Death Penalty Decision Deadlocks Alfaro Jurors : Courts: Mistrial declared with panel hung at 10-2 in favor of gas chamber for brutal murder of 9-year-old Autumn Wallace. DA will seek retrial of penalty phase.

By MARK I. PINSKY

April 9, 1992 12 AM PT

TIMES STAFF WRITER

SANTA ANA — A jury deadlocked early Wednesday over sending Maria del Rosio Alfaro, a 20-year-old mother of four, to the gas chamber for stabbing to death an Anaheim schoolgirl who was the only witness to a robbery.

Superior Court Judge Theodore E. Millard declared a mistrial in the penalty phase of the proceeding against Alfaro, who was convicted by the same jury of killing 9-year-old Autumn Wallace, who was stabbed more than 50 times on June 15, 1990, while home alone.

Late in the day, the district attorney’s office announced it would retry the penalty phase, again seeking death for Alfaro.

The final jury vote was 10-2 in favor of the death penalty, according to jury forewoman Paulette O’Dell, who said the jury took 14 votes in their four days of penalty-phase deliberations. In the previous ballot, 11 jurors had favored execution, with one holding out for life in prison without parole, she said.

Citing the lopsided deadlock, Deputy Dist. Atty. Charles J. Middleton said, “The jurors voting for death were so strong, it leads us to believe there is more than a good chance that another jury will vote for death.”

After the mistrial was declared shortly before noon, the jurors left the courthouse through the judges’ private corridor to avoid the crowd of journalists in the hall and downstairs.

The mothers of both the victim and the defendant, who were in court, declined comment afterward. However, when O’Dell told the judge that the majority had voted for death, Linda Wallace said, “Good.”

O’Dell was one of the two holdouts and, in a telephone interview, she said that Alfaro’s sex, age and children “were contributing factors, but not the only ones” affecting her position. She declined further comment.

Another juror, who asked not to be identified, said that he felt that the aggravating factors outweighed the mitigating factors “by a long shot.”

He said jurors looked hard for any signs of remorse on Alfaro’s part, but “we just couldn’t find it. . . . We just didn’t see it. It just wasn’t there.”

Alfaro was also convicted last month of burglary, robbery and two special circumstances in connection with the first-degree murder. Being found guilty of either of the special circumstances--murder during a burglary and murder during a robbery--would be sufficient to trigger a penalty phase with the possibility of execution. In addition, Alfaro was found guilty of separate counts of using a knife in each of the crimes.

After the mistrial was declared, Middleton said he was “disappointed a little bit” by the outcome.

In the afternoon, after meeting with his staff, Middleton said he would ask Millard to schedule a new penalty phase, which he estimated would take three weeks.

While the additional cost of the proceeding--about $7,000 a day--was a consideration in his decision, Middleton said “it wasn’t a big factor.”

A different jury will decide whether to recommend death or life without parole. If the verdict in that proceeding is death, Alfaro would become the first Orange County woman on Death Row.

“I felt, along with the other 10 jurors, that it was a very strong case for a death sentence,” Middleton said. “But two jurors did come to a different conclusion. . . . I have no problem in recommending death to a jury” in this case.

Alfaro’s attorney, William M. Monroe, said he was “relieved” by the vote. “I think two of the jurors said, ‘Enough is enough. Let’s stop the killing.’ ”

Alfaro’s reaction to the result, Monroe said, was: “Thank God.”

Though the jury took less than four hours to find Alfaro guilty of the murder and related charges, the penalty phase deliberations, which began late Thursday, were a different matter. After 15 hours of discussions, the jury told the judge Monday that it had reached an impasse, with two jurors holding out.

John W. Abouchar, who served as the foreman at the outset of the penalty deliberations, asked Millard whether a recommendation of life without parole meant that Alfaro could never be released.

The judge told them that the governor had the right to commute either a death sentence or a recommendation of life without parole, but then added that this should not be a consideration in their decision. He did not, as Monroe requested, tell them that the governor could not commute such a life sentence until the defendant had served at least 30 years in prison.

Monroe said that, after the judge’s instruction, he felt the two holdout jurors “were going to switch and I was afraid that we were going to have 12-zip for death.”

According to both prosecution and defense attorneys, the new penalty phase will probably be an abbreviated version of the guilt phase of Alfaro’s trial.

During that proceeding, the prosecution presented an abundance of physical evidence, 109 exhibits, including Alfaro’s fingerprint and bloody footprint in the bathroom, and bloody residue on her white, high-topped running shoes.

But the heart of the prosecution’s case was a 4 1/2-hour, videotaped interview Alfaro gave to two Orange County sheriff’s investigators two weeks after the killing. In the tape, which was played in the courtroom, Alfaro tearfully admitted that she alone was responsible for instigating the burglary and committing the murder.

High on cocaine and heroin, she said in the tape, she got two friends to drive her and her infant son to the Wallace house, knowing that Autumn’s mother, Linda, and older sister, April, would not be home. April Wallace was an acquaintance of Alfaro