“No, sir.”
When Harriman stepped down, Judge Finney asked if there would be any further witnesses.
“No further witnesses,” said Kolpacoff.
“Defense rests.”
“GOOD morning, ladies and gentlemen,” Assistant D.A. Bob Drossel said to the jurors. “I thank you for your patience and attention during the course of this trial.
“In my closing argument, I want to take a look at the law, particularly on murder, and then fit the facts of this case, the evidence, into the law to show you how defendant Roger Kibbe is guilty of first-degree murder.”
Drossel began a detailed examination of the physical and circumstantial evidence in the Darcie Frackenpohl murder case, instructing jurors that one type of evidence had no greater weight than another.
He reminded the jurors it had been proven through fiber evidence that Frackenpohl had been in Kibbe’s car. He reminded them that the cordage found at the scene had been judged by microscopic examination to be identical in every measurable way to cordage found in Kibbe’s possession.
“Imagine the scale of justice,” he said. “The People have put evidence of guilt on one side of that scale, and it has come down pretty far beyond a reasonable doubt that Roger Kibbe unlawfully, willfully, deliberately, and with premeditation took Darcie Frackenpohl’s life.
“We have the testimony of Faye Springer, who did the comparison work on the trace evidence. The defense’s own criminalist didn’t have any problems with her methodology or procedures. No problems. Her findings? That the two fibers taken off that pink dress”—he pointed to Darcie’s dress, visible atop the exhibits—“were matched to the floor mat of Kibbe’s Hyundai.
“Then we had Skip Palenik. Again, the defense criminalist agreed that he was tops in his field. Skip’s separate findings were actually confirmation of Faye, and then he went a step further with the fibers. He found them to be unique. They had the same fungal spores. And one of the fibers recovered from Darcie’s dress had the red paint from the spill on the rear floor mat. I ask you: How did her dress pick up that fiber if she wasn’t in Roger Kibbe’s car?”
Drossel reviewed the cordage evidence, too.
“It was proven that the cordage from all three locations had been in a similar environment at one time. Springer gave her opinion that the red paint could have gotten on the cordage when someone was spray-painting.”
As for the master parachute rigger’s testimony regarding cordage being marked at the factory when parachute canopies were being cut and sewn, Drossel said, “Does it really matter how those seven pieces of cordage from three locations got contaminated? The fact is that they did. Whether by some manufacturing process or by some overspraying at some other point in time. The fact is it’s still there.”
The prosecutor reminded the jurors of evidence of Kibbe’s black eye around the time of Frackenpohl’s disappearance, and the testimony he’d elicited from one of the pathologists that a black eye can show up minutes to hours after a blow, and last several days to two weeks or more.
“Kibbe gave at least two stories as to how he got that black eye,” Drossel said. “Why? We don’t know. Could the true version be that Darcie Frackenpohl was able to get a blow in? Maybe she was a feisty gal who wasn’t going to be submissive. Maybe she got a blow in with her fist, her elbow, her knee, or her foot. Maybe she wasn’t going to go willingly. The time period is right, and the circumstances are right.”
Drossel looked up from his notes, and moved a step or two closer to the jury.
“What about premeditation? This murder was considered and planned beforehand, based on the evidence. Doesn’t the crime scene say it all?
“Let’s make some reasonable interpretations here. Darcie’s nude body. Obviously, based on the evidence, there is some sexual motive. If you want to discount that evidence, it’s clear that he had hatred toward women. You can see in those exhibits. Darcie was gagged with her own pantyhose. What’s the significance of that gagging, and the control and manipulation he had over her? Was he saying, ‘Don’t scream. Don’t scream. I won’t hurt you, cunt, bitch’? Was he playing with her? Was he taking the garrote, tightening it as he was walking down the road with her? Tightening it just a little more, ‘I won’t hurt you’? Was he playing with her? Did he receive some sexual arousal? Or did he just want to watch her die? Control and manipulation. Time to be with her. Play with her. Watch her. Tightening it all the time. ‘Be good and I won’t hurt you.’ Loosening it if she’s good, tightening it when she struggles. Aren’t these reasonable interpretations?
