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In re Rogers

Supreme Court of California

July 15, 2019

In re DAVID KEITH ROGERS on Habeas Corpus.

          Superior Court Kern County 33477 Louis P. Etcheverry Judge

          Law Office of Alan W. Sparer, Alan W. Sparer, Law Office of AJ Kutchins, AJ Kutchins, Nerissa Huertas; Chatfield & Reisman, Alex Reisman and Kate Chatfield for Petitioner David Keith Rogers.

          Bill Lockyer, Edmund G. Brown, Jr., Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette, Robert R. Anderson and Gerald A. Engler, Chief Assistant Attorneys General, Mary Jo Graves, Acting Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, John G. McLean, George M. Hendrickson, Ryan B. McCarroll and Henry J. Valle, Deputy Attorneys General, for Respondent the State of California.

          Chief Justice Cantil-Sakauye authored the opinion of the Court, in which Justices Chin, Corrigan, Liu, Cuéllar, Kruger and Groban concurred.


          Cantil-Sakauye, C. J.

         Petitioner David Keith Rogers filed an original habeas corpus petition in this court contending he should be granted relief from his sentence of death. We issued an order to show cause with respect to various claims relating to petitioner's assertion that, at the penalty phase, prosecution witness Tambri Butler falsely identified petitioner as the man who sexually assaulted her. After an evidentiary hearing, our referee found that Butler had testified falsely when she identified petitioner as her assailant. As will appear, we generally accept the referee's findings, and therefore grant petitioner relief on the basis of false evidence by overturning his sentence of death. We therefore need not reach his claims of newly discovered evidence and ineffective assistance of counsel, the two other topics concerning which the referee made findings supportive of petitioner's claims.

         I. Procedural Background

         In 1988, a jury convicted petitioner of the first degree murder of Tracie Clark and the second degree murder of Janine Benintende (Pen. Code, §§ 187, 189)[1] and found true, among other things, the special circumstance allegation of multiple murder (§ 190.2, subd. (a)(3)). At the penalty phase of the trial, the jury returned a verdict of death for the Clark murder. We unanimously affirmed petitioner's guilt verdict and death sentence. (People v. Rogers (2006) 39 Cal.4th 826 (Rogers).)

         Petitioner filed a habeas corpus petition in 1999. In claims III through VI, he alleged that penalty phase witness Tambri Butler had misidentified him as the man who assaulted and raped her. Petitioner claimed that newly discovered evidence showed that an individual named Michael Ratzlaff was the assailant. Petitioner also included a declaration by Butler in which she expressed varying degrees of doubt about her identification of petitioner as her assailant, saying, in the first paragraph of the declaration, “I now believe my identification of Rogers was wrong” and, in the last paragraph, “I am now more concerned than ever that I wrongly identified David Rogers as the man who attacked me.”

         In 2007, we issued to the Secretary of the Department of Corrections and Rehabilitation an order to show cause why we should not grant petitioner relief on the grounds connected to the alleged misidentification by Tambri Butler, namely:

         (1) newly discovered evidence and use of false evidence, as alleged in claim III;

         (2) the prosecutor's failure to disclose exculpatory evidence, as alleged in claim IV;

         (3) ineffective assistance of counsel, as alleged in subclaims (G), (K), (L), (M), (N), and (O) (to the extent petitioner alleged failure to request CALJIC No. 2.92) of claim V;

         (4) cumulative penalty phase prejudice arising from the facts alleged in the subclaims of claim V identified in paragraph (3) above, as alleged in subclaim (Q) of claim V; and

         (5) cumulative penalty phase prejudice arising from the facts alleged in the claims and subclaims identified in paragraphs (1) through (4) above, as alleged in claim VI.

         After considering the Attorney General's return, filed in 2008, and petitioner's traverse, filed in 2009, we ordered a reference hearing. The order directed our referee to address, as relevant here, the following questions:

         “1. Did Tambri Butler testify falsely (either inadvertently or otherwise) at the penalty phase of petitioner's trial regarding the identity of the person who assaulted her in January or February 1986?

         “2. Did Tambri Butler testify falsely at the penalty phase of petitioner's trial regarding any other matter, including: (1) whether she had seen petitioner on television before she identified him as her attacker; and (2) whether she had been promised leniency for her testimony and/or was aware that she would be released early after she testified?

         “3. Is there newly discovered, credible evidence indicating that petitioner did not assault Tambri Butler in 1986, including evidence that another person committed the assault? If so, what is that evidence?

         “4. What information did law enforcement agencies involved in petitioner's prosecution possess before, during and after petitioner's trial regarding Michael Ratzlaff's attacks on prostitutes other than Tambri Butler? When did law enforcement come into possession of the information? Were the individual law enforcement officers who possessed the information involved in petitioner's prosecution? Was the prosecution in petitioner's case aware, or should it have been aware, of the information? Did the prosecution disclose such information to petitioner's defense counsel?

