San Diego County Super. Ct. No. SCD 119402. Judge: Frederic L. Link.
The opinion of the court was delivered by: Baxter, J.
A jury convicted defendant Ramon Jay Rogers of the first degree murders of Beatrice Toronczak and Rose Albano and the second degree murder of Ron Stadt. (Pen. Code, § 187, subd. (a).)*fn1 The jury also found true the special circumstance that defendant had been convicted of multiple murders. (§ 190.2, subd. (a)(3).) At the penalty phase of trial, the jury returned a verdict of death. Appeal to this court is automatic. (§ 1239, subd. (b).)
We affirm the judgment of death as modified to reflect that defendant‟s sentence on the second degree murder count is 15 years to life in prison. (See post, part II.C.1.)
Defendant was the resident manager of an apartment complex at 7007 Saranac in San Diego. In 1996, he was arrested and charged with murdering Ron Stadt, Rose Albano, and Beatrice Toronczak. Stadt was once defendant‟s roommate and best friend. He vanished in June 1993, and his body was never found. Albano had been living with defendant and was pregnant with his child at the time of her disappearance in December 1993. On December 29, 1993, her left arm, left leg, and jawbone were found in a trash bag approximately a mile and a half from defendant‟s sister‟s home. Toronczak had a five-year-old son with defendant and had recently moved into his apartment when she disappeared in February 1996. The next month, her severed fingers and parts of her jawbone were discovered in a storage area beneath defendant‟s apartment.
The three victims had been acquainted with each other, and many of the witnesses at trial knew all three.
While in the Navy, Ron Stadt and defendant became best friends. After leaving the Navy, they both lived San Diego. In July 1992, Stadt separated from his wife Debra Stadt. He subsequently moved in with defendant, but did not stay there for long because he felt uncomfortable. In April or May 1993, Stadt discovered defendant was having an affair with Debra. Stadt intended to use evidence of the affair in his child custody dispute with Debra.
On June 24, 1993, Michael Proo was at work with Stadt when he overheard Stadt talking to defendant on the telephone in a heated conversation. After the call, Stadt told Proo he was going to defendant‟s apartment to retrieve some personal items, perhaps jewelry, left there by Debra. Stadt and defendant had not been getting along, and Stadt was worried that defendant‟s offer to return the jewelry was a setup. Stadt asked Proo and Proo‟s wife to go with him, but they declined. Around 6:15 or 6:30 p.m., Stadt left the shop to go to defendant‟s apartment. Although Stadt was scheduled to work the next day, he never returned, not even to collect his paycheck.
On June 24, 1993, at about 6:20 p.m., Debra drove to defendant‟s apartment. She saw Stadt driving his truck in the alley to the apartments on Saranac, with defendant following in his own truck. Defendant saw Debra and told her in a "fairly urgent" tone of voice to leave. Debra complied. Neither she nor any of Stadt‟s friends, family members, or other contacts ever saw Stadt again. After June 24, 1993, Stadt‟s credit card accounts showed no cardholder activity.
The next day, Debra asked defendant why he was with Stadt, since she understood the two were no longer talking to each other. Defendant said Stadt was at the apartments to pick up a ladder. On July 2, 1993, however, defendant told a detective from the Imperial Beach Sheriff‟s Department that Stadt came to his residence about 6:45 p.m. on June 24, 1993, to pick up jewelry Debra had left.
After Stadt disappeared, defendant stated to Debra and other friends at various times that Stadt was killed in a fight, that he drove off into the sunset, that he was missing and would not be bothering Debra anymore, that he left because he did not want to pay child support, and that he was mountain lion food. Debra once indicated to defendant that if he had done anything to Stadt, then Stadt‟s body could be identified by his extensive dental work. Defendant responded that was the only thing he had forgotten, and it was the only mistake he had made.
Debra testified that, after Stadt vanished, defendant was in possession of Stadt‟s key to Debra‟s car and a radar detector that had belonged to Stadt. Stacie Wickett and Gwytha Zelinsky testified that, after Stadt disappeared, defendant had called them using their unlisted telephone numbers. The women had not given these numbers to defendant but had shared them with Stadt, who presumably wrote them in his phone book.
