truant, did you?

A. No, but I didn't put that in my analysis, either. It's not in my report.

Q. Would you agree that, with oppositional defiant disorder, the individual engages in this behavior typically with adults or peers with whom the individual knows well and usually does not regard themself as defiant, but justify their behavior as a response to unreasonable demands or circumstances?

Would you agree with that?

MR. HERMAN: Again, I would object. Whether he agrees or disagrees, he has not the foundation to agree disagree. The only thing he can do is --

THE COURT: Mr. Herman --

MR. HERMAN: -- Is he can use it in his analysis.

THE COURT: Mr. Herman, if you have an objection, make it. Please don't answer the question for the expert. If it's a part of his opinion, it is. If it isn't, it isn't. That's what the question is.

THE WITNESS: Is that what the question is?

THE COURT: Well, at this point the objection is overruled. I'll allow the question.

MR. HERMAN: Your Honor, I don't believe that's what the question was.

THE COURT: The question was do you agree with that or not. And I think this expert is perfectly capable of answering that question. If he doesn't have enough basis to agree with it or not, I'm sure he can tell us that, but we would rather hear it from him.

The objection is overruled.

THE WITNESS: Could you ask the question again, please?

MS. FLADAGER:

Q. Would you agree with the following statement: Someone with ODD, the individual engages in this behavior typically with adults or peers with whom the individual knows well and usually do not regard themselves as defiant, but justify their behavior as a response to unreasonable demands or circumstances.

MR. HERMAN: I would object under foundation and form of the question.

THE COURT: I'm going to overrule it as far as the basis for his opinion. Go ahead.

THE WITNESS: The answer is yes, but I'm struggling --my hesitancy is I'm struggling to think of who else the person would act out against, so --

MS. FLADAGER: Q. You reviewed Isabel VanSicklen's notes; is that correct?

A. Yes, and some of the letters that she prepared.

Q. How many letters did she write?

A. I'm not certain.

Q. Where exactly in her notes does she mention oppositional defiant disorder?

A. Without her notes in front of me, I couldn't point to it.

Q. Do you have any recollection whatsoever?

A. Do I have any recollection whatsoever of her notes?

Q. Of where she mentioned in her notes oppositional defiant disorder?

A. No. Her notes were pretty broad and scattered. I don't remember exactly in her notes.

Q. All right. I'm going to give you something. Just take a look at it, see if that helps refresh your memory?

A. Thank you.

MR. HERMAN: Is it possible that the defense might see the document before it's presented to the witness?

THE COURT: If you would, please.

MR. HERMAN: I don't know if it's a complete record.

THE WITNESS: Thank you. Is there a specific place you'd like me to look or would you like me to read the document or --

MS. FLADAGER:

Q. I'm just going to ask you to flip through there to see if you can remember where it was you saw oppositional defiant disorder?

A. You want me to go through the entire document and find the place where oppositional defiant disorder is mentioned? I have no knowledge if this is the entire record or if these are all the notes I was given. My documents do not present in this fashion. I have a binder that is prepared for me by the defense.

Q. Did you bring it with you?

A. No, I did not.

Q. Did you bring your notes on Isabel VanSicklen?

A. No, I did not.

Q. Okay. Well, let's make this easy.

A. Okay.

Q. Do you remember what you read in the notes at all? Do you remember want they comprised of?

A. I remember generally the topics that were covered, but I'm not going to sit here and pretend to you that I have an encyclopedic memory and I think it would be unwise for anyone to do that.

Q. I'm going to have you take a look at a letter, to whom it may concern, dated August 7th, 1995. Do you recognize that letter?

A. Yes, I do.

Q. Okay. And is that a letter you read when you were going through the notes that Ms. VanSicklen prepared?

A. Yes, I did.

Q. And is that where you got the term oppositional defiance disorder?

A. That is one of the locations. Again, returns to --she talks about oppositional disorder and she talks about the risk of developing full-blown conduct disorder. So, yeah, this is one of the locations that I recall.

Q. You relied on that?

A. I relied on this for part of my analysis, yes. This is part of it. Again, one document in a thousand documents is what we're pointing to.

Q. Now, in terms of what you relied on in coming to your opinions, did you consider the statements by two of Genna's friends, Latoya and Lisa Cooper, that Genna didn't particularly care for her stepfather? Did you rely on that at all?

A. Could you please characterize the word "rely upon"?

Q. Did you even consider those statements?

A. Yes, I did.

Q. Okay. And did you consider the statements that they indicated that Genna referred to her father, or stepfather, excuse me, with foul language?

A. Yes, I did.

Q. You did consider that?

A. Yes, I did.

Q. Did you consider the statement that the defendant -- from Isabel VanSicklen's notes, the defendant was angry and resentful at the idea of having to deal with another rebellious teen-ager?

A. Consider it as to what, my analysis of Genna's victimology? As to her risk?

Q. Yes.

A. Yes, I did.

Q. Did you consider the report that Genna was angry at the defendant for appearing to support her mother in the discipline? Did you consider that?

MR. MERMAN: I would object to that. That misstates the testimony. She was not angry. The testimony of Isabel VanSicklen was she was disappointed.

