The afternoon hours of March 6, 2008 brought events from 1972 into a courtroom on the second floor of the Placerville courthouse. The location is the site of the Betty Cloer murder trial taking place 37 years after the tragic event. The defendant 62 year old Philip Arthur Thompson stands accused of first degree murder and faces life in prison if he is convicted. The prosecution has not accused him of rape and yet a great deal of the court’s time has been devoted to hearing about two rape cases from 1970 and 1971 that occurred in Sacramento County. Judge James Wagoner allowed prosecutor Trish Kelliher to introduce these previously litigated cases so that Kelliher could attempt to prove a pattern of bad conduct that would reinforce the prosecution’s theory of the Cloer homicide which relies largely on a sexual assault of the victim which allegedly led to the murder.
On this Thursday afternoon prosecutor Trish Kelliher seeks to bring before the Cloer jury a woman who has just turned 53 years of age. But prior to allowing her to testify Judge James Wagoner voir dired or previewed her testimony without the jury present.
At 1:45 pm the jury members filed into the courtroom and the testimony of Melinda Montgomery began. The witness was about 5’8” tall with long dark brown hair sprinkled with grey. Her hair was parted on the left side and fell to approximately three inches below her shoulders. Although she wore loose clothing she is very thin, almost gaunt.
The prosecutor shows a picture to the witness and the woman identifies herself and her infant niece in the photo. She says that when the image was taken she was 17 years of age. At that time she was living in Colusa, California.
On direct examination she stated that on March 9, 1972 she decided to hitchhike to a concert taking place in Sacramento, the state’s capital. The two cities are 68 miles apart. Traveling alone she got a ride that took her from her hometown to the larger city of Marysville. Montgomery testified that once there she met a young man named John Dahlsrud who was a friend of hers from Colusa. Together they continued hitchhiking on a Marysville street.
It was a rainy day and the two were cold and wet by the time they caught a ride. The woman continued saying that while she could not describe the kind of car that stopped to pick them up but she did recall that John got into the back seat and she got into the front seat sitting between the driver, a black man she identified as James Allen and the man in the passenger seat who she identified as Philip Arthur Thompson. She told the two men that she wanted to go to a concert in Sacramento. They turned on the heat in the car for her. She could not recall what they talked about but said that they were friendly.
After awhile Montgomery said that she had to use a bathroom and they went to a gas station off a levee road exit. Everyone got out of the car. She got back into the front seat and Allen and Thompson got into the car, slammed the door and took off leaving John behind.
Montgomery said that, “I was scared and yelling and screaming.”
James Allen, who was driving the car, continued on despite her screams. She said that, “Philip Arthur Thompson pulled my hair and said shut up or I would get hurt.” She further stated that Thompson yelled at her while they were driving. She saw a revolver; she knew it was a revolver because her stepfather had a revolver.
After leaving the gas station Allen drove down a road that ended. He turned around and drove back past the gas station and Montgomery could see John standing there. Allen drove on to Sacramento.
When they got to Sacramento Montgomery saw Allen exit at X Street and the car stopped at James Allen’s house. Both Allen and Thompson pulled her out of the car. She was screaming, kicking, fighting, and hollering for help. She said that once they stopped at Allen’s house, Thompson chocked her and outside of the car he grabbed her hair. Both men pulled her up the stairs. Allen pulled her and Thompson hit her hard. Then they gagged her with a handkerchief of cloth.
Melinda Montgomery described James Allen as a tall, black male.
Both men pulled her up a flight of outside stairs to an upstairs apartment where they shut the door and threw her down on a couch. Montgomery drew a layout of the apartment that became Exhibit 310.
Living Room ] Front door
Bedroom # 2 - Bedroom #1
James Allen told her that he wanted her to try on some clothes. He gave them to her. She did not put them on. Allen had her go into the bedroom #2. Montgomery said that she could see that Thompson was polishing a rifle or shot gun. She said that Thompson was in bedroom #1 and Allen in bedroom #2. She went to the bathroom.
Montgomery said that “Allen said do what I tell you because Thompson is crazy and will kill you.”
At this point defense attorney Dain Weiner objected based on hearsay. Judge Wagoner overruled the objection allowing the statement in, not for the truth of the matter asserted but, just regarding state of mind of the witness.
Montgomery then testified James Allen raped her in bedroom no. 1. The rape was described as sexual intercourse. She said that “I consented to sex because James Allen had a gun and I was scared to death.” Then, she said, that Allen went to Thompson and said it was his turn.
Montgomery returned to the couch and when she tried to get out the front door to leave, Allen pushed her back down on the couch. Montgomery saw Thompson in bedroom no. 1 and he had a rifle. Allen took Montgomery to Thompson and said, “go in there.” Montgomery stated that she was scared and she did what she was told. She testified that Thompson had sexual intercourse with her on the bed in bedroom no. 1. She reiterated that she only consented because she was scared and thought he would kill her if she did not have sex. On the witness stand Montgomery said that she did as she was told but she was crying while having sex with Thompson.
