by Kathryn Joanne Dixon

A 16-year-old girl named Sharon Strain accused two men in their twenties of raping her in a car parked off a rural road in Sacramento County on December 2, 1970. Philip Arthur Thompson and Mark Allen Masterson were the two men charged with Ms. Strain’s rape. They were brought to trial in this case in Sacramento, California and found not guilty by a jury of their peers.

The only three individuals who really knew what happened that winter day in 1970 lived the next 27 years with that jury verdict. The young woman who made the allegation died on September 25, 2003. According to her mother, Sharon Strain’s life was forever changed that December day in 1970. Following the trial’s outcome, the young woman went through therapy and temporarily sought refuge in her sister’s home in Montana. She passed away in Arizona at the age of 54 after an illness of four years that family members believe can be traced to the trauma of that long ago event.

The jury’s not guilty verdict resulted in most of the court papers being destroyed. No transcript of the trial was prepared because the verdict was not guilty.

The two men who had been charged, tried and found not guilty continued with their lives. Neither man re-lived the traumatic event of December 3, 1970 until the fall of 2007. Thirty-seven years after that 1970 December day, El Dorado County Sheriff Rick Fitzgerald contacted Mark Allen Masterson and the two men had a talk. It would be the first of several conversations centering on the alleged rape of that young girl.

Mark Allen Masterson would soon become the second “secret”, “protected” witness garnered by Deputy DA Trish Kelliher in the Betty Cloer murder trial. The two men who had been co-defendants in the Strain case would once again face each other. Only this time Masterson would sit in the witness chair and Thompson would sit at the defense table.

At 2:30 p.m., on Wednesday, March 5, 2008, prosecutor Kelliher called Mark Allen Masterson to the stand. When Masterson’s name was announced by the court clerk, Defense Counsel Weiner objected on the basis that Ms. Kelliher had given him the names of two other witnesses and had not supplied the name of Mark Allen Masterson as the next witness she would call. Therefore, he was unprepared to cross-examine him that afternoon. Weiner requested additional time until the following morning. Judge Wagoner stated he would allow Weiner time to prepare for his cross-examination after Masterson’s direct testimony had concluded. However the judge would not tell the defense attorney the date or the time Masterson would be brought back for cross-examination because Masterson had to be protected for unspecified reasons from unnamed people.

Mark Allen Masterson is a thin, Caucasian 56-year old man. He is about 6’2” tall with a gaunt face. He wore glasses and had reddish brown hair. Masterson wore a pale yellow shirt that had three green palm trees embroidered over his right chest. He spoke with an occasional stutter and took long pauses before answering the prosecutor’s questions

Masterson described Philip Arthur Thompson’s parents as his adoptive parents. They helped Masterson grow up since he was in the fourth grade at age 10. Masterson stated that he had met Thompson when Thompson was 19 or 20 years old and he was about 5 years younger. Masterson identified Thompson, seated at the defense table, as the man he knew. He first met Thompson when he was living with his wife in Santa Rosa. He said Thompson was looking for a trailer at the time. Masterson allowed Thompson to use his garage and they became “close friends” but he did not refer to Philip Thompson as a family member or as a “brother”.

Masterson testified that, prior to meeting Thompson, he had suffered severe head injuries in a major traffic accident. This car collision occurred on January 16, 1968 and he was in a coma for ten days. The witness said, “There was no blood going to my brain. I could not speak, think, and had to be taught what “yes” and “no” meant.” Masterson said he recovered 15 or 16 years after his accident. He explained that when he is nervous he stutters. Therefore, he avoids confrontation and lives an “easy life”, but he still has speech problems. He said that he obtained a $60 thousand dollar settlement for his injuries.

Masterson testified that he moved to Sacramento one month after his accident. Thompson was already living there and wanted Masterson to go into business with him selling cars. They set up a joint business called “Masterson Automotive” and sold cars from a lot at 1900 Alhambra Boulevard, Sacramento. Thompson had the idea to start the business and Masterson put money into it. They both worked at the car lot.