THE COURT: I don't recall that precise testimony at this point, but you can answer the question as best you can.

THE WITNESS: Yeah, I think, again, in the notes, yes, I do recall that being made, but there are other statements as well, between notes that I relied upon.

For example, the anger of Genna being directed at the mother and that she had a good relationship overall with the father, things of that nature.

So I did consider it in a context. And, remember, as I keep warning, if you take a behavior and isolate it by itself and try to give it a world of meaning by itself, it's a grave mistake.

MS. FLADAGER:

Q. Did you consider the statement that Genna Gamble expressed anger at the stepdad who is now backing mom fully? Did you consider that?

A. I don't recall that the word "anger" was used. I'd have to look at the notes. But I considered the statements that were in the notes, yes.

Q. Did you consider the statement that she seems to feel betrayed by him?

A. Yes, I did.

Q. Okay. I'm just going to have you take a look at something, see if it refreshes your memory as to the word "anger" being used.

A. I don't want to testify to something I don't remember for sure.

Thank you.

Q. Does that refresh your memory?

A. Yes, it does.

Q. Now, you testified that you've done a fair amount of work for free; correct?

A. I've done some work for free, yes.

Q. And you do this -- you call it pro bono work; right?

A. I believe that's the term that is used, yes.

Q. Okay. And haven't you done hundreds of hours of work for free?

A. On one case I did over 500 hours of work for free.

Q. It's important to your credibility and the success of your business, isn't it, that you are allowed to qualify as an expert and testify in court; correct?

A. That is not correct.

Q. Makes no difference to you or your credibility whether you're allowed to testify as an expert?

A. Well, typically in a case involvement that's not always my role. My role can sometimes be as a consultant.

When I work for law enforcement, that's not at all the issue. The issue is essentially -- I think Richard Saferstein put it best to me: The proof is in the pudding, whatever work that you're doing.

It hasn't got anything to do with whether or not the Court thinks you're really qualified to do anything, because the Court isn't really in a position to make those kinds of determinations, and science or expertise is a terrible place to try and prove that in a courtroom.

Q. If a Court does not allow you to testify as to the results of all the work you put into a case, ultimately you're not much help; isn't that correct?

A. That is incorrect.

Q. Okay. Let's talk about the San Bernardino case you mentioned, People versus Miles. You testified there, you told us?

A. Yes, I did.

Q. And when was that?

A. That was January of this year, I believe.

Q. And you testified for the defense?

A. That's correct.

Q. And did you do that for free or were you paid?

A. Oh, I was paid.

Q. San Joaquin case that was tried in Oakland that you talked about, Louis Peoples, you testified for the defense, you told us; correct?

A. That is correct.

Q. And did you testify in the guilt phase or the penalty phase or some other phase of the trial?

A. The guilt phase.

Q. And were you paid for that?

A. Yes, I was.

Q. And this particular case, are you doing this for free or are you getting paid?

A. In this case I am being paid.

Q. Okay. Have you been paid for the last year?

A. I'm sorry, could you ask a more specific question?

Q. Yes. You've been working on this case for a year, you told us; correct?

A. Yes, I have.

Q. And have you been getting payment throughout the year?

A. I have been paid for the work that I have done up until testimony, yes.

Q. The basis for your opinion, one of the bases - you talked about several bases that you used for your opinion that you came to and testified to. The very first day, you mentioned letters, plural, that Genna had supposedly written to Brian Hair; correct? You mentioned that your first day?

A. I mentioned that in a -- I spoke of letters written to Eric Gonzales, Shane Robinson, and to Mr. Hair.

Q. Mr. --

A. And I also clarified that issue for the Court.

Q. Mr. Turvey, take them one at a time, okay?

A. Well, I didn't mention them one at a time. I mentioned them in a series. So in response to your question, I must carefully -- try to be careful to not mistake and say I only mentioned that. I mentioned letters and I mentioned all three of them in a series.

Q. Okay. Mr. Turvey, I'm going to ask you questions about each of them, so we don't need to repeat them. We will do one at a time, okay?

A. All right.

 

Q. You initially said you had reviewed letters, written by Genna Gamble to Brian Hair, and the fact of the matter is you saw absolutely no letters she had written to Brian Hair; correct?

A. What I saw were not normal letters that were sent through the mail. I saw a note she had written his name on and I was concluding, perhaps inappropriately, the diary entries she had made where she was talking about Brian Hair wanting to teach her bow to fuck.

Q. Mr. Turvey?

A. Yes.

Q. You saw no letters written by Genna Gamble to Brian Hair; is that correct?

A. That is correct.

Q. And the note that you say you saw was a scratch piece of paper that had the word "Brian" written on it about four times; is that correct?

A. That is also correct.

Q. And on the flip side of that scratch piece of paper there is the word "Darren" written about four times; is that correct?

A. That is also correct.

Q. Now, that is not a note that someone has written to someone else to convey information, is it?

A. I don't know. I never really thought of it that way. It could be.

Q. It could also be13-year-old girl writing down a name.

A. I guess we will never know.

Q. You said that you reviewed letters, again plural, that Genna had written to Eric Gonzales. In fact, you saw one letter; isn't that correct?