         “5. What crime was Tambri Butler serving time for at the time she testified at petitioner's trial? Did the prosecution disclose information about Tambri Butler's criminal history to the defense? If so, what information did it disclose?

         “6. Was Tambri Butler promised leniency in exchange for her testimony against petitioner? Did Tambri Butler request early release in exchange for her testimony? Was Tambri Butler aware at the time she testified that she would be released early in exchange for her testimony? Was Tambri Butler threatened by law enforcement agents or given false information about the killing of Tracie Clark before she testified? Was the prosecution aware, or should it have been aware, of any promises or threats made to Tambri Butler or Butler's request or expectation of early release? If so, did it disclose such information to the defense?”[2]

         In 2009, we appointed the Honorable Louis P. Etcheverry, Judge of the Superior Court of Kern County, as our referee. In 2011, Judge Etcheverry conducted an evidentiary hearing, in which 27 witnesses, including Butler, testified. In 2015, the referee filed with us a 24-page report containing his findings. In 2016, petitioner and the Attorney General filed briefing and exceptions to the referee's report.

         II. Trial Evidence

         A detailed summary of the facts is set forth in Rogers, supra, 39 Cal.4th at pages 836 to 846. Briefly, the evidence at trial showed that petitioner, a Kern County sheriff's deputy, murdered 20-year-old Janine Benintende in early 1986 and 15-year-old Tracie Clark on February 8, 1987. Both women had been sex workers on Union Avenue in Bakersfield. Both bodies were found in the Arvin-Edison Canal. Both had been shot multiple times with bullets from a.38-caliber weapon. Bullets recovered from the women's bodies, tire tracks and shoe prints at the scene of the Clark murder, and an eyewitness account connected petitioner to the murders.

         Benintende disappeared the day she arrived in Bakersfield in early 1986. Her badly decomposed body was later found floating in the Arvin-Edison canal. The body had been shot once near the sternum and twice in the back. Two bullets were recovered from the body. Benintende's murder remained unsolved until after petitioner was arrested.

         Clark was seen entering petitioner's pickup truck on Union Avenue during the early morning hours of February 8, 1987, by another sex worker who was familiar with petitioner. After Clark's body was found in the Arvin-Edison canal later that day, the witness identified petitioner's truck and selected his photo from a lineup. Bullets removed from Clark's body matched those recovered from Benintende's body and were the same type as sheriff's department-issued ammunition that was available to all deputies.

         Petitioner was arrested a few days after the Clark murder. After waiving his rights to an attorney and to silence, he confessed to the Clark murder, but not the Benintende murder. Regarding the Clark murder, petitioner stated that while driving his pickup truck on Union Avenue early one morning he picked up Clark, agreed to pay her $30 for sex, and drove her out to the “country.” Clark began performing fellatio on him, but then stopped and demanded more money because the liaison was taking so much of her time. When petitioner refused, an argument ensued; Clark hit, kicked, and yelled at him. He pointed a gun at her, hoping it would stop her from yelling and screaming, but it did not. The gun went off accidentally, wounding Clark. Petitioner began driving back to town but stopped when Clark continued to scream. He pushed her out of the truck. Clark ran around in front of the headlights yelling and screaming. Petitioner got out of the truck and tried to calm her, but when she continued yelling and threatened to report him he shot her a second time. Petitioner realized that if Clark reported him he would be arrested and go to jail. As Clark was leaning against an embankment, petitioner shot her four more times, then dragged her body to the canal and pushed it into the water. When asked about the Benintende murder, petitioner at first denied shooting anyone other than Clark, but then said he could not remember.

         A search of petitioner's home disclosed ammunition of the same type used in the killings and a.38-caliber handgun that was test-fired and determined to have fired the bullets that killed both victims. Petitioner's truck tires and shoes matched photos of tire tracks and shoe prints found at the murder scene.

         A pathologist testified Clark died from multiple gunshot wounds. She had one gunshot entry wound on the right side of the ribcage, the bullet passing through her body and lodging on the left side of her torso; one entry wound to her back; and four wounds to the front of her torso.

         Petitioner testified in his own defense and admitted killing Clark but claimed he did not form the intent required for the charged crimes due to a mental disturbance stemming from the sexual and physical abuse he had suffered as a child.

         Three mental health professionals testified petitioner suffered from a dissociative disorder involving memory loss and a possible multiple personality disorder stemming from severe childhood sexual and physical abuse. A psychiatrist administered sodium amytal to petitioner and videotaped the resulting interview. When under the influence of the sodium amytal, petitioner remembered periods of his childhood that he had previously been unable to recall, as well as parts of the events leading to the Clark murder that he had blacked out.