The witness testified that after the sexual acts Allen and Thompson took her downtown so that she could get a ride home. They took her to the auditorium. A police officer was at the door of the concert hall and he would not let her in. The officer threatened to arrest her, maybe because she looked “under the weather”. She testified that Thompson held her arm as she walked toward the auditorium. She stated that she did not tell the cop what had happened because Thompson still had a gun.
After the encounter at the Sacramento Memorial Auditorium, Thompson and Allen took her across the street and they entered a restaurant. Montgomery said that she was afraid because they had a gun on her. She ordered food in the eatery but did not eat. The witness testified that in the restaurant someone was touching her. She did not tell anyone in the restaurant what had happened to her.
While they were sitting there she saw some friends outside and she got up and ran outside toward them. Then, she said, the two men were gone. Montgomery said she told her friend what had happened and her friends took her to another friend’s house where she showered and spent the night.
The next morning the witness said that she took the bus home and told her mother what had happened. Her stepfather told the police in Colusa who instructed the family to report it to the Sacramento Police Department.
Later Montgomery said that she went to court and testified twice about her experience.
At this point deputy DA Trish Kelliher offered a stipulation that Montgomery had identified Thompson in court in 1972. Kelliher introduced a photograph, Exhibit 308, that the witness said depicted Thompson at the time but she said that his hair looked different.
Finally on direct examination Melinda Montgomery identified Thompson as the man who had raped her.
When defense attorney Dain Weiner began his cross examination he questioned if the witness’ prior testimony had been based solely on her independent recollection of the events in 1972. Montgomery replied that she had read the police reports from 1972 several times recently and that some of her testimony was based on those reports and some was independent recollections.
She testified that she met with two Sacramento police officers on March 11, 1972 and told them the truth with the events still fresh in her mind.
Now Melinda Montgomery told attorney Weiner that she left Colusa after 6:00 pm and hitch hiked a ride to Meridian that she said was about 8 to 10 miles outside of Marysville. The witness said that she had a chance encounter with John Dahlsrud who was also hitchhiking from Colusa. Now, however, she said that John was already in the car going south and it pulled over and that car dropped her in Marysville. In other words, John Dahlsrud was already in a car that transported the two of them from Meridian to Marysville.
Ms. Montgomery stated that she had no alcoholic drinks that night. She had just got out of school at 12:00 pm and the bus from school took her to Colusa at 6:00 pm. After 7:00 pm Montgomery hitched from Marysville and was picked up and went to Sacramento. She had been picked up from a main street in Marysville. The car stopped close to Sacramento. She estimated that the distance from Sacramento to Marysville is about 40 miles and it takes about 50 minutes to travel the distance.
The witness said that she had known John Dahlsrud was a friend who had health and mental problems. She described him as about 6 feet tall and stooped over.
Montgomery reiterated her earlier statement that when the car containing Philip Arthur Thompson and James Allen stopped in Marysville, she got into the front seat between Allen and Thompson and John Dahlsrud got into the back passenger seat. She described the car as small and said that Thompson seemed crunched up in the car.
Describing the bathroom stop the witness now said that Allen stopped the car at a levee exit, all of them got out of the car with the men “taking a leak" and with her “squatting down”. This testimony differed from her statement on direct examination where she said that they had stopped at a gas station to use the restroom. Now on cross examination Montgomery said that she was able to get a good look at the men who were about 6 feet away from her. Allen and Thompson were on the front side of the car. It was not light out and the car lights were off. Nevertheless the witness stated, “I got a good look at them.”
Montgomery got back into the front seat of the car and both Thompson and Allen got in also. When John moved to get back into the car, Allen and Thompson shut the door on him so he could not get back in. Allen took off. They went down the levee road, not far, turned around and drove back past John who Montgomery could see standing there.
Allen drove on Route 5 or 99 south to Sacramento and they got off on a west exit. Montgomery could not recall the exit street, but did recall they turned on X Street. She said, “That’s how I found the house” [later when she took the police officers there]. She said that Thompson had shown her a gun and she saw a cylinder in the gun.
After Thompson and Allen were arrested for the rape, Montgomery said she testified in court and told the truth. Over the years the details have changed as she thought about it.
At this point Dain Weiner read from the 1972 preliminary hearing transcript, citing lines 1 to 9:
Q. You have seen the kind of gun he had? A. Yes.
Q. Do you know what an automatic gun is? A. No.
Q. Do you know if it had a cylinder, one of that kind? A. I don’t know.
After Weiner read the excerpts from the PX transcript to Montgomery, she said, “I could see it and I saw a revolver.”
Weiner now questioned the witness asking, “After turning on to X Street did Thompson or Allen blindfold you?” Montgomery replied, “I had my head down. Thompson had me by the hair and kept my head down.” The witness said that she could not see anything else but she saw X Street.