A. That is not correct. I'm sorry, before I answer that, one letter to whom?

Q. To Eric Gonzales. We're doing them one at a time.

A. Okay. My apologies. I'm not trying to be -- one letter to Eric Gonzales, yes.

Q. And your understanding was that that letter was provided by Eric Gonzales to law enforcement when they first came to talk to him?

A. Excuse me. Let me back up a second.

No, you're right. There's just one to Eric Gonzales. I apologize. I'm just trying to get them straight in my head. My mistake.

Q. And it's your understanding that that letter was provided by Eric Gonzales to law enforcement upon their initial contact with him?

A. That I'm not sure of. I do know that it was provided in the discovery material to my client, Mr. Herman, and that he subsequently provided it to me.

Q. And when you were talking to us about Eric Gonzales and you mentioned his unlawful sexual intercourse -- in other words, that's statutory rape; correct?

A. That's an interpretation of that, yes.

Q. That's an interpretation of that?

A. That's the legal interpretation.

MR. HERMAN: These questions are legal conclusions.

THE COURT: What his conviction was?

MR. HERMAN: His conviction -- he stated what his conviction was. Everything else thereafter are legal conclusions about the conviction.

THE COURT: I don't know that we've gotten any further that. At this point the objection is overruled.

THE WITNESS: I would just supplement to say that is the legal conclusion. However, it's important to note that people are often convicted of things --

MS. FLADAGER:

Q. Mr. Turvey

A. -- that are not --

Q. Mr. Turvey --

A. Yes.

Q. If you could just answer the simple question, I'd appreciate it.

A. I'm trying to answer the questions as best as I can without misrepresenting myself to the jury.

Q. Now, my question to you simply is, is it your understanding, yes or no, that unlawful sexual intercourse means, in lay person's terms, statutory rape; yes or no?

A. No.

Q. Okay.

A. Lay person's terms and legal terms are not the same thing.

Q. All right. Now, you testified that Genna Gamble's diary showed that she kissed Brian Hair the night before she died; didn't you testify to that?

A. No, I did not.

Q. You don't recall saying that yesterday?

A. I recall reading - I recall saying that she says in her diary that she kissed Brian Hair. I don't recall that I said --

Q. Excuse me. We will withdraw it. Do you have the diary?

A. The diary does not show anything. It's her record of what happened. So -- perhaps it's a word usage problem that we're having here. The diary is not a video diary. It doesn't show anything.

Q. Upon your review of the diary, the address book, et cetera --

A. Yes.

Q. You saw entries or words written which indicated that Genna referred to Brian Hair as "shithead"; isn't that correct?

A. Yes, in her address book she circled it and wrote "shithead" off to the side with a -- yes.

Q. Okay. And you also said that you were relying on as a fact that Genna Gamble was likely to get into a car with someone that she knew; correct?

A. That is one of the factors in my analysis, yes.

Q. Now, let me just ask you this question: Yes or no, don't most people -- generally speaking, they'll get into a car with someone they know?

MR. HERMAN: Again, I would object. That's speculative. She's talking about most people.

THE COURT: It's overruled.

THE WITNESS: Well, what I testified to yesterday is that she would -- my information was that she would get into a car with somebody that she knew from Camelot. I didn't specify that it had to be somebody that she knew well. And I think there's people that are just merely acquaintances in our lives and people that we know well and have had some kind of consistent contact with.

MS. FLADAGER: Q. Mr. Turvey, here is a question for you: Isn't it true that most people will get into a car with someone that they know? Yes or no?

MR. MERMAN: Again, I --

THE WITNESS: Define "know."

MR. HERMAN: Again, I object that the question is overbroad, Your Honor.

THE COURT: It's overruled.

THE WITNESS: It also depends on what they know about them.

MS. FLADAGER:

Q. Mr. Turvey, in Genna's diary, doesn't it say, "In April of '95 I met Brian. We kissed, my first French kiss." Doesn't it say that in her diary?

A. I believe so. You're reading from it, so -- yes, it does.

Q. And that entry where she talks about meeting him in April of was written on August 12th of 1995; is that correct?

A. I'll have to take your word for that.

Q. Well, let's not do that.

A. Okay.

MR. HERMAN: Why not?

THE WITNESS: I read August 12th, 1995.

MS. FLADAGER:

Q. Okay. And what day was Genna Gamble killed?

A. Excuse me?

Q. What day was Genna Gamble killed?

A. She was killed on Saturday the 14th, I believe.

Q. of what month?

A. October, I believe, is it -- is it not?

Q. And what year?

A. 1995. I'm sorry. 1995.

Q. You talked to us a little bit about the letter that she had written to Shane. Do you remember that?

A. Yes, I did.

Q. Okay. And you have no -- let me ask you this: You received that letter, did you not, along with a whole bunch of other letter notes and letters?

A. That is correct.

Q. And included in that whole bunch of letter notes and letters were letters that Genna received from girlfriends?

A. That's correct.

Q. And included in that bunch of stuff was a whole bunch of little handwritten notes that appeared to be notes passed back and forth in class?