Defendant told Loretta Peer that Rose Albano was pregnant, and that Albano claimed he was the father. He told Ash Darwish that he wanted Albano to get an abortion and move out of his apartment, but she wanted to do neither. Defendant told Kimberly Skolte he did not want to marry Albano, and told Skolte and Darwish he did not want to be responsible for Albano‟s other two children.
Albano‟s parents last saw Albano on December 18, 1993. On December 23, 1993, defendant called the San Diego Police Department to report Albano missing. He said he last saw her on December 12, 1993, at around 1:00 p.m. He also said she was pregnant, she lived with him at 7007 Saranac, apartment 209, and she might be carrying about $6,400 she had withdrawn from her retirement account. On December 24, 1993, defendant again called the police to report Albano missing, but this time he gave a different address for her, and said he last saw her on December 21, 1993, at 7:00 a.m.
Defendant never expressed any concern over Albano‟s disappearance and did not tell his friends, unless they asked, that she was gone. He was evasive when Pamela LeFrere suggested they look for her. Regarding Albano‟s disappearance, defendant told friends and others at various times that she had gone to Los Angeles or to see her sister, that she and Stadt were shopping in Mexico, that she went shopping one night and did not return, and that she might have gone to the Philippines. Around Christmas of 1993, before Albano vanished, defendant had told Loretta Peer that Albano would be leaving his apartment in two weeks because she had lined up a secretarial job.
On December 29, 1993, Albano‟s partial remains were found in a trash bag in a rural, mountainous area about a mile or a mile and a half from defendant‟s sister‟s house. On that same day, defendant informed his sister that Albano‟s mother told him Albano‟s body parts had been found. The San Diego County Sheriff‟s Department, however, did not tell Albano‟s parents that her remains had been identified until January 27, 1994.
Other evidence showed that on December 17, 1993, Albano had withdrawn over $4,600 from her retirement account. After she went missing, defendant had a used engine and new tires installed on his truck, which would have cost approximately $4,000.
Kimberly Skolte testified that around the second week of March 1994, defendant told her that Albano had been found murdered and the police had interrogated him. Defendant gave Skolte $2,400 in cash, his airline ticket to Poland for the end of March (to visit Beatrice Toronczak and their son), his ATM card with his personal identification number (PIN), his mailbox keys, and his passport. The next day, he brought her Toronczak‟s passport. Defendant told Skolte to hold onto his things, because he was concerned he was a suspect and afraid the police would find the plane ticket and think he might have had a motive or be fleeing. On March 18, 1994, he gave her another $600 in cash. Skolte returned the items to defendant after two weeks because she did not want to be responsible for them.
Defendant and Beatrice Toronczak had a young son named Nicholas. For a period of time, Nicholas lived with Toronczak in Poland, and defendant was determined to get him back. Defendant did not care for the way Toronczak was raising Nicholas. In late 1995, defendant traveled to Warsaw and returned with Nicholas on January 3, 1996. Toronczak arrived in San Diego on February 11, 1996, and moved into defendant‟s apartment. Defendant had to move his then live-in girlfriend, Rose McKinney, to another apartment in the complex because Toronczak did not want McKinney around Nicholas.
Toronczak was last seen on or shortly after her birthday on February 18, 1996. Defendant told friends and Toronczak‟s mother different things about her disappearance, e.g., that he did not know where Toronczak was, that Toronczak ran off with a Mexican man to the Mexican border, that she left and probably went to Germany, and that she maybe went to Las Vegas or to Poland. Defendant expressed no concern over her disappearance and did not try to find her. He refused a request by Toronczak‟s mother to file a missing person report and told her not to worry. Meanwhile, Nicholas was living with defendant.