In 1971 the alleged rape case of Sharon Strain was brought to trial and both defendants were acquitted by the jury. Masterson testified that he recalled only a small part of the trial and could not recall seeing Ms. Strain in court or at the courthouse.

DDA Kelliher asked her protected witness, “When did you first see Sharon Strain?” Masterson responded, “When we raped her.” With a slight smile on this face, Masterson said he and Thompson raped Ms. Strain in October or November 1971.

DDA Kelliher produced a transcript of the preliminary hearing and directed Masterson to a portion of the document, which indicated the alleged rape occurred on December 2, 1970. Masterson corrected his testimony regarding the date of the alleged rape to correspond to the date on the document.

Having been reminded of the correct date, Masterson now testified that on December 2, 1970, he and Thompson took a ride in a Buick Convertible owned by the business. Masterson drove and he said that the drive started about 5:30 or 6:00 p.m. and Masterson drove. He could not recall where they were going. As they were driving, they noticed Ms. Strain’s vehicle stopped on the side of the street. Thompson told Masterson to stop but Masterson did not know why. The witness said that Thompson got out of the car and did something with Strain’s car while talking to her. Masterson remained in the Buick and he could not hear what they said. Masterson “thought” Ms. Strain’s car was a dark Mustang. Thompson got into Strain’s car with her. Thompson drove the car after telling Masterson to follow them. Masterson did not ask where they were going.

DDA Kelliher asked her witness, “Why did you following Thompson?” Masterson still said he did not know why he followed.

Masterson continued saying he drove for a few minutes but could not recall if he was driving on a freeway. Eventually, Thompson who was driving with Ms. Strain as his passenger in the Mustang, turned off the freeway at the “Prairie City or something” exit off Highway 50 while going east toward Placerville. Masterson followed and both cars stopped on a dirt road.

Then, for a short time, Masterson stated that both Thompson and Strain stayed in the Mustang and Masterson stayed in his Buick. Thompson and Strain got out of her car and walked over to Masterson’s car. Thompson opened the passenger door and placed Strain in the back set while Masterson sat in the driver’s seat. Thompson got into the front seat on the passenger side. Masterson did not recall seeing any physical interaction between Ms. Strain and Thompson before she was placed in his car because he could not see what they were doing, if anything, in Ms. Strain’s car.

Masterson testified he saw Ms. Strain lying in the back seat: “I had oral sex with Ms. Strain for an extremely short time. Phil told me to do this.” Masterson said he “orally copulated Strain and did not talk to her before it happened. She was still in the back seat when I orally copulated her. I do not recall being in the back seat but I went down on her. I was in the back seat. Her clothes were on, but her panties were off. I do not know how her panties got off. I do not know what else she was wearing. I don’t recall if she wore panties, a shirt or a dress. I did not ask if it was okay to have oral sex with her”.

DDA Kelliher asked, “Why did you have oral sex?”

Masterson replied, “I really can’t answer that. I don’t know. Strain was silent when I had oral sex with her. She did not say stop or indicate that I should continue”.

Masterson said Thompson then grabbed Strain, picked her up and pulled her outside. Thompson then sat down in the passenger seat and sat Strain on top of him. Masterson stated that Thompson penetrated Strain. Masterson continued saying, “Strain was silent while Thompson was penetrating her.”

The prosecutor now specifically asked, “Was Strain a “willing participant” in the sex act with Thompson”? Masterson answered, “No. I do not know exactly what Strain said, but she seemed terrified and scared.”

At this point Defense Attorney Dain Weiner objected for lack of foundation. Judge Wagoner sustained the objection by striking the words “but she seemed terrified and scared.”

Masterson testified that after Thompson penetrated Strain, Thompson got out of the car and Masterson moved to the passenger seat. Thompson then put Strain on top of Masterson in a seated position. Masterson said while Strain sat on top of him, “I didn’t get an erection…. If I penetrated…. I am sure I penetrated but….”