A. Appeared to be, yes.

Q. Between Genna and her girlfriends?

A. Yes.

Q. And on those notes, didn't you frequently see the notation "PSS" when she would finish her notes where she writes "practice safe sex"?

A. I saw -- I remember it being on the Shane Robinson note, yes.

Q. You don't remember seeing that anyplace else?

A. I didn't specifically look for this issue on every other one, but if you have one to look at, I'll be happy -I don't remember that being on any other letter specifically.

Q. Would it surprise you if it were on other and notes?

A. No, I wouldn't surprise me.

Q. So, therefore, if it would seem to suggest to you, if that were the case, that that's just a little quirk that she had when she writes her letter notes, something she thinks is funny?

A. Well, without more information I would be unwilling to speculate on that.

Q. Okay. One of the things you thought was very significant in coming to your conclusions was the location of Mr. Taylor's property, a certain location that was referred to -- I think you described it as a make-out place; correct?

A. Actually, that's not my description. I was referring to Mr. Taylor's description.

Q. Okay. But when you discussed it here in court, that's how you referred to it as; correct?

A. That is how I characterized it, yes.

Q. Okay.

A. Based on that interview.

Q. And that particular location that's the make-out area is across the river from where her body was found; isn't that correct?

A. That is correct.

Q. And you know that once you enter Mr. Taylor's property, the only way to get to where Genna Gamble's body was found is to swim or take a boat across the water; is that correct?

A. That is not correct. You could walk across.

Q. You could walk across the water?

A. Yes. It's not deep is my understanding.

Q. Mr. Taylor -- you didn't read in Mr. Taylor's statement or get any information that the water was chest high?

A. I'm just saying -- you said that's the only way. I'm saying that that's not my information.

Q. Another important factor for you relating to this particular area is the fact this make-out area across the water from where the body was found is not visible from the roadway; isn't that right?

A. From the roadway above where Genna's body was found, yes.

Q. And, additionally, the make-out area that you're describing --

A. Yes.

Q. -- is not visible from the top of the embankment, either, is it?

A. Not to my knowledge, no.

Q. And you've been out there?

A. Yes, I have.

Q. You also thought it was very significant in your analysis that Genna Gamble's body was found nude. You told us that; correct?

A. Yes, I did.

Q. And you told us, as well, the body was found nude at the scene, which is not entirely explained by the possibility that the removal of the victim's clothing may have been part of a precautionary act; correct?

A. That is correct.

Q. And you testified that you can't say the precautionary act - you can't say there was a precautionary act to effect an attempt to do a reconstruction? You testified to that yesterday?

A. That's part of what I testified to. You' re taking some of that out of context.

Q. And you testified that there was, to your mind, no evidence of that; correct?

A. No evidence of what?

Q. Of a precautionary act.

A. That is not correct. What I stated is that the evidence of the removal of the clothing at all, the taking it away from the scene, seems to be a precautionary act.

Q. Okay.

A. But that doesn't describe the totality of the events that led up to that.

Q. All right. So, in fact, you did -- you did say factors in support of the precautionary act are the clothes were not found at the scene; correct?

A. I testified to that, yes.

Q. And you testified the perpetrator took them with him; correct?

A. No. I said if the offender -- if I didn't say, I would like to correct myself now, if the offender took them with him. That would have to be an assumption. See, we don't have the clothes. We don't know who took them from the scene, if they had been, like, strewn along the road. It's been known to happen. People come along and take things or they just didn't get found.

It would have to be an assumption on my part until we actually find the clothes as to what happened to them. So that's why I said it's not really -- we don't know, and you have to accept the limitation of that.

Q. If clothing was removed from the scene, taken away, body is dumped nude, that is suggestive of a precautionary act as a possibility; isn't that correct?

A. Again, we get back to that issue of taking a single behavior out of context.

Q. Mr. Turvey --

A. No --

Q. Mr. Turvey --

A. You can't do that.

Q. If you can't answer --

A. No, the answer is no.

Q. Now, you've testified that, as far as the body being found nude, you had no other explanation that you could really come up with, no other explanations suggested by evidence; correct?

A. Well, that's what we use, yes, evidence.

Q. Okay. How about, as a suggestion, as a possible explanation for why a body would be found nude, that the person was nude or nearly nude at the time of the conflict with the killer. Is that a possible scenario?

A. That is possible.

Q. How about you this: The victim lost her bladder when she was strangled and the killer removed the clothing prior to transporting?

MR. HERMAN: Objection. There is no evidence that the victim lost her bladder at any time during the course of the events that have been described at this trial.

THE COURT: I'll allow the question. Go ahead. You can answer.

THE WITNESS: Again, the answer would have to be yes, but -- wow, what a stretch.

MS. FLADAGER:

Q: All right. How about, as a possible explanation, clothing was removed because, if the victim were found wearing boxer shorts or something else which she wore to bed at night, that it would he apparent to everyone that she never left the house? Isn't that a possible explanation?

A. Not in this case.

Q. Now about this: A body could be found nude because the killer wanted to attempt to delay as much as possible identification of the body and establishing the time of death. Is that a possibility?