On March 11, 1996, the police went to defendant‟s apartment to investigate a missing person report concerning Toronczak. They entered the three storage rooms underneath defendant‟s apartment and saw evidence of a crime scene. After securing a search warrant, the police seized a number of items from those rooms, including a tote bag containing Toronczak‟s driver‟s license, her luggage containing clothing and personal items, and a yellow bucket containing what proved to be Toronczak‟s 10 severed fingers and parts of her jaw with some teeth attached as well as some loose teeth. Other seized items included female clothing and underwear that were cut apart, bloodstained flex cuffs that were cut, a bloodstained piece of cardboard, a butcher knife with Toronczak‟s blood and hair, a claw hammer with red stains, a blue tarp with red stains and hair, a handsaw stained with blood and biological matter, a bloodstained four-by-four piece of wood, and two pair of branch clippers, one of which had red stains.
Also recovered from the storage room were a pair of yellow Playtex gloves stained with Toronczak‟s blood. Defendant‟s fingerprints were found inside the fingertips of latex surgical gloves, which apparently had been used inside the larger bloodstained Playtex gloves. Only defendant had the keys to the storage room.
Evidence seized from defendant‟s apartment included four firearms and unused latex surgical gloves, yellow Playtex gloves, and flex cuffs. Also recovered were portions of a calendar for June 1993, with the dates 1, 9, and 24 cut out, and for December 1993, with the dates 7, 19, and 26 cut out.
During the initial police entries into the second and third storage rooms, defendant had been placed in a police car. While in the car, he made a cell phone call to Rose McKinney. Although McKinney denied the incident at defendant‟s trial, she had earlier told Russell Wittmann that defendant had called from the back of the police car to tell her that he "did it" for them.
Kelli Snider once told defendant she had killed someone, which was not true but which she said to get defendant‟s attention. Defendant told her he wanted her to shoot and kill a former business associate of his named Dixon Rice. They discussed a price between $10,000 and $20,000, and he showed her where Rice lived. Snider backed out of the plan, telling defendant she had never killed before and could not do so. Defendant told her that he had not believed she would go through with it, and that he was just testing her. At the time of trial, Snider was taking medication for depression.
Once during a conversation with defendant, Loretta Peer told him she was having problems with her husband. Defendant said if she ever wanted him taken care of, he knew many bad people who could get rid of people and their body parts would never be found.
The defense disputed the prosecution‟s case, arguing that defendant had no motive to kill any of the victims but others did, and that certain key prosecution witnesses were not credible. The defense pointed out that no physical evidence tied him to the Stadt and Albano cases, and that Rose McKinney not only had a motive to kill Toronczak but also had access to the storage room keys and was the owner of the yellow bucket containing Toronczak‟s partial remains.
The prosecution relied on the circumstances of the underlying murders in advocating for the death penalty.
The prosecution also presented evidence of two uncharged batteries. One incident occurred in 1994, when defendant was in Rose Sullivan‟s apartment to repair something in the bathroom. Sullivan was standing behind defendant when he suddenly turned around to face her. Defendant grabbed her, lifted her top, put his hand on her breast, and started to kiss her. Sullivan pushed defendant away, and he left and never mentioned the incident.
The second incident occurred in March 1995. Defendant had entered Rose McKinney‟s apartment, apparently through a patio door. He was hiding in the bedroom closet when McKinney and Preston Hunter entered the apartment and went to bed, after having just returned from Mexico. From the closet defendant telephoned McKinney three times and whispered things. McKinney could not understand what was being said during the first two calls, but recognized defendant‟s voice the third time when he told her to get that man off her bed. McKinney then went to the living room to see where defendant was. Defendant was very upset as he emerged from the bedroom and approached McKinney. He grabbed her and ripped off her tank top, and the two pushed each other around.
The incident caused McKinney‟s gums to bleed, and she sustained bruising on her arm and near her ankle. Meanwhile, Hunter had left the apartment and called the police. After the police arrived and placed defendant in custody, Hunter found his shoes and basketball shorts cut up in the dishwasher.
The prosecution additionally introduced victim impact testimony from the families of the victims, including Beatrice Toronczak‟s mother, Ron Stadt‟s father, and Rose Albano‟s father.
