Chapter 16
For Arizona officials, the question loomed like a gathering desert thunderstorm—would John Famalaro stand trial in Yavapai County or be extradited to California? County Attorney Tom Lindberg summarized the status in late July. “Right now, the evidence indicates that the truck came from California. The freezer was purchased in California and brought ... to Arizona. It was kept plugged in while it was in the truck. Is that enough to push the case back to California? I don’t know. A blood match would make a stronger case for California jurisdiction.”
The same day, an announcement came from the Orange County Crime Lab that preliminary tests of the blood sample taken from the Laguna Hills warehouse showed similarities to samples taken from the body of Denise Huber. More sophisticated DNA tests would be conducted to determine if conclusive results could be obtained.
Dennis and Ione Huber wondered if it would be better for Famalaro to face a murder trial in Arizona. Justice in California often seems to creep along at an infuriatingly slow pace. When judges sentence killers to death, Californians just shake their heads with cynical disbelief. In 1994, nearly 400 murderers languished in San Quentin’s death row, and only two executions had been carried out in thirty years. Could the state logically claim to have a real death penalty? Residents had overwhelmingly mandated by ballots, twice, their approval of capital punishment. But somehow small activist groups, along with a clogged labyrinth of appeals and legal issues, kept the will of the people from being carried out. Maybe, the Hubers hoped, Arizona could do a better job.
“I’d like to see the death penalty in this case, and I’d like it carried out,” said Ione, still packing in Newport Beach. “My fear is that it might not happen in this state.”
Dennis agreed, but expressed hope that if the evidence brought the Famalaro trial back to Orange County, justice would prevail. “I feel there’s still enough good people here that we can still get a conviction, despite the justice system.” Shifting to the subject of his daughter’s death, Dennis thought the available facts indicated she had been killed in the Laguna Hills warehouse, and that she had not suffered over a period of days or weeks. “It would make sense ... that’s where it happened. I want to believe it happened quickly that night ... I want to believe it was swift. It’s important to me that it was swift.”
John Famalaro’s new defense attorney, Tom Kelly, hoped for a trial in California because he thought laws there would make it tougher to seek the death penalty. “In my opinion, it’s best to have this matter tried in California. I don’t think it’s any secret that Arizona has some of the toughest criminal statutes in the country.” If the two states agreed to move the trial out of Arizona, Kelly would be forced to hand over the defense to someone else. He held no license to practice in California.
The parents had planned for Denise’s body to be shipped to South Dakota for burial by the end of July, but heard that it would be delayed another day so the defense team could conduct their own, independent autopsy.
Moving a deceased person from one state to another is not an inexpensive process. Once again, compassion for the Huber family by a generous Samaritan, who had never met them, would rescue them from bearing the expenses. Police Chief Dave Snowden, acknowledging that the death of Denise had been extremely emotional for him, had been actively involved in not only the investigation, but also in giving his personal time and effort to aid the Hubers in the three-year search. He had recruited a close friend of his, Robert R. Risher, president of an ambulance and mortuary business in southern California, to attach bumper stickers to a fleet of vehicles used in his ambulance business.
Now, Risher volunteered more help. Through his contacts, he arranged for the transportation of Denise Huber’s body to Herreid, South Dakota, at no expense to the family. And in another gesture of extreme generosity, he provided the casket and burial. Risher said, “I know how much this case meant to Dave, and I wanted to help in any way I could. This is a difficult time for people. I have a twenty-two-year-old daughter and can only imagine how they feel. You’ve got to look at it from that point. It’s not often that a loved one is found after such a long period of time. We just want to help put the body to rest and bring the family some peace.”
Twenty years earlier, as a rookie cop Snowden had met a young ambulance driver, Risher, and formed an enduring friendship. During the long association, Risher developed a profound respect for police personnel and sympathy for the tragedies they face. When two cops died in a crashed helicopter, in 1987, he paid for their burials.
Elated by Risher’s generosity toward the Hubers, Snowden praised his close pal. “He’s a compliment to the human race. I love him to death ... He’s an incredible guy.”
In the ongoing struggle to determine, where John Famalaro would face trial, the issue of extradition complicated the problems. Even if investigators concluded that the murder took place in Orange County, and Arizona officials agreed, they couldn’t simply transport the suspect across state lines. If he and his attorney chose to fight extradition, the process could drag on for months.
