SAN DIEGO -- Two missing teeth indicate that Danielle van Dam suffocated when the 7-year-old's abductor jammed something into her mouth after she was taken from her Sabre Springs home, a prosecutor said Tuesday.

Deputy District Attorney Jeff Dusek made the comments as he sought to introduce crime scene and autopsy photos to be used in the trial of David Westerfield.

DANIELLE VAN DAM 1994-2002 Watch Danielle Video Montage DISCUSSION Share your feelings, thoughts E-mail: daniellevandam @yahoo.com Send mail to: P.O. Box 501515 San Diego, 92150

The 50-year-old defendant, who lived two doors down from the van Dam family, is charged with murder, kidnapping and misdemeanor possession of child pornography in the death of the second-grader three months ago.

The defendant faces the death penalty if convicted at trial, scheduled to begin May 17.

Superior Court Judge William Mudd told Dusek that he could use all but one of seven photographs of the scene in Dehesa where the victim's mummified body was discovered on Feb. 27.

Prosecutors can also show the jury 11 photos taken during Danielle van Dam's autopsy, Mudd ruled.

"As unpleasant as these are, they are probative and relevant," the judge said.

Dusek argued in his pretrial motion to introduce the photos at trial that the child was found on her back, completely nude, with several teeth missing.

Video

Dozens Of Motions Pending

Two of the missing teeth couldn't be located, lending credence to the theory that the victim was killed at another location after having something stuffed into her mouth, the prosecutor said.

Doctors weren't able to determine the cause of death or if Danielle van Dam was sexually assaulted because her body was badly decomposed, Dusek said.

He said the girl's body was "easy for a grown man to carry."

Damon and Brenda van Dam discovered their daughter missing from her bed the morning of Feb. 2. Westerfield, who came under suspicion that day, was arrested Feb. 22.

Mudd said Wednesday he will take up a defense motion objecting to the introduction of any computer images, cartoons, photographs or videos of allegedly pornographic materials seized from Westerfield's computer files and computer storage devices.

All but two of the images of the alleged pornography introduced at the defendant's preliminary hearing were created in mid-1999, defense attorneys state in court papers.

Prosecutors said the computer evidence seized from Westerfield's home included still images of clothed, partially naked and nude adults and, apparently, children; a series of still and animated images depicting forcible sexual attacks on a young female; and digital movies displaying adults and, apparently, children engaged in sexual activity, including forcible sexual assault.

His attorneys' motion states that the child pornography charge against Westerfield should be tried separately from the murder and kidnapping charges.

Prosecutors contend that while the charges are not in the same class, all three crimes are certainly "connected together in their commission."

"The defendant kidnapped a 7-year-old girl from her own bed, Dusek wrote in his response to the defense motion. "He killed her, then dumped her nude body in an isolated location. The conclusion is inescapable ... she was sexually molested prior to her murder."

Also Wednesday, Mudd will consider in closed session whether to suppress statements made by Westerfield to police that attorneys Steven Feldman and Robert Boyce claim were obtained illegally.

Also in closed session Wednesday, Mudd is expected to rule on a prosecution motion to limit the possible introduction of evidence into the alleged "swinging lifestyles" of Damon and Brenda van Dam.

Mudd refused Tuesday to make a firm decision on whether the jury in the upcoming trial will be sequestered, saying it "adds one more problem to finding a community jury to try this case."

Mudd said he may take up the issue later.

Deputy District Attorney Woody Clarke argued against sequestering, saying it would have a major impact on potential jurors.

Feldman said the effect that the "tsunami of press" in the case has had on potential jurors will be apparent once jury selection begins.

Other motions argued Tuesday ranged from requests by both sides to compel discovery to a prosecution request to have jurors view the defendant's motorhome.

Feldman argued the defense has not received all the notes from police officers working on the case, including a briefing the morning that Westerfield came under investigation, and information about the dogs that searched the neighborhood. Feldman said canines in the search made false hits during the hunt.

Mudd made it clear he will not tolerate either side hiding what it has from the other.

"It does nobody any good for a witness to say 'that's what I told the investigator' and the prosecutor not (to) be aware," Mudd said. The trial will "go faster and be more accurate if you comply" to normal discovery rules, the judge said.

Mudd declined to issue orders regarding discovery, but said he will do so later if necessary.

"The People's obligation is cast in concrete," the judge said. "The defense obligation is cast in Jell-O ... and it wobbles. I'm concerned about the wobbling."

Dusek took offense to defense suggestions that prosecutors haven't been helpful with attempts to gain access to the van Dam home. He said authorities can't force the van Dams to let members of the Westerfield defense team into their residence.

"The (van Dams) don't want that 'evil' in their home again," Dusek said, in reference to the defendant.

Mudd said he would allow the jury to make a visit to Westerfield's motorhome if photographs entered into evidence don't create a clear picture for them.

Feldman argued that the motorhome has been significantly altered since its first inspection by police and had even been repossessed.

Mudd also ruled on a prosecution motion to limit the questioning of Brenda and Damon van Dam about their experiences with alcohol and drugs.

Brenda van Dam testified at Westerfield's preliminary hearing that she took a couple of puffs on a marijuana cigarette while with her girlfriends in her garage before going to Dad's restaurant the night of Feb. 1 and while at Dad's later that night.

Dusek claimed questioning from the defense on the issue during that hearing was to "besmirch their character." But he agreed their drug and alcohol use during the time around Danielle's disappearance was "fair game."

Feldman argued that the prior use of such substances led to the van Dams' ability to "perceive, recollect and remember."

Mudd said that line of questioning would only be allowed if Feldman laid a foundation first.

Mudd also approved a prosecution motion to agree on weather reports for certain key dates in the case and ruled that what was called "hearsay evidence" concerning an incident involving the victim and a gate at her house would be inadmissible without foundation.

Mudd rejected a prosecution motion to limit the scope of the defense's opening statement, but reminded the attorneys to remain within the rules that govern them.