A. A possibility in this case?

Q. A possibility, period.

A. A possibility when? In this case? In any case?

Q. How about in any case?

A. Oh, absolutely, in any case. In this case, no.

Q. Now, you talk about another factor being -- you talk about this mark on her upper thigh, and you said if it's an underwear mark, you say that that shows her underwear was pulled down based upon where the mark was; correct?

A. No, what I said is that it supports That possibility. And, again, remember I went through the aspects and said there was no one thing that said there's a sexual motivation here, but there were so many things that supported that possibility and no evidence of other possibilities that's overt, that I'm left with a stronger possibility or suggestion. But I wasn't willing to give the opinion that it had to be sexually motivated, but the possibility it was sexually motivated could not be eliminated.

Q. You also said for that, in support of that opinion, the lack of a panty mark around the waist also supports a suggestion that her underwear was pulled down? You said that yesterday?

A. I was asked that question. I answered that yes.

Q. Now, I'm not trying to be facetious or anything here, but let me ask you this: Have you ever worn a pair of women's underwear?

A. That's a personal question.

Q. You don't have to answer if you don't wish to.

MR. HERMAN: You can't take the Fifth.

THE WITNESS: Will I lose credibility with the jury if the answer is no?

[COURTROOM LAUGHTER]

I have not, though I have seen many women in their underwear.

MR. HERMAN: Tell your wife that.

MS. FLADAGER: Q. Now, let me ask you this: Not having worn women's underwear, are you familiar with the various styles, makes and models?

A. I believe I am.

Q. Okay. Are you familiar with the various manufacturers?

A. I'm familiar with some manufacturers. I'm not familiar with all of them. I know what my wife wears.

[COURTROOM LAUGHTER]

Q. And do you know -- and do you know what happens to the fabric --

A. Which fabric.

Q. -- and the elastic once underwear has been worn and washed for a period of time?

A. Yes, I do. Happens to my underwear, degrades and breaks apart.

Q. Gets loose?

A. Yes.

Q. Now, your expert opinion is that the killing of Genna Gamble was sexually motivated and not motivated by anger; correct?

A. That is not correct.

Q. Okay. You did say that, since you don't see evidence of anger, that suggests to you that anger can be eliminated. Didn't you say that yesterday?

A. No, that is not - also not correct.

Q. So you disagree with that statement?

A. I think I went to great lengths yesterday to try to explain that the possibility -- that the answer -- if somebody were to ask me, "Mr. Turvey, is it possible that the person who did this did so motivated by anger," that's possible.

However, as a forensic scientist who is trying to look at evidence and interpret what they have, I can't interpret what I don't see, what I don't have evidence of, and I don't have evidence of overt anger.

Q. You said yesterday if strangulation is born out of anger, you would need to see more injury; correct?

A. I would -- I would need to see more injury before I would make the call. On my part, I would not be willing to make the call until I saw more injury because I'm aware of many cases involving strangulation that don't have anything to do with rage or that sort of thing. I would not be comfortable making a call of anger unless I saw overt evidence of it.

Q. Therefore, you're saying that the absence of what you would consider evidence of anger means that this strangulation was not motivated by anger?

A. Again, that is not what I said.

Q. Okay. So you're not saying that the absence of anger -- the absence of evidence of anger for your perspective means that there was no anger?

A. That's not what I'm saying.

Q. Okay. And you would not say that?

A. You use a lot of negatives in there. Maybe you could ask that question again. I want wouldn't to agree to something I don't actually agree to. Could you ask that question again?

Q. Sure.

Is it your position or not that the absence of evidence of anger means there was no anger?

A. That is not my position, no. It -- merely that I can't interpret what I don't see.

Q. So you're not telling us that the absence of proof of it is proof of its absence?

A. That -- I would accept that as an axiom.

Q. Now, you've testified that you're not enthusiastic about anger or profit; correct? You said that yesterday?

A. I am not.

Q. But then you went on to say, "But I have no evidence of rape or sexual assault." Do you remember saying that?

A. I have no overt evidence of anger. I have no evidence of rape or sexual assault, either. I have no semen or vaginal tearing or attacking to the sexual regions of the victim's body, that is correct. So no overt evidence.

 

Q. Would you agree that in most cases where -- and we will limit this to most cases that you've read about, okay, have some kind of knowledge about, that when a woman is strangled to death and there's no evidence of sexual assault at all, that sexual assault is not an element of the crime, period, that most of the time the killing is a very personal killing, it's based on an inter-personal relationship?

A. I find that to be -- I find that word "personal" be sort of not a very useful term and I would prefer that you define it. It's a very poorly-designed research term.

Q. Based upon the cases you've read about -- well, let me ask you this and maybe we will come back to that question. Might be easier for you.

A. Well, it's easy for me now, if you can define the term.

Q. You're very interested in sexually-oriented crimes; correct?

A. Professionally, yes.

Q. Okay. And, in fact, you said yesterday that your entire work history deals with the investigation of rapes, rape/homicide, and a few just plain run-of-the-mill homicides; correct?

A. A few of those, yes, my professional forensic work history. I did some work in college to make my way through that's not related to this kind of work, yes.

