Metropolitan News-Enterprise


Friday, July 8, 2011


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S.C. Upholds Death Sentence for ‘Cold Storage Killer’

Justices Reject Claim Killer Could Not Get Fair Trial in Orange County




The California Supreme Court yesterday unanimously upheld the death penalty for the convicted killer of a woman whose body was found in a freezer on his property three years after her abandoned car, which had a flat tire, was found parked on the shoulder of the southbound Corona del Mar Freeway near the Newport Beach exit.

The justices rejected the argument that extensive pretrial publicity and public hostility during the trial deprived John Famalaro of his constitutional right to due process of law.

 Famalaro was sentenced to death for the 1991 kidnapping, sexual assault and bludgeoning death of 23-year-old Denise Huber. Prosecutors convinced jurors that Famalaro kidnapped Huber after her car broke down, then sexually assaulted and murdered her at a Laguna Hills warehouse.

Her body was discovered after Famalaro relocated to Dewey, Ariz., where a local business owner who had arranged to buy some paint from Famalaro alerted police to a suspicious truck on his property. After determining that the truck had been stolen in Orange County months earlier, police searched the premises and found a freezer, located outside with a 25-foot extension cord running to the house.

Thinking at first that they had stumbled upon a drug lab, officers removed several layers of plastic bags and other contents before finding Huber’s body—which prosecutors said Famalaro kept as a souvenir of the murder. The case became the subject of a 1999 true crime book, “Cold Storage” by Don Lasseter.

Famalaro did not testify at his trial. His defense did not argue that he was innocent of the killing, but disputed the kidnap and sexual assault allegations.

In the penalty phase, prosecutors presented testimony from two of Famalaro’s ex-girlfriends regarding incidents of sexual violence, as well as testimony by Huber’s parents about how her disappearance, and the later discovery that she was dead, affected their lives.

The defense sought to depict Famalaro as having suffered from a dysfunctional childhood. They said that he and his siblings were ostracized because of their mother’s strange compunctions, and that they were physically and emotionally abused.

Ann Famalaro, the defense explained, was a conservative activist who set out to run for the Santa Ana City Council on an anti-abortion, anti-pornography platform, but dropped her candidacy after another son was charged with molesting children. She and her husband subsequently moved to Prescott, Ariz., supposedly to escape the embarrasment resulting from the case.

John Famalaro’s attorneys moved before trial for a change of venue, saying community sentiment, fueled by news stories about the victim and her family, was overwhelmingly negative toward the accused. Orange Superior Court Judge John Ryan denied the motion, saying there was no reason to believe that a fair and impartial jury could not be chosen.

After Famalaro was convicted, the defense moved for a new trial, claiming that continuing negative publicity had influenced the verdict. They cited reports by several jurors that they had heard others, including dismissed panelists, express opinions that the defendant was guilty and deserved to “hang.”

Ryan denied that motion as well, finding no proof that those sentiments had swayed the verdict.

Justice Joyce L. Kennard, writing for the high court, said the trial judge did not err in denying the motions.

In ruling on a change of venue motion, the justice explained, a trial judge must consider several factors, including the extent of the publicity, the seriousness of the crime, the size of the community, and the community status of the victim and the defendant.

Kennard acknowledged that the publicity was heavy and negative. But its impact, she said, was somewhat blunted by the fact that Orange County is served by many media outlets, only some of which prominently featured the case.

The other factors, the justice said, supported Ryan’s ruling. Given Orange County’s size and the fact that neither the victim nor the defendant were prominent apart from their relationships to the case, the defendant did not show that he could not receive a fair trial in the county.

As for the new trial motion, Kennard said, the evidence showed that the trial was conducted in a “temperate and rational manner, and that the high court’s independent review of the record disclosed nothing to cause it to believe that community bias infected the jurors.

The high court yesterday also unanimously affirmed the death sentence for Eloy Loy, convicted of sexually assaulting and murdering his 12-year-old niece, Monique Arroyo, in her bedroom at her family’s Wilmington home.

The defense argued on appeal that Los Angeles Superior Court Judge Charles Sheldon, now retired, erred in admitting evidence that Loy had committed two other sexual assaults, and further erred in telling jurors that if Loy did perpetrate those crimes, they could “infer he was likely to commit and did commit the crime of which he’s accused.”

Justice Ming Chin, however, said there was no error. The prior assaults, he said, were sufficiently similar to the charged crime to support the inference that the defendant was a sexual predator, he said.

As for the jury instruction, Chin wrote, it correctly stated the law governing use of past sexual crimes to prove a disposition to commit such crimes. And the instruction could not, in the context of the instructions as a whole, have misled jurors into convicting the defendant on the basis of his past crimes alone or ignoring the requirement of proof beyond a reasonable doubt, the justice said.

Chief Justice Tani Cantil-Sakauye and Justices Marvin Baxter, Kathryn M. Werdegar, and Carol Corrigan and assigned Fourth District Court of Appeal Justice Judith Haller concurred in the opinion. Kennard concurred separately, arguing that the disputed instruction was improper but harmless.

The cases are People v. Famolara, 11 S.O.S. 3676, and People v. Loy, 11 S.O.S. 3691.


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