“We know she died at the scene because there was fecal material on her buttocks, none on her clothing. Jim Streeter told us her clothes must have been taken off before she died, but we don’t really need to know that. We also don’t need to know whether the clothes cutting occurred before death or after. We just need to know that it happened.”
There was more to say, about the trace evidence, about the uncharged crimes that helped to show motive in the Frackenpohl murder, about the items found in the crime kit, about the eyewitnesses, about the defense witnesses, about Kibbe’s automobiles. Drossel said it, then told the jury: “We’ve come full circle from the opening statement through the evidence to closing argument. We started this trial with a bus tour. Traveling those roads of the San Joaquin and Sacramento areas, the Sierra foothills, the Tahoe basin. We did travel that roadway. The worst human behavior possible. The most repugnant behavior possible of a human being. Compelling evidence to show Roger Kibbe did it. Compelling evidence.
“Ladies and gentlemen, based on the totality of the circumstances, there’s one logical conclusion to be drawn and that is the defendant is guilty. Roger Kibbe is guilty of first-degree murder; the willful, intentional, deliberate, premeditated murder of Darcie Frackenpohl.
“The People ask you to return a verdict of guilty of murder in the first degree.”
“IT’S NOT my intent to go through all of the evidence that counsel has just gone through,” said Phil Kohn as he began the defense’s closing argument.
“The prosecutor this afternoon gave one of the finest charges to the jury I have ever seen or heard. It was also probably the most emotional charge to a jury that I have ever seen. We make no contest of the fact that these were terrible crimes. These were brutal crimes. It was murder. It was murder in the first degree.
“But the fact is that this is a circumstantial evidence case. The law says when you are using circumstantial evidence it is necessary for an inference to be proved beyond a reasonable doubt. So if you take those facts from other cases and you use them to try to convict my client of Darcie Frackenpohl’s murder, which is the only issue you are to decide, you must believe each one of these facts beyond a reasonable doubt, to a moral certainty. That doesn’t mean similar, doesn’t mean close, it means certainty.”
Kohn referred to Carmen Anselmi as “probably the saddest part of this trial.” He shook his head. “The pain she is going through must be incredible. We all know that. But the facts are she couldn’t identify my client in a photo lineup or a physical lineup. When she was taken on a tour of storage facilities and was as close to my client as I am to you she didn’t identify him. Then she comes to this courtroom under the pressure she’s under and makes an identification.
“Mr. Driggers is a little different. His testimony changes. When he first talked to police he’d only seen the man for a minute, and only a side view of his face. When he comes to court he’d been in the car for five minutes and gets a full-face view. Why? Because he wants to solve it and put it behind him, too. I’m not going to maintain he’s a liar. I am maintaining everything about his identification grows in his mind as time goes on.
“Roger was a suspect very early on in this case, and they focused on it. That’s important because it explains the identifications, it’s important because it explains the procedures used in the laboratory.
“Mr. Drossel wants us to believe that Faye Springer is a scientist who
just simply looks at a microscope and where the fibers fall, they fall. No bias. No interest. Just a scientist. Until she testified that she cannot do work for the defense, cannot give opinions for the defense, because she works for the California Department of Justice.
“When we look at the fiber evidence, Ms. Springer says it was probably a primary transfer because of the number of fibers she found. In other words, that pink dress had to have been in Mr. Kibbe’s Hyundai. That doesn’t mean that someone else could not have been in that car and picked up those fibers. Kim Quackenbush testified that she and Darcie occasionally wore clothes belonging to each other. Did she wear Darcie’s dress and was she in that car and did she pick up the fibers? It’s entirely possible that Darcie was never in that car. There is no way of saying when that dress was in that car, if it was in fact in that car. If it was not the night she disappeared, then a week before or three weeks before? There is no evidence to that.
“Another problem I have: How many fibers did they have to look at until finally finding something of Mr. Kibbe’s that was consistent? That’s my problem. And the hairs—okay, Mr. Kibbe cannot be eliminated. Does that mean he did it?”