Q. The vast majority of your work deals with rapes or rape/homicides; correct?

A. That's correct.

Q. And maybe this is an unfair question: If the vast majority of your work just deals with sexual assault cases, have you enough experience to render an opinion for us on homicide cases where the victim -- victim has been strangled but there is no sexual assault as an element? Do you have enough background to render an opinion about those at all?

A. I believe I do, because essentially I get called in on those types of cases, but they don't always bear out. I get called in based on investigative theories about what a crime might be, and once we actually get into the meat of what the case is, it's different.

Then, of course, I've done my own research, as well.

Q. All right. Let me ask this question.

A. Sure.

Q. If you have a case where a victim is strangled and it is not a sexual case, okay, no sexual assault involved, do you agree that most of the time the relationship between the victim and the killer, relationship?

A. Are you asking me to opine --

MR. HERMAN: Yeah, I'm going to say I would object. He's not here as a profiler and profiling is not allowed in this case.

THE WITNESS: That -- I would agree that is a profiling opinion and I was told by the judge that I would not be allowed to give those types of opinions here today.

MS. FLADAGER:

Q. I'm not asking a profiling question.

A. Yes, you have. I'm sure you're probably not aware that you have.

Q. Let me ask you this question: In the cases that you have dealt with, when a female has been strangled and there is no element of sexual assault, okay, to your knowledge, once the killer is determined, isn't it true that in most instances there is a relationship that exists between the killer and the victim? Yes or no?

A. Again, to opine on the nature of the relationship of an offender to his victim is to offer an opinion regarding the offender's characteristics. An offender's characteristics are profiling. I was not allowed to give those opinions.

Q. Mr. Turvey, I'm asking about known cases where there is a known offender determined.

 

A. That is one part of how profiling is done. Sometimes the profile is established by what is from known cases, and that is profiling evidence, ma'am. I don't care how other people have characterized it to you. That's a simple fact. It's -- the likely offender relationship with the victim is a profile.

Q. All right. If we're not trying to guess ahead of time, to determine ahead of time --

A. But, ma'am, that is how it's done. You see, you establish what -

Q. Mr. Turvey --

A. -- what is known and then you work backwards from that. That's how some inductive profiles are done.

Q. Mr. Turvey, I'm not asking you questions about profiling.

A. Yes, you are. I just don't think you're aware that you are.

THE COURT: Mr. Turvey, you need to stop twisting the questions.

THE WITNESS: I apologize.

THE COURT: If there's an objection, I'll make a decision. If there's no objection, you should really answer the question.

MR. HERMAN: Well, I have objected that this line of questioning is a profile line of questioning.

THE COURT: The question as phrased doesn't appear to me to be so, so I'll overrule the objection.

THE WITNESS: Just for the record, for all the people who are going to be reading this transcript and who want to burn me --

THE COURT: Mr. Turvey, wait for a question.

THE WITNESS: I was going to answer the question.

THE COURT: Let's hear it again.

THE WITNESS: Okay.

MS. FLADAGER:

Q. In your experience -- well, how many strangulation murder cases do you have personal knowledge of, you know about the facts of the case? How many?

A. That's got to be a couple hundred.

Q. Okay. And if you take out of those couple hundred, remove any of them that have any sexual aspect to them, how many are left?

A. I have never sat down and compiled the figure and I don't want to make a guess.

Q. Can you estimate?

A. I wouldn't be comfortable doing that.

Q. Okay. Can you tell us if it's four or a hundred?

A. Again, I wouldn't be comfortable doing that.

MR. HERMAN: Asked and answered now, Your Honor.

THE COURT: Thank you.

MS. FLADAGER: I'll withdraw the question at this point.

Q. Mr. Turvey, you talked about ligatures, as well, yesterday. Have you made a study of ligature marks?

A. I did a literature review of ligature mark analysis, yes.

Q. Now, you said you did a literature review. My question was have you done a personal study dealing with ligature marks?

A. No, I have not.

Q. Now, you are not telling us here today that the marks on Genna's neck, in your opinion, indicate --

MR. HERMAN: Objection, Your Honor. He's never given opinion on how, what, where the marks on Genna Gamble's body --

THE COURT: I think that's the question she's asking, so let's hear what his answer is.

MS. FLADAGER:

Q. Mr. Turvey, you are not testifying here today that the marks on Genna Gamble's neck, that the ligature marks on her neck were caused by clothing?

A. I have not given any opinions as to a wound pattern analysis today, as far as I'm aware.

Q. Would you agree that strangulation, just generally speaking, is a very up-front, personal way to kill someone?

A. I don't even know what that means, ma'am. What do you mean by that?

Q. Well --

A. Do you mean that it requires close proximity?

Q. Let me phrase it this way --

A. Okay.

Q. If someone wanted to rob a convenience store and they're going to kill the clerk, in your experience, generally they don't strangle the clerk; correct?

A. Generally not.

Q. Okay. You usually expect to see a gun or a knife; isn't that right?

A. Or a note.

Q. And if I decided that I and the people I work with and I had had enough of my job was going to do something about it, generally speaking, you would expect that I would use a gun; correct?