Members of defendant‟s biological family (Franks) and his adoptive family (Rogers) described the positive relationship between the two families as defendant grew up. The families would visit each other, and defendant never expressed resentment about living with the Rogers family. Defendant was adopted by the Rogers family because of finances, not because of anything he did. Defendant was healthy, happy, had friends and girlfriends, and was fun to be around. He was kind, gentle, respectful, and not aggressive. He was active in sports during high school, helped around the house, and held two or three jobs at one time. Defendant was a good, caring father to Nicholas.
A number of defendant‟s long-time friends from Idaho provided positive testimony about defendant and their experiences with him. Defendant‟s one-time romantic interest, Kelli Snider, testified that defendant was happy and never rude or disrespectful, and that he remained calm even when his girlfriend Rose McKinney would get angry with him.
Defendant presented two mental health experts. Neuropsychologist Kirsten Fleming evaluated defendant and concluded he was a bright individual with a very high-functioning brain. Dr. Fleming saw no evidence of either acquired brain damage or developmental brain damage, but noted defendant had a somewhat low frustration level. Psychiatrist Samuel Benson, Jr., performed a psychiatric evaluation of defendant and concluded he did not fit the profile of a serial killer. Given the absence of abnormal brain functioning, Dr. Benson could not explain defendant‟s conduct as being due to a malfunctioning brain.
Defendant contends the trial court‟s denial of his request for attorney-conducted and sequestered voir dire, combined with the court‟s inadequate voir dire of the prospective jurors regarding their death penalty views and potential racial bias, violated his state and federal constitutional rights to voir dire, a fair trial, due process, and reliable guilt, special circumstance, and penalty determinations.
Defendant‟s case was tried in 1997. At that time, Code of Civil Procedure section 223 provided: "In a criminal case, the court shall conduct the examination of prospective jurors." This statute gave the court discretion, "upon a showing of good cause, to supplement the examination by such further inquiry as it deems proper, or shall itself submit to the prospective jurors upon such a showing, such additional questions by the parties as it deems proper . . . ." (Code Civ. Proc., former § 223, as added by initiative (Prop. 115), approved by voters at Prim. Elec. June 5, 1990.) There is no dispute that this former version of the statute controlled in this case.*fn2
On January 22, 1997, the trial court asked the parties to exchange their proposed jury questionnaires and to reach some agreement on questions prior to a future motions hearing. At a hearing on March 24, 1997, the trial court granted defendant‟s motions for use of a jury questionnaire and for open-ended, nonleading questions, but denied all other motions for individual and/or sequestered voir dire, attorney-conducted voir dire, and small group voir dire, including the prosecution‟s motion for attorney-conducted voir dire. The court expressed satisfaction with the prosecution‟s proposed jury questionnaire, but requested the defense to provide its proposed questionnaire as soon as possible. The record contains no indication that the defense ever did so.*fn3
On June 9, 1997, the trial court began the jury selection process by questioning and excusing prospective jurors on hardship grounds. The court informed the remaining prospective jurors about the murder charges against defendant and the multiple-murder special-circumstance allegation, and of defendant‟s not guilty plea and denial of the allegation. After explaining some of the basic guilt phase instructions, the court emphasized the contingent nature of the penalty phase and the significance of aggravating and mitigating evidence as factors the jury would weigh to decide the appropriate sentence.
After making this presentation, the trial court stated it would be distributing questionnaires asking the prospective jurors about their respective backgrounds and views on the outlined instructions and proceedings. The court explained there were no right or wrong answers, but emphasized the importance of answering the questions completely and signing the questionnaire at the end.
Using the completed questionnaires as a starting point, the trial court asked a number of prospective jurors for more detail regarding their answers on different topics, including their death penalty beliefs. At times the court invited each side to ask questions, and it also probed certain questionnaire responses at the parties‟ prompting.
Defendant claims the trial court‟s voir dire on the death penalty was inadequate because: (1) he was not allowed to voir dire prospective jurors at all, and (2) he was deprived of the opportunity to inquire - either through counsel or the court - about the effect of any of the circumstances of the charged crimes on the prospective jurors‟ bias in favor of a death verdict. He contends that his due process rights were violated and that the trial court‟s inadequate voir dire ...