As for the cordage evidence, Kohn said, “The reason the defense brought Mr. Farrell forward was to indicate to you that that cord is commonly sold in military surplus stores and marine supply stores and in many other stores. The prosecution says this is unique evidence because of the red paint. Mr. Farrell explained how red paint can get on there during the cutting and sewing of canopies.”
Kohn was winding down.
“Our burden is not to prove Roger Kibbe is innocent. That’s not the burden placed on the defense. The prosecution has the entire burden. I have highlighted certain areas of evidence which the defense thinks raise a reasonable doubt. You have to search all the evidence, review the law, and I implore you to make a decision based on the law and on the evidence and not on emotion.”
THE JURORS began deliberating at 9:05 A.M. on March 18, 1991. At 11:45 A.M., they took a noon recess.
After their return from lunch, compliments of El Dorado County, jury foreman John Zucconi, an employee of the South Lake Tahoe Long’s Drugs, sent a note to the judge.
When court reconvened at 1:54 P.M., the lawyers and defendant were back at their respective tables.
“The Court has received a note indicating the jury has reached a verdict,” Judge Finney said.
“Yes, we have,” said the foreman.
“Please hand the verdict to the bailiff.”
When the judge received the verdict form, he glanced at it but kept a poker face. “All right. I’ll read the verdict.
“We, the jury, find the Defendant, Roger Reece Kibbe, guilty of the crime of murder in the first degree, in violation of Section 187 of the California Penal Code.”
May 10, 1991
“People versus Kibbe,” said Judge Terrence Finney. “The matter is set for judgment and sentence. Mr. Kohn?”
It had been fifty-three days since the jury’s verdict.
Phil Kohn stood. “Your Honor, I have advised my client not to talk to Probation due to the fact that there are other cases that are out there. Based on that, we have decided to put forth no evidence.”
“Mr. Drossel?” said Finney.
Taking his place before the bench, Bob Drossel said, “There is no question in the People’s mind that the statutory term of twenty-five years to life is appropriate.”
“What other choice is there?” the judge asked.
“There may be a quirk in the law as to probation.”
Indeed, Kohn had submitted on his client’s behalf an application for probation.
“When you consider the factors against probation,” Drossel went on, “certainly there should not be much choice in the judge’s mind. There was a showing of intent to plan and execute this crime. We have the violent conduct portrayed, which certainly shows a danger to society. As expressed in the probation report, the victim’s mother, Judy Frackenpohl, who will not be here today, is clear about what she thinks should happen to the defendant: death. But that’s not an option of this court.”
In retrospect and after all the work that had gone into the case and the swift verdict by the jury, Drossel would very much like to have been seeking the death penalty. He believed in it, and considered Roger Kibbe an especially good candidate for that particular brand of justice.
“Based on these and other factors,” Drossel continued, “the People urge the Court to follow the statutory term of twenty-five years to life.”
Judge Finney cleared his throat.
“Mr. Kibbe, if you will please stand.”
Kibbe rose; at his side, Kohn did, too.
“The defendant’s application for probation is denied. The Court finds the factors against probation outweigh those in favor of probation. The only sentence under the law I can impose is the twenty-five years to life. Therefore, the defendant is sentenced to twenty-five years to life.
“In addition to this sentence, a period of parole pursuant to Penal Code Section 3000 commences upon the defendant’s release from state prison. The period of parole shall not exceed life.”
The judge informed Kibbe of his rights of appeal.
“Do you have any questions about your rights?”
“No,” Kibbe responded.
“Do you understand you have sixty days to appeal?”
“Yes,” Kibbe said.
“All right.”
With that, court was adjourned.
El Dorado County Sheriff’s Deputy Robert Dougherty escorted Kibbe from the courtroom into the secured hallway on their way back to the jail in an adjacent building. The convicted killer would wait there, his home for the past three years, until transported to state prison.
“What’s new, Bob?” Kibbe asked casually.