Montgomery said that her hands were not bound and that she had touched the car door and the dashboard in the car. She had also adjusted the heater. She estimated that she spent about 50 minutes in the vehicle.
During cross examination Melinda Montgomery admitted that she had told the Sacramento police officer who took her report that the black man, later identified as James Allen, was 6’2” tall and that the white man identified as Thompson was about 2 inches shorter then Allen. She said Allen was about 175 to 180 pounds, medium build and wore a ¾ rap coat, bell bottoms and that he was clean and neat. She said that she gave the description before she was shown the photo lineup. Montgomery said, “I was only 17. I made a mistake about the height, but not about the face.”
The witness stated that she had no friends in common with James Allen. However, one time after the rape she was at a friend’s house and he came in, looked at Montgomery and she freaked out. Allen then left. Montgomery also stated that she had no business dealings with James Allen and made no money with Allen. This line of questioning apparently had something to do with her admission to grand theft in 1979. She said that she did not steal from James Allen and that she is not lying now.
When questioned Melinda Montgomery admitted that she had lied to a police officer when the officer came to her house in 1990 and asked for her “ex”. Montgomery said that her “ex” beat her up and she feared him. So when he told her to tell the police he was not there, she lied for him. Then the “ex” came out and revealed himself to the police. She received a $100 ticket for lying to police.
In discussing the apartment she was taken to in Sacramento, she said that it appeared that James Allen lived there and that they took her to that apartment because Allen had his clothes there. Montgomery made the comment that “I assumed he (meaning James Allen) wanted me to be a prostitute” although he did not ask her to become one. The witness said that she refused to try the clothes on that Allen gave her. Then Allen raped her. On the witness stand she said that she arrived at the apartment at 7:00 or 7:30 pm.
However it was pointed out that on March 11, 1972 Montgomery told an officer that she got to Allen’s apartment prior to 10:00 pm. Now, when questioned about the time difference by Dain Weiner, Montgomery said, “Well, 7:00 pm is prior to 10:00 pm.”
The witness stated that she was at the apartment for 1 to 1 ½ hours. James Allen raped her after she had been in the apartment for 20 to 25 minutes. She then had sex that lasted 10 to 20 minutes. She sat on the couch at the apartment and talked to James Allen to try to get him to let her go. She said, “I did whatever I had to do.”
She admitted that she had told a police officer that at 10:00 pm she told James Allen, “I will do anything you want as long as you get me to the concert by 10:30 pm.” Montgomery admitted she told the officer that James Allen raped her at about 10:00 pm. Then she said that Philip Arthur Thompson raped her at 10:10 or 10:20 pm.
After that they all got into the car and drove downtown to the auditorium at J and 16th Street. She now said that Allen and Thompson escorted her to the front door of the auditorium. First Montgomery said it was a security officer at the front door, but when Weiner confronted her with a police report, she admitted it was a Sacramento Police Officer standing there. Montgomery now admitted that she smelled like wine. She said that James Allen forced her to drink wine at the apartment. She said that she had at least one glass but she told the officer that she took one small swallow of wine. She said she was not intoxicated, just had a sip of wine. She denied having any other alcohol or any drugs. But the police officer said he would arrest her and told her to “move along”.
It appeared odd that two men who had just raped this 17-year old would now escort her up to a Sacramento Police Officer to drop her off for her concert.
Montgomery said that Allen and Thompson took her to a restaurant at 17th and I Street. While there she said she was vegetarian and she admitted that they bought her a salad. It is interesting to note that on direct examination Montgomery told DDA Kelliher that she did not eat at the restaurant, but at the 1972 preliminary hearing she indicated she ate a salad.
The remainder of the witness’s story conformed to that testimony she gave on direct examination.
Montgomery testified that when she took the cops back to James Allen’s apartment she saw the car that she had been in that night. She had spent about 50 minutes driving with the two men and 1 hour to 1 12/ hours in Allen’s apartment. However Dain Weiner offered a stipulation into evidence that Sacramento Police Technician Bill Ross took latent prints from the car and from the apartment at 1917 Fourth Street, Sacramento, and no fingerprints taken matched those of Melinda Montgomery.
On re-direct examination of her witness, DDA Kelliher established that Montgomery had a black eye and bruises on her arms and that the girl was 17 years old at the time of the preliminary hearing in 1972. The re-direct concluded the testimony of Melinda Montgomery.
When defense attorney Dain Weiner brought Montgomery’s friend John Dahlsrud to the witness stand on March 12, 2008 he said that he could not identify Philip Arthur Thompson as the man in the car that gave him and Melinda Montgomery a ride on March 9, 1972.
So the jury is left to sort out what really happened on that long ago night when a young girl hitchhiked to a concert at the Sacramento Memorial Auditorium. This jury will also be left with the burden of determining who, beyond a reasonable doubt, killed Betty Cloer in June of 1971.
Virginia McCullough © 3/18/08