         Petitioner testified concerning the Clark killing, stating he could independently recall only what occurred up until the time he pushed Clark out of the truck. After that, his recollection was based on his viewing of the videotape of the sodium amytal interview. The first part of his story was consistent with the account he gave police: he testified he picked Clark up on Union Avenue, agreed to pay her $30 for sex, and drove out to the country, where he parked, and Clark began performing oral sex. From that point, the two accounts diverged. Petitioner testified that during the encounter he had trouble having an erection, which caused Clark to taunt him about his sexuality and call him “queer” and “faggot, ” and he pushed her out of the truck. He recalled feeling threatened when she walked toward him pointing her finger, so he pointed his gun at her and shot her once. A few seconds later, he shot her five more times, to protect himself. He then dragged her body to the canal and pushed it into the water.

         Based in part on his account of the killing in the sodium amytal interview, the three mental health professionals testified petitioner killed Clark while in an impulsive, highly emotional state and that he was incapable of premeditating or deliberating.

         In rebuttal, the prosecution presented evidence that in 1983 petitioner had been terminated from his position as a deputy sheriff following a complaint by a sex worker, although he was ultimately reinstated.

         The trial court granted petitioner's motion for partial acquittal on the Benintende count, reduced the charge to second degree murder, and instructed the jury it could reach no greater verdict than second degree murder on that count. As noted, the jury returned verdicts convicting petitioner of the first degree murder of Clark and the second degree murder of Benintende, and found true a multiple-murder special-circumstance allegation.

         At the penalty phase, Ellen M. (also known as Angel or Angela), the sex worker whose complaint had led to petitioner's brief termination in 1983, testified that after interrupting her liaison with a customer, petitioner detained her, told her to undress, and took photographs of her breasts and vaginal area.

         Tambri Butler testified that petitioner assaulted her in February 1986, when she was a heroin addict engaging in sex work in Bakersfield. According to Butler, petitioner made contact with her on Union Avenue in a white pickup truck. He declined her request to go to her motel room, instead driving out to a field in the countryside. She agreed to perform “half and half, ” i.e., oral and vaginal intercourse, for $40. She took off her clothes and engaged him in conversation, “nothing important, just talking to the man finding out he wasn't a cop, a police officer, ” by asking “where he is from, if he has got a family, ” so that she would “feel comfortable for [her]self.” After she performed oral sex they began to engage in vaginal sex. Because he had not ejaculated, and the encounter was taking a long time, she told him “he was either going to have to do something or he was going to have to give me some more money.” He told her “no, that is not what was going to happen, ” “we were going to do some more things.” When she “started getting sort of disagreeable, ” he took what she called a “stinger” gun off the dashboard and used it to shock her on the neck, which burned her and left scars. After further vaginal sex he demanded anal intercourse and, when she refused, he took an automatic weapon out of the glove compartment and fired it across the bridge of her nose. Thereafter she acceded to anal sex and again performed oral sex. Subsequently, he demanded she empty her pockets, took her heroin and cash, and made her ask for them back. He then pushed her out of the truck and tried to run her over.

         In mitigation, the videotape of petitioner's sodium amytal interview was played for the jury. One of petitioner's mental health experts reiterated his opinion that petitioner was under “extreme emotional distress” when he shot Clark, that the lifetime of abuse he had suffered made it difficult for him to conform his conduct to the law, and that he was an emotionally impaired person. Relatives and colleagues of petitioner testified regarding his positive qualities.

         III. The Referee's Report And The Evidentiary Hearing

         Question 1. Did Tambri Butler testify falsely (either inadvertently or otherwise) at the penalty phase of petitioner's trial regarding the identity of the person who assaulted her in January or February 1986?

         The referee answered yes, concluding that Butler testified falsely when she identified petitioner as her assailant in the trial. The referee identified two main bases for his conclusion. The first was that in sworn declarations submitted with the habeas corpus petition Butler had “recanted” her identification of petitioner as the man who assaulted her. The second was the fact that, in his view, none of the descriptors given by Butler of her assailant fit petitioner.

         In a declaration dated November 14, 1999, and attached as an exhibit to the habeas corpus petition, Butler expressed doubt about her identification of petitioner. She explained that at the time she testified in petitioner's case, she was engaging in sex work to support her heroin addiction. She stated that the attack in the winter of 1986 occurred exactly as she testified. The attacker had a “thick bushy moustache that grew long over his upper lip.” The man showed her photos of his children - a boy and a girl. He drove a '60s or '70s model white truck that did not have a camper shell. The interior of the truck was cluttered with trash. There was a tool box in the cab. The man's set of many keys was in the ignition.[3]

         Butler further stated that not long after the attack, she was arrested and thought she saw a deputy who looked like her attacker at the Lerdo jail. She knew she had seen him somewhere before. He said he had arrested her in Arvin, but she had never been arrested there.