DDA Kelliher asked, “Did you ask Strain if she wanted intercourse?” Masterson replied, “No.” Kelliher rephrased her previous question asking, “Did Strain appear to want intercourse?” Masterson said that Strain appeared to him as a “frigid body”. Then he elaborated, “She was crying. I don’t recall if Strain cried the whole time she was in the Buick”.

Masterson continued that Strain then got out of the car on the passenger side and just stood there. Masterson also got out of the car and went to talk to Thompson who was standing toward the front of the Buick on the passenger side.

At this point Masterson corrected his previous testimony by stating that when he pulled up behind Strain’s car, he turned around so that the cars were back to back. They were parked on a dirt road. There was no light there and no other cars around. The area was dark and deserted.

Masterson testified that he talked to Thompson who was standing by the Buick. Strain walked back to her own car. Masterson said, “Let’s go.”. Thompson said, “We can’t. She could identify us. She saw the license plate”. Masterson testified that Thompson said he was going to kill Strain and he disagreed saying, “No. I don’t want to do that. Let’s leave.”

Masterson had no weapon with him and he did not see that Thompson had any weapon. Thompson had the keys to Strain’s car and he threw them on the ground in the opposite direction from the Mustang so she could not find them.

Masterson drove himself and Thompson away in the Buick with the lights off so Strain could not see the license plate. He saw Strain standing beside the road but he did not go back to that area.

Masterson testified he did not see Thompson go back and talk to Strain after he threw her car keys away. He also did not see Thompson hit Strain while she was in the car that Masterson was driving. Masterson volunteered, “I was not in the car when Thompson was hitting her.” Defense counsel Weiner moved to strike for lack of foundation and the Judge struck the entire statement.

DDA Kelliher followed up by asking if Masterson saw what Thompson and Strain were doing in Strain’s car. Her witness acknowledged he was not in a position to see them.

At 3:20 p.m., the court called recess.

Twenty minutes later, at 3:40 p.m., Masterson returned to the stand to continue his direct examination. His eyes darted around the courtroom and he said that Thompson said he “would kill Strain” when Strain was standing by her car and Strain was nearby.

DDA Kelliher asked, “Did Thompson yell at Strain?” Masterson said that he could not recall.

Masterson testified that when Strain was in his car and Thompson was penetrating her, Strain did not say stop. But the witness stated that “She said, “No, it hurts” when Thompson was inside her”.

Then the following puzzling exchange took place:

Kelliher: Did Thompson respond?

Masterson: No. Thompson did not stop.

Kelliher: Did Thompson say anything about the car trunk.

Masterson: Not about the trunk. Thompson wanted to take Strain somewhere else, but did not say where.

Kelliher: Did you see injuries on Strain?

Masterson: A lot of blood. Blood all over me.

Kelliher: Did you see injuries to Ms. Strain’s face?

Masterson: It was too dark to see her face. I saw injuries around Strain’s face, but not sure if I saw injuries or imagined that there would be injuries.

Attorney Weiner again objected for lack of foundation and the judge struck the testimony Masterson had just given regarding injuries to Strain.

DDA Kelliher asked, “When Strain was in the car, did she ask to keep her clothes on?” Masterson replied, “No”.

Kelliher then inquired, “Shortly after this night, were you and Thompson arrested”? Masterson replied, “The next day at the Masterson car lot. We went to court”. Masterson then said that there was a preliminary examination in 1971 but “I can’t recall it”. He continued, “I saw Strain in the courtroom, but did not recall Strain testifying.

Masterson continued saying that “John Mays testified at one of the trials”. Masterson said that he and Thompson were arrested a second time but “I do not know how the system works. John Mays was on the witness stand. I talked to Mays before he testified. Mays was a mechanic at the Masterson car lot. Phillip Thompson talked to Mays, in my presence, at the car lot right after we were arrested. No one else was present. Thompson said “We were at the shop late that night. Mays was working on a car with us”. Masterson said, “Thompson told Mays to testify to that, even though it was not true. Masterson was in court when Mays testified”.

Masterson admitted on direct examination that he did not tell anyone in 1971 that he had kidnapped and raped Sharon Strain. The first person Masterson ever told this to was Sheriff Detective Rick Fitzgerald in 2007. He didn’t tell anyone before Fitzgerald contacted him and interviewed him.