A. I don't know you very well. I don't know.

[COURTROOM LAUGHTER]

What would you use? Maybe poison.

[COURTROOM LAUGHTER]

Q. I'll have to give it some thought.

A. I've been thinking for the last couple of --

Q. Would you expect that I would run around my office strangling people?

A. Again, I don't know. I don't know what you would do.

Q. Okay. In your experience, for someone who does that --

A. Who does what?

Q. For someone that decides they're going to kill a number of people they work with, generally speaking, they don't run around strangling them; isn't that true?

MR. HERMAN: Objection. It's not relevant, Your Honor. It's way out --

THE COURT: I'll allow it.

THE WITNESS: I wouldn't expect that.

MS. FLADAGER:

Q. If you had a close between two people, you might expect that, to be a killing, to see a gun; correct?

A. Not necessarily, no.

Q. You might expect to see a knife used; correct?

A. Not necessarily. May I answer a little bit further just to give you --so you don't have to run down the list? I can give you a couple of sentences.

Q. I have one other question. Might you expect to see strangulation used?

A. I wouldn't expect anything in terms of what this relationship was. What I would expect, if it was an anger or explosion of rage, would be use of available materials. That's what I would expect. I would expect them to grab something or use something in the environment. That would make sense to me.

MS. FLADAGER: Okay. All right. Thank you. I have no further questions.

THE WITNESS: Thank you.

TEE COURT: Actually, before we -- well, we began late. It's been Close enough to an hour, I think. Before we start redirect, why don't we go ahead and take our morning stretch break here. Let's be back at five till. We will resume with questioning then at that time.

Please keep in mind the admonitions I've given you.

(Recess.)

THE COURT: Okay, we're back in session once again with the jury, the alternate, the attorneys and parties, and the witness is back on the stand.

Mr. Herman?

REDIRECT EXAMINATION

BY MR. HERMAN:

Q. Last thing you talked about was this explosion of rage. If Genna was killed in her home in an explosion of rage, what would you have expected to see on her body?

MS. FLADAGER: Objection. Lack of foundation.

THE COURT: I'll allow it.

THE WITNESS: What I would have looked for, I would have looked for use of available materials in the crime scene. I would have looked for repeated blows, those types of things. Whether it be a gun, a knife, or a ligature, what have you, I would be looking for something that -- in the environment that was used during the crime, because typically these type of crimes that are born of rage are not very well planned out. They are born of an argument or something and I would expect that argument to occur in place, and whatever was in that place would be used as a weapon, potentially.

MR. HERMAN:

Q. Within the framework of an argument, would you have then expected in a home to see disruption of the normal equipment in the home, furniture and so on, so forth?

A. I would have expected that, yes.

Q. You talked yesterday about purge. If she were killed in her home, would you have expected to see some type of evidence of purge in the home?

MS. FLADAGER: Objection, Your Honor. Lack of foundation.

THE COURT: At this point I'm going to sustain that objection, both under -- as foundation and 352.

MR. HERMAN:

Q. Now, if a victim was killed before the sexual act was completed, would you expect to see evidence of some sexual trauma on the victim?

MS. FLADAGER: Objection. Lack of foundation.

MR. HERMAN: It's a question she asked.

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

THE WITNESS: If the victim were killed during a sexual attack prior to the sexual assault, I would not expect to find any evidence of that sexual assault unless the offender were a necrophile.

MR. HERMAN: Q. Meaning?

A. Someone who enjoyed having sexual relations with the dead.

Q. So within the framework of your discussion, Genna could have died during the -- a conflict that was a frustrated sexual crime?

A. I'm sorry, could you ask that again?

Q. Genna's death could have been the result of a frustrated sexual crime, a sexual crime that didn't come to completion?

A. I don't know if I like the word "frustrated," but a come to completion, yes.

Q. That's a distinct possibility?

A. Yes, it is, that's a possibility. I believe I've testified as much.

Q. Have you seen Brian Hair?

MS. FLADAGER: Objection. Relevance.

THE COURT: I'll allow some leeway.

THE WITNESS: Yes, I have.

MR. HERMAN: Q. And where did you see him?

A. I first saw him yesterday, actually, outside the courtroom, and then I saw him again at your office, I believe during the lunch break.

Q. Did somebody point him out and say, "That's Brian Hair," when you first saw him?

A. After I saw him, they pointed him out to me, yes.

Q. Were you surprised when you were told that particular person was Brian Hair?

A. I was actually surprised because Brian Hair --

MS. FLADAGER: I would object as to relevance and lack of foundation and --

THE COURT: I'm not sure where we're going with this without a --

MR. HERMAN: I would ask you to give me a little leeway in this, Your Honor. Brian Hair is both part and parcel of the cross-examination. He has personal knowledge of Brian Hair that I believe that we have a right to put before the jury and his opinions on it.

THE COURT: I'm not sure what the relevance of his appearance would be five years after -- four years after the event.

MR. HERMAN: And I believe that will become apparent, Your Honor.

THE COURT: Go ahead.

