People v. Frazier

552 P.3d 932

323 Cal.Rptr.3d 741

The PEOPLE, Plaintiff and Respondent,

v.Robert Ward FRAZIER, Defendant and Appellant.

S148863

Supreme Court of California.

August 5, 2024

Contra Costa County Superior Court, 5-041700-6, John C. Minney, Judge

Michael J. Hersek, Mary K. McComb and Galit Lipa, State Public Defenders, Evan Young and Mark R. Feeser, Deputy State Public Defenders, for Defendant and Appellant.

Kamala D. Harris and Rob Bonta, Attorneys General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Ronald S. Matthias and James W. Bilderback II, Assistant Attorneys General, Glenn

R. Pruden, Alice B. Lustre and Victoria Ratnikova, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion of the Court by Guerrero, C. J.

A jury convicted Robert Ward Frazier of the murder (Pen. Code, § 187; count l),¹ forcible rape (§ 261, subd. (a)(2); count 2), and forcible sodomy (§ 286, subd. (c)(2); count 3) of Kathleen Loreck. The jury also found true two felony-murder special-circumstance allegations: murder in the commission of rape (§ 190.2, subd. (a)(17)(C)) and murder in the commission of sodomy (§ 190.2, subd. (a)(17)(D)). At the penalty phase of the trial, the jury returned a verdict of death. The trial court denied defendant’s automatic motion to reduce the death verdict (§ 190.4, subd. (e)) and sentenced him to death.² Defendant’s appeal is automatic. (§ 1239, subd. (b).)

At trial, the People presented evidence that defendant killed Loreck by repeatedly hitting her in the head with an iron bar while she was on a walk. The People also presented evidence that defendant raped and sodomized Loreck. Police discovered Loreck within hours after the attack, while she was still alive. However, she died later that day. Defendant’s DNA was found on both vaginal and rectal swabs taken from Loreck as well as on a bloodied iron bar found at the crime scene.

[1] On appeal, defendant raises claims pertaining to: (1) the trial court’s excusal of a prospective juror for cause due to the prospective juror’s views on the death penalty; (2) the trial court’s denial of defendant’s request for individually sequestered voir dire; (3) the trial court’s giving of a jury instruction on a defendant’s flight from the scene of a crime; (4) the trial court’s denials of defendant’s requests to represent himself during the penalty phase; (5) the trial court’s denials of defendant’s requests to represent himself during the postverdict proceedings; (6) the trial court’s purported violation of defendant’s Sixth Amendment right to choose the objective of his defense; and (7) the legality of the death penalty statute. We affirm the judgment in its entirety.³

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Guilt Phase Evidence

1. The prosecution’s evidence

a. The attack and its immediate aftermath

On May 13, 2003, around 1:00 p.m., Loreck left her workplace in Concord to take her regular lunchtime walk on a nearby trail. As Loreck walked, she spoke on a cell phone with her husband. Less than an hour after the call began, Loreck’s husband heard a "very low sigh" that sounded to him "like breathing out." Thereafter, Loreck’s husband heard a "disturbance" that made him think that Loreck "might have dropped the phone."⁴ After Loreck did not respond to her husband, he grew very worried. Loreck’s husband attempted to call her back but was unable to reach her. A few minutes later, Loreck’s husband called his father — who also worked at Loreck’s workplace — and told him what had happened.

Loreck’s father-in-law unsuccessfully looked for her in the surrounding area. He then returned to their workplace and told a manager about the situation. Loreck’s father-in-law and the manager decided to call the police.

Just after 3:00 p.m. that same day, a police officer received a dispatch concerning Loreck’s disappearance. Within five minutes, the officer began searching for Loreck near her workplace. The officer observed a red stain that appeared to be blood near a portion of the paved trail where Loreck had been walking. The officer followed what appeared to be drag marks in nearby vegetation down a dirt path off the paved trail, through a cut in a fence, until he reached an area near a tree. Once there, the officer saw Loreck lying near the bottom of the path about 12 feet from the tree.

The officer observed that Loreck’s clothing had been removed from her navel to her calves and that her face was completely covered in blood. Loreck’s breathing was labored, and her pulse was rapid. Blood pooled beneath her head, and she bled from both ears. She had a very large gash on her scalp and many other wounds. Nearby, the officer observed a two-foot long piece of iron that appeared to have blood on it sitting next to a pool of blood.