“I’m probably doing better than you are, Roger.”
“I’m not surprised about the time,” Kibbe said nonchalantly. “I’ve been waiting for this for three years.”
“I bet you’re kinda relieved,” Dougherty said. “Now you can sweep all this under the carpet and just start doing your time. Where do you think they’re going to send you?”
“Kohn thinks Pelican Bay.”
They were now waiting for the service elevator to take them to the ground floor, where they would exit through a back door and walk 100 yards down a fenced path to the jail.
“You’re probably better off going there. You’ll be locked down in your own cell and not have to worry about the general population,” the deputy said about California’s new maximum security prison reserved for the most dangerous of the dangerous.
“Yeah, I’ve had my own cell for the last three years so it’s nothing new. For sure I don’t want to go to the prison where that big guy who testified against me is doing his time. He wants a piece of me.”
Having sat through the entire trial and listened to all the testimony, Dougherty had no doubt that Kibbe was referring to James Driggers.
The elevator arrived and they climbed in for the short ride down from the second floor.
“I’m sure a lot of people want a piece of you, Roger,” Dougherty said as the door closed and the elevator started its descent with a groan. “But why do you think that guy wants you so bad?”
“Because I killed his girlfriend.”
Dougherty looked at his charge curiously. “Roger, you’re finally admitting that you killed someone?”
“Yeah,” Roger Kibbe said, throwing up his arms in exasperation. “I’ve killed a few women. What’s the big deal?”
Dramatis Personae
Kay Maulsby still works in the Homicide Bureau of the Sacramento County Sheriff’s Department. “She’s not only an excellent homicide investigator,” says her mentor, Ray Biondi, “but she’s one of the best interviewers and interrogators I’ve ever seen.” A year after Roger Kibbe’s arrest for murder, Maulsby encountered another serial killer: James David Majors, who murdered ten people in seven m
onths in California and Arizona. The case was solved by Maulsby and her partner, Bob Bell. Majors now resides on California’s Death Row.
Faye Springer continued to review evidence in the I-5 investigation, and in July 1992 made another match of seat fibers to Roger Kibbe’s Datsun 280Z in the death of Karen Quinones, a twenty-five-year-old prostitute who disappeared from downtown Sacramento in November 1986. Her body was found the following month in Napa County, 40 miles away. Cause of death was ligature strangulation; cordage connected to wooden dowels was still in place around her neck, although the cordage was not the same type that helped convict Kibbe. Springer left the California Department of Justice lab in 1996 to work at Sacramento County’s new state-of-the-art crime lab, where she practices her trace evidence specialty and operates the lab’s new $250,000 electron scanning microscope. In the same year that Roger Kibbe was convicted of murder, Springer’s analysis of fibers, paint chips, and hair helped convict Warren James Bland, a fifty-one-year-old career sex offender, in the torture death of a seven-year-old girl. Bland is on Death Row awaiting execution by lethal injection.
Vito Bertocchini tired of the slow pace of detective work and returned to street action in the San Joaquin County Sheriff’s Department Patrol Division. He worked as a canine officer with his German shepherd partner for six years. He is presently assigned to Vice. “I have never forgotten Stephanie or Charmaine,” Bertocchini says of his two I-5 murder cases. He continues to search for new evidence, and hopes one day to see Roger Kibbe stand trial for their murders. Bertocchini is working with state legislators and victims’ rights groups in pushing for a new state law that will allow for the single prosecution of a serial killer for crimes committed in various jurisdictions, thereby streamlining a system that still today works to the benefit of killers like Roger Kibbe. Bertocchini’s partner, Pete Rosenquist, left the sheriff’s department in 1995 for a job in the San Joaquin County District Attorney’s Office as a criminal investigator. “I’m doing the same thing,” says Rosenquist, “without all the politics.” Larry Ferrari, the third San Joaquin detective assigned to the I-5 task force, is also working as a criminal investigator in the D.A.’s office, alongside Rosenquist.
Trace Evidence: The Hunt for the I-5 Serial Killer Page 45