First, Orange County D.A. Mike Capizzi would be required to convince a superior court judge to issue an arrest warrant for Famalaro. In Arizona, Famalaro would be faced with the decision to go without a fight, or to use the legal system in an all-out effort to prevent his transfer. His determination to fight the move would require Orange County to present the facts to Governor Pete Wilson, who would in turn, contact Arizona Governor Fife Symington. This would set in motion yet another hearing to give an Arizona judge the opportunity to rule on the extradition request. If the judge gave court approval, Famalaro could finally be transported to the Orange County Jail to face arraignment, followed by either a preliminary hearing or a grand jury indictment, and endless hearings on legal motions to dismiss or reduce charges. Each step, like a grueling obstacle course, contains pitfalls that could at any point along the way allow the defendant to walk. Contingent upon prosecutors avoiding legal traps that could set Famalaro free, he would face trial, in which he could be ruled mentally incompetent and sent to an institution until psychiatrists declared him well, at which time he could walk out, free and unfettered. Or a jury might find the circumstantial evidence against Famalaro inadequate to prove guilt beyond a reasonable doubt, in which case he would still walk out, never to be tried again for Denise Huber’s murder.
Constitutional guarantees in the United States are rigidly imposed on the basis that it’s better to set a guilty person free than to convict an innocent one. It’s not a perfect system, but until the human race finds something better, it is all we have. Murder cases in which the prosecutor has nothing but circumstantial evidence, with no corroborating witnesses or hard evidence, metaphorically called “a smoking gun,” are often the most difficult to try.
John Famalaro, by law, was innocent until proven guilty. Convincing a jury of that could be an extremely difficult task.
Three days before the end of July, the announcement came. John Joseph Famalaro would be tried in Orange County, if he could be extradited.
Christopher Evans, the deputy DA. who had spent two weeks in Arizona conferring with county attorneys and observing the investigation, drew the duty of prosecuting Famalaro, and got the word while still lodged in Yavapai County. DA. Michael Capizzi had virtually given him carte blanche to build the case.
Born on Long Island, New York, not far from the birthplace of John Famalaro, Chris Evans grew up in awe and admiration of his father. The senior Evans fought in WWII with the 2nd Marine Division on Guadalcanal, Saipan, Tinian, and Iwo Jima, and returned safety to become a lawyer in Connecticut. “He is why I became a lawyer,” Evans says. “He was a Renaissance man and I wanted to be just like him. He taught me the importance of humility, and when I speak to a jury, I can still remember the importance of that. He was my hero.”
When Chris reached the age of twelve, the Evans family moved to southern California where he completed high school and enrolled at Cal State University, Long Beach, next to the pounding waves of the Pacific Ocean. “I was born in a seaside town, and I’ve spent most of my life close to one ocean or the other. I feel a very strong attachment to the sea, both physically and emotionally.” He finished his academic years at Western State University, Fullerton, where he earned a law degree in 1982. The years in school were not indolent, carefree days at the beach. Evans worked as a fireman and paramedic for twelve years, much of it while in school. The experience would turn out to be valuable for him in his work as a lawyer, particularly in understanding pathology and physiology, not to mention the corollary exposure to police agencies where he learned “cop talk” and enforcement procedures.
After passing the exam, he joined the D.A.’s office in Riverside County, where he worked in the desert community of Palm Springs. It didn’t take him long to figure out that well-know organized crime figures from cold eastern climates liked to spend winters in the warm desert air. It took courage when he faced several of them in court cases. One in particular had been frequently acquitted of various charges. Evans, though, convinced a jury to send the guy to prison.
After two years in Palm Springs, Evans joined the D.A.’s staff in Orange County. One day he accepted an invitation to take a tour of a state prison. He asked a guard who was acting as a guide if any famous inmates occupied the cellblock. “Yeah,” said the guard, and named the man Evans had sent up. A few minutes later, while seated in the cafeteria, Evans spotted the notorious con, who instantly locked eyes with the worried prosecutor. Evans’ pulse quickened when the guard beckoned the stern-faced tough guy. Trying to keep his heart from banging too loud, Evans watched the steely-eyed thug march over to his table. Wondering what it would be like to be murdered right there, Evans waited. The con stood in front of him, jabbed out a thick paw in offer of a handshake, grinned, and growled to the guard, “If my lawyer was as good as this guy, I wouldn’t be here.”
One bit of information passed on to Evans by his father, and later by colleague Bryan Brown, would serve him well in a number of cases. “There are unpleasant things that will happen in trial that you cannot predict. Some will catch you completely off guard. When that happens, you must not show emotion.” From those wise mentors, Evans learned what to do. “When I feel the heat rising from an unexpected turn of events in trial, with my face feeling that hot red, I go to a calm place in my mind. I look calm. When that pressure comes, it is best to ask myself, how can I make this work for me?” Over the years, Evans had used the lesson countless times.
Off the job, Evans often found peace on the ocean sailing his thirty-two-foot vessel along the coast, or across the channel to Catalina Island. When time allowed, he would also join three other prosecutors to don wetsuits and ride surfboards at several southland beaches. One of his fellow surfers, Evans found out, had attended a Catholic high school. The colleague recalled a classmate of his, an odd kid named John Famalaro.