THE WITNESS: I was surprised because Brian Hair, at the time of this homicide, I believe he was around 19 years old and now he's approximately 23 years old, around that age. And seeing him outside, I thought he was a teen-ager and he looked between 16 and 17 years old. He was dressed in baggy pants and a shirt and a baseball cap.

MR. HERMAN: Q. Hypothetically, if a sex offender was trying to procure teen-age girls for sex using the con approach that had been described in the court yesterday, how would his manner in which he chose to dress effect his ability to approach young early teen-age girls?

MS. FLADAGER: Your Honor, I would object to this question based on relevance, beyond the scope, lack of foundation, and would appear to be calling for some kind of profiling testimony.

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

MR. HERMAN: Q. Would dressing down to look 16 or 17 years old make it easier for an individual who was over 20 to approach teen age girls?

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

THE COURT: Sustained.

MR. HERMAN:

Q. Is it in your purview, knowledge and experience to testify about the aspects of dress as it relates to criminal behavior?

MS. PLADAGER: Objection, Your Honor.

THE COURT: That has not been the subject of testimony or the expert qualifications. I'm going to sustain the objection.

MR. HERMAN: That's why I'm asking. That was what the question was about.

THE COURT: I'm still going to sustain the objection if you're trying to do that.

MR. HERMAN: Q. You read the transcript of Brian Hair's testimony -- Brian Hair's interview with Detective Bosma that took place on the 27th of October, 1995?

A. Yes, I have.

Q. Did you have any concerns about the testimony?

MS. FLADAGER: Your Honor, I would object to this because he's going to be relating --

THE COURT: That's pretty broad. That's sustained.

MS. FLADAGER: And hearsay information.

MR. HERMAN: I'm not asking -- he can use hearsay information. I'm not asking him to specifically relate to the words.

THE COURT: The objection as to that question is sustained.

MR. HERMAN:

Q. The transcript of Brian Hair's testimony -- interview -

MS. FLADAGER: Your Honor, I'd have to object to any questions along this line. This is beyond the scope.

THE COURT: At this point I'm not sure where we're going. The subjects of the testimony have been victimology, crime scene analysis.

MR. HERMAN:

Q. What you saw of Brian Hair, does fit into the - your testimony of the -- of Genna's high-risk victimology?

MS. FLADAGER: Objection. Vague, lack of foundation.

THE COURT: I'm not sure that's intelligible, either, so I'm going to sustain the objection.

MR. HERMAN:

Q. After seeing Brian Hair, and your discussion of Genna Gamble's relationship with inappropriately-aged men, does Brian Hair's dress conform to that --

FLADAGER: Your Honor, I object --

HERMAN:

Q. - to that aspect --

COURT: Mr. Hair is on the witness list. I'm he's going to be testifying here. If and when he does, the jury can certainly look at his appearance and draw their own common sense conclusions, if there are any to be drawn. But I don't see how all this is related to this witness' testimony. So at this point, the objection is sustained.

MR. HERMAN:

Q. Yesterday Miss Fladager asked you about not writing a report. Do reports cost money?

A. Yes, they do. If you want one from me, they will, yes.

Q. And for you to write a report in this case, what would you have charged the defense?

MS. FLADAGER: Objection. Relevance.

THE COURT: I'll allow it. Go ahead. You can answer.

THE WITNESS: I would charge my base rate of $150 an hour.

MR. HERMAN:

Q. How long would you have to put in to write a full report on this?

A. To do a full report, a full crime analysis would probably take between three and six hours.

Q. Now, you were asked about a proffer which you gave to the District Attorney. Do you know why that proffer was given to the District Attorney?

MS. FLADAGER: Objection. Relevance.

THE COURT: At this point I'm going to sustain the objection.

MR. HERMAN: Yesterday you allowed -- when I objected, said he could qualify that on redirect, Your Honor, and trying to get before the jury the totality of the in cross examination.

Q. The proffer that you gave us was because of what reasons?

A. Well, first of all, because you asked me to have something for the Court, and second of all, it makes it easier for people to know what I'm going to testify about I give them my conclusions and a list of the bases for conclusions.

Q. You charged me for doing that, did you not?

A. An hour.

Q. But it wasn't something that was necessary to do?

A. It was something that you requested me to do, yes.

Q. And do you know why I requested it?

A. I believe you --

MS. FLADAGER: Objection. Relevance, lack of foundation.

THE COURT: Sustained.

MR. HERMAN:

Q. Did you come in any opinion -- information yesterday that startled you about where Brian Hair works?

MS. FLADAGER: Objection. Relevance.

THE COURT: It's sustained.

MR. HERMAN:

Q. Do you know places like Camelot? Are you familiar with them?

A. Yes.

Q. Would Brian Hair working at a Camelot fit your description --

MS. FLADAGER: Objection, Your Honor. Lack of foundation.

MR. HERMAN: Lack --

Q. DO you know where Brian Hair works now?

COURT: Mr. Herman, why don't you wait and ask Mr. Hair those questions? That wasn't gone into on direct. That's no real relevance where he works now as far as his expert opinions. So the objection is sustained.

MR. HERMAN: Okay. Nothing further, Your Honor.

THE COURT: Anything else?

MS. FLADAGER: No questions.