         Butler described her meeting with Deputy Jeanine Lockhart in late 1986 when she looked through a book of photos of deputies and told Lockhart she had recognized the man's photo. Butler stated that when she was back on the streets in 1986 and 1987, there was talk among the sex workers about attacks by a man in a white pickup truck.

         Butler stated that she was friends with Tracie Clark, one of the sex workers murdered by Rogers. After Clark was killed and petitioner was arrested, Butler again was in Lerdo jail, and she saw his photo on TV in connection with the killing. Right away, she knew that he might have been the man who attacked her. Someone came to see her in jail the next day and showed her a group of six photos. She selected Rogers, whom she had just seen on TV, as the man who attacked her. She was not certain that her mind had not been influenced by having seen Rogers on TV and having heard about the charges against him.

         Butler declared that after her release in April 1987 she did not want to testify against petitioner. She was arrested again and pleaded guilty to possession of heroin for sale in January 1988. Although she was reluctant to testify, some men who she believed were from the district attorney's office came to see her in jail. One of the men told her that petitioner had killed nine women and that Clark had been pregnant and her body mutilated. When she asked if the baby had been cut out, one man said, “Use your imagination.” They convinced her she should testify and put petitioner on death row. However, they did not promise anything in return for her testimony.

         Butler asserted in her declaration that she lied at trial when she testified she had not seen petitioner's photo on television before she identified him in the lineup. She also related that she lied when she said she had not heard other women discussing petitioner's case in jail. She stated, “No one ever asked me to lie, but the men who interviewed me indicated a lot of things it would not be good to say on the stand.” On the day of her release, three months earlier than she expected, she was told petitioner had been convicted and the jailers had been told to “cut [her] loose.” After her release, she was arrested again and then let out on bail. Someone from the district attorney's office made contact with her on Union Avenue, telling her that some police officers might think she had done a “bad thing” by testifying against petitioner, and that she should leave California, or she might wind up dead in a ditch. He said if she left the state, “a file would just drop behind a file cabinet and my name would never be mentioned in California again.” She moved to Oregon, married, and has been clean and sober since 1989. However, she often worried over the years that she might have testified against the wrong man. She viewed photos of Ratzlaff and heard about his attack on another woman, Lavonda I. She concluded by stating: “I was particularly haunted by one of the photographs. Ratzlaff resembles the man in the white truck and I cannot be sure he was not the man who attacked me in 1986. I am now more concerned than ever that I wrongly identified David Rogers as the man who attacked me.” In a second declaration, also dated November 14, 1999, Butler stated that she tried to notice and memorize everything about her attacker, so she could identify him. She stated her attacker did not have a tattoo anywhere on his body.[4]

         At the evidentiary hearing, Butler recanted the doubts expressed in her sworn declaration attached to the habeas corpus petition.[5] She testified that she was positive she had correctly identified petitioner as the man who sexually assaulted her and that it was only because petitioner's investigator had shown up at her house with photographs of Ratzlaff that she had, for a brief period, doubted her identification and signed the declaration. At the evidentiary hearing, Butler was extensively questioned about the discrepancies between her original description of her assailant, given to Kern County District Attorney Investigator Tam Hodgson and other police officers in her February 18, 1987, interview at Lerdo jail, and her testimony at petitioner's trial. She was also extensively questioned about the descriptions of her assailant that she recounted in several conversations she had with Investigator Hodgson during the period between her signing the declaration and testifying at the evidentiary hearing.[6] In these conversations, and in a recently handwritten eight-page overview of her memories of the event that she used to refresh her recollection at the evidentiary hearing, Butler introduced many new details, the most significant of which was that petitioner had also sexually molested her at least three times while she was incarcerated.

         The referee found that Butler was not a credible witness at the evidentiary hearing. He found that Butler changed or “fudged” her testimony in order to minimize or explain away the significant differences between her description of her assailant in her Lerdo jail interview, the details of which she largely reaffirmed in her hearing testimony, and petitioner's appearance in 1987. The referee cited the example of the markings on her assailant's lower back, which Butler had described in her Lerdo jail interview as large black splotches or moles, and which she reaffirmed in her evidentiary hearing testimony, adding that they had “grossed her out.” On cross-examination at the evidentiary hearing, when shown a photograph of petitioner's back from that time, she acknowledged that no such dark splotches were evident. Later, on redirect examination, when shown another photograph of petitioner's back and ...

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