In the middle afternoon of July 29, Chris Evans telephoned Dennis Huber to inform him that Orange County would try John Famalaro for murder. But, of course, they had to extradite the accused killer first. Reporter Jonathon Volzke happened to be sitting in the Hubers’ living room when the call came. He saw Dennis give the thumbs up sign halfway through the conversation with Evans. The settlement of the trial venue was only half the news. The other half was that all autopsy work had been completed, and the body of their daughter could now be sent to South Dakota for burial.
Slumping into an easy chair, Dennis said to his wife, and to Volzke, “This is the end of a chapter. Not the end of the book, but the end of a chapter.” He allowed himself a big sigh and expressed relief that they could have the funeral as planned. “There’s a finality to it.”
Jonathon Volzke traveled to Herreid, South Dakota, with the Hubers to attend the funeral and to become acquainted with his own family’s roots. The Aliso Creek Presbyterian pastor, Walt Shepard also made the trip, as did Police Chief Dave Snowden.
The white steel casket containing the body of Denise Huber arrived in a black hearse with a white top on Monday night, August 2. Dennis, Ione, and Jeff stood close to their beloved Denise that night for the first time in more than three years. The casket remained sealed. “It was like being hit in the face with a snow shovel,” Dennis told reporter Volzke.
Clouds drifted across the broad Dakota sky on the next morning as nearly 250 people crowded around the small, brown, wood-frame First Reformed Church to attend services for Denise. The crowd represented approximately half of the town’s entire population. Because the church pews could accommodate only a fraction of the assembly, attendants set up two television monitors, one in the basement and one outside in the shade of a giant cottonwood tree. In a prominent spot close to the entrance stood a tripod displaying the same photo collage of Denise that mourners had admired at the Newport Beach services.
One of Ione’s nine siblings, Bob Vandenburg, wiped away a tear and said, “Denise has touched more people today than if she’d lived to be one hundred years old.”
Inside, the white casket, decorated with a spray of red and white carnations, stood on a gurney behind the smiling portrait of Denise. For the last time, “His Eye is on the Sparrow” was played for her. Walt Shepard delivered words of faith and several friends and relatives eulogized the beautiful young woman whom they missed so much. Dave Snowden spoke emotionally again, saying, “When I took the oath of a police officer many years ago, I didn’t know what to expect. No one prepared me for the hurt, the pain, the anguish of a case like Denise’s disappearance.” He described the closeness of sitting with the Hubers the previous evening, and the uplifting beauty of watching the sun set across the western plains while visiting the grave of Siting Bull. “When we began this investigation three years ago, we did not know that Denise’s longest travel would be from the arms of her family to the cemetery here in Herreid.”
Eighty-degree temperatures, made even warmer by the sweltering August humidity, didn’t bother the mourners as they gathered at the Herreid cemetery that afternoon. A red canopy shaded the white casket. Ione, wearing a black and white striped jacket, red belt, and black skirt, stood holding Dennis’s hand, as they both bowed their heads in grief and prayer. Other family members stood with them while Walt Shepard led them in prayer. He observed that, “Denise . . . is no longer wandering, lost in our imagination.” At the end of the ceremony, before the casket was lowered into the earth where Denise could at last rest beside her grandfather, a flotilla of multicolored balloons ascended into the cloudy sky.
At a supper afterwards, Dennis watched his granddaughter, Ashley Denise, not yet two, toddle across a lawn. Trying to contemplate the reasoning for his daughter’s death, he said, “I don’t think I could ever begin to figure out why. She was a beautiful, wonderful person who deserved to be in this world, but I guess God wanted her up in heaven more than He wanted her here.”
Ione commented, “I can’t find the words to describe her. She was just a beautiful person and she should not have had to leave us the way she did.”
Usually silent, Jeff couldn’t contain his anger about the accused killer. “I’d love to confront him with my bare hands. And you can put that in quotes. Her death makes you appreciate your loved ones when you’ve got them. It makes you realize just how temporary life is.”
In the cooling twilight of that evening, Jonathon Volzke strolled the length of the quiet farm and cattle town, three whole blocks of tree-lined streets, widely spaced wooden buildings, with one bank, a small cafe, the Huber motel, the hardware store where “Tuffy” Volzke had supplied farmers, the school where a young Ione had taught, and no traffic lights. Peace reigned over the tiny German-Russian community, where doors remained unlocked. The fliers asking “Have you seen Denise?” had at last been taken from store windows, replaced by affectionate posters such as, “Love and prayers to the Huber family.” He tried to picture the buildings in wintery blizzard conditions, and in the imminent fall season when leaves would cover the broad yards. In the quiet dusk, he could almost hear music from the six churches.
Volzke hoped that the Hubers could, indeed, find peace when they moved to Mandan in a few weeks, up by Bismarck, and escape the painful memories of Orange County.