Masterson testified he last saw Thompson in 1971 after the Sharon Strain trial. They had pulled up at a stop sign by L Street and 11th in downtown Sacramento, the Capitol was down on the left side. Masterson was living somewhere else then but not in Sacramento. He had not seen Thompson for some time. Thompson told him he wanted to get together with him. Masterson did not want Thompson to visit his home, so he met him somewhere else. Thompson had a Lincoln he got from “My Dada”. It was sold to Thompson’s parents, and then Thompson had it. It was a 1965 white 4-door Lincoln, with blue and green fabric seats inside. It had a small dent on the back side of the car. Masterson had never seen Thompson drive the Lincoln before. Thompson said, “We are going to another guy’s house to ‘do some stuff’. Masterson said he did not want to go with Thompson. However, Thompson drove and they went on Arden Way back to town. By that time, Masterson said, “I was terrified of Phil Thompson. Another car was following us”. Thompson showed Masterson a gun – in the center ash tray was a small Derringer, a very small gun. Masterson testified he did not know about guns, but it was a very small gun sticking out from the ash tray. “Phil Thompson let me know it was there. But it was in plain sight.”

Masterson said there were other cars on the street, but behind Thompson’s car on Arden Way, was the same car that was following them down town. They took an off ramp from the free way and drove about six miles. Masterson said to Thompson, “Stop the car.” Thompson pulled over on the left hand side of a 3 or 4 lane one-way street and parked. The car which was following them parked behind them. Masterson told Thompson to stop because Masterson wanted to leave. He feared for his life. Thompson stopped the car. Masterson got out of the car and ran. When he looked back he saw the car that had been following them was now parked behind Thompson.

In 1971, Thompson drove various cars, Masterson said. One was a 1967 tan-white Oldsmobile with a glass back window. It looked like a hard top. He drove a Lincoln convertible with a black hard top. He also drove other cars, Masterson testified.

Masterson stated that in 1971 he and Thompson were arrested and charged with burning a car. The trial never occurred because the charges was dismissed. Steven Ross, an employee of Thompson’s was a witness. Ross did not show up at trial. Masterson began saying, “Before trial, Thompson said…..” He was interrupted by an objection by the defense attorney Weiner who citing lack of foundation.

At 4:15 pm Judge Wagoner called a recess. The jury was escorted out and attorney Weiner argued lack of evidentiary foundation should prevent Masterson from testifying about Steven Ross’s death. The following exchange then took place.

Judge Wagoner: What did Thompson say to you before trial?

Masterson: On the day of the trial, Thompson said he (Ross) won’t be talking. He ended up dead in a ditch.

Kelliher: “The foundation is that Masterson’s knowledge regarding Ross caused Masterson to be fearful. Therefore he ended his relationship with Thompson. It goes to credibility and state of mind”.

Weiner: Clearly this witness is tampered with. This was not in the interview I heard. Someone is coaching him. Something is fishy here. The interview we reviewed and the transcript show no one making a comment that the witness was dead in a ditch.

Kelliher: Masterson says in the transcript that he was fearful of Ross. Masterson has recalled things after the first interview. Now he recalls more. You can cross-examine him on this issue.

Judge: We will call Masterson back at a later time. A copy of the transcript goes to Weiner. Weiner says he did not see the statement. Weiner must be ready to cross-examine at any time. There is a whole security issue. I will not delve into that.

It remained unclear whether Judge Wagoner ruled or did not rule whether or not Masterson’s potential testimony concerning the allegation by Masterson that Thompson said the witness Ross was dead in the ditch could be heard by the jury. However, the jury did not hear it because of the objection and the recess and voir dire.

At 4:25 p.m. Judge Wagoner calls the jury back and stated that he has a meeting with the Administrative Office of the Courts. The jury was told that they would leave early and return at 8:45 am the next day. With that statement court was adjourned.

Kathryn Joanne Dixon © 3/11/08
PO Box 217
Fremont, CA 94537