Loreck died at the hospital at 4:45 p.m. that same day. A forensic pathologist performed an autopsy and determined that she had sustained numerous blunt force injuries to the back of her head and one injury near her right temple. In addition to skull fractures and bleeding on the brain, Loreck suffered swelling of the brain that caused her death.

b. Evidence of defendant’s commission of the offenses

Several witnesses saw defendant near the trail around the time that the crimes occurred. Around 12:30 p.m., one of Loreck’s coworkers was taking a walk and saw defendant close to Loreck’s workplace near the trail on which Loreck would later walk. Defendant appeared disheveled and was acting strangely.

Around 1:00 p.m., on his way back to work, the same coworker saw Loreck on the trail. Loreck was talking on a cell phone and waved to the coworker as she walked by.

The coworker continued on the trail for five to 10 minutes and again saw defendant near the same spot where the coworker had initially seen him. Defendant was holding a jacket across his chest. A few days later, the coworker saw a bloodstain on the paved trail about five to 10 feet from where he had observed defendant holding the jacket.

A second of Loreck’s coworkers went for a lunchtime run on the same trail on the day of the offenses. At the beginning of his run, the runner observed defendant sitting on the side of the trail. On his way back, the runner again noticed defendant. This time, the runner also saw Loreck, who was about 10 yards away from defendant.

A third coworker of Loreck’s also took a lunchtime walk on the trail on the day of the offenses. He saw a man resembling defendant on two occasions near the location on the trail where, in the aftermath of the offenses, the coworker saw a bloodstain.

On the day of the offenses, at around 11:30 a.m., a bicyclist rode on some bike trails near Loreck’s workplace. The bicyclist noticed defendant nearby. On his way back from the bike trails to the paved trail where Loreck later walked, the bicyclist saw defendant again. While the bicyclist was taking a break from his ride, defendant approached him and asked for a cigarette. The bicyclist gave defendant a cigarette and they each smoked a cigarette while chatting. After about 20 minutes, the bicyclist gave defendant another cigarette, which he saw defendant light before the bicyclist left. Police later collected three cigarette butts from the same general area as the crime scene.

A woman with whom defendant had been periodically staying saw defendant between 5:00 p.m. and 6:00 p.m. on the day of the offenses. She noticed that defendant looked very dirty. He also had multiple abrasions and a lot of dried blood on him. A day or two later, the woman’s husband saw some scratch marks on defendant’s face and a bruise and swelling on defendant’s cheek.

A second woman with whom defendant had also been periodically staying recalled that, on the day of the murder, defendant was waiting for her when she got home from work between 5:00 p.m. and 5:30 p.m. According to the woman, defendant looked dirty, as if he had been "sleeping on the trail" — something he had commonly done before moving in with her. He asked the woman if she had heard what happened that day in Concord. After she responded that she had not, defendant explained that a woman had been killed "[o]ver on the trails." On a different day, defendant showed up at this woman’s house while her best friend was there and said he had been pruning trees. He pulled up his shirt and showed the women scratches on his back, arms, and chest.

Defendant stayed at a former coworker’s house one night after the offenses took place. According to the former coworker, while the two were drunk, defendant said that he was the "trailside killer," or the "Concord trail killer." At the time, the former coworker did not know about the case defendant was referring to and he did not take defendant seriously.

The forensic pathologist who performed Loreck’s autopsy also performed a sexual assault exam on her. The pathologist swabbed Loreck’s mouth, vagina, and rectum. Swabs were also taken of Loreck’s nipples, abdomen, pubic hair, right thigh, and left knee.

A forensic serologist examined the samples taken from the sexual assault exam. She observed a small amount of sperm on the rectal, vaginal, and thigh samples. A rectal smear created from a rectal swab contained a low number of sperm with tails. Some of the sperm on a vaginal smear also had tails. The serologist testified that the presence of tails meant that ejaculation had occurred only a few hours before the swabs were collected. A vaginal swab tested positive for a protein that cannot exist for very long in the vagina.

The serologist developed DNA profiles from the rectal, vaginal, and thigh swabs as well as from a one- to two-inch semen stain found on Loreck’s sweater. The serologist also later developed DNA profiles of the cigarette butts police found near the crime scene. The serologist determined that the DNA profiles from the swabs, the sweater, and two of the cigarette butts matched defendant’s DNA profile.⁵

Defendant also was included as a potential source of some of the DNA found on the...