Criminal
Aug. 6, 2002
Judge Will Let Jurors Consider Drunkenness
SAN DIEGO - Jurors in the trial of David A. Westerfield, accused of kidnapping and murdering 7-year-old Danielle van Dam, will be told that they can consider Westerfield's intoxication the night the second-grader vanished from her upstairs bedroom.
Defense attorney Robert E. Boyce argued Friday that evidence of intoxication had been introduced and that Westerfield should be able use the evidence to show he did not intend to kidnap Danielle.
To convict on a kidnapping charge, the jurors must conclude that Westerfield intended to commit the crime, defense and prosecution lawyers agreed during discussion with Superior Court Judge William D. Mudd of how to mold jury instructions to fit the evidence in Westerfield's trial.
But Deputy District Attorney Jeff B. Dusek opposed including the intoxication instruction. The lead prosecutor said that Westerfield's defense throughout the trial had been that he is innocent and that Westerfield should not be allowed to argue now, as the trial approaches its end, that he committed the crime while he was drunk.
Mudd said he would give the instruction as requested by the defense. He earlier called jury instructions a "minefield for judges" because of certain appellate review.
"I almost see that as fatal error if I don't give it," the judge said.
He added that Westerfield told police he was drunk the night of Feb. 1 when he left a Poway bar and that a witness who saw him there also said he was drunk.
Danielle's parents discovered early Feb. 2 that she was missing. Westerfield, who lived two doors away, was absent from his home as police searched door to door for Danielle. When Westerfield returned Feb. 4, he told police a strange tale of wandering in his 35-foot motor home from the ocean to the Imperial County desert and back again. Danielle's blood later was found on his clothing and in the motor home, and her fingerprints were found on a cabinet in the motor home. Westerfield was arrested Feb. 22 and faces the death penalty if convicted.
On Feb. 27, Danielle's nude body was found beside Dehesa Road east of El Cajon.
Boyce argued that jurors should be able to consider lesser degrees of slaying because, while the defense position is that Westerfield is not the killer, an alternate theory is that he was not the kidnapper. If jurors believe he did not kidnap Danielle, then Westerfield would not be eligible for death.
Dusek scoffed at that suggestion.
"The only way this is not a kidnapping is if he came across her at Dehesa Road and killed her there," he said.
He added that such a theory was too bizarre to consider.
Mudd agreed, saying that the evidence showed Danielle was home Feb. 1 and that nobody had permission to take her out of the home. He struck a portion of the jury instruction that spoke of lesser degrees of slaying.
Final changes in jury instructions will be made Monday. The trial is to resume Tuesday, perhaps with a final defense witness. Instructions and closing arguments will follow.
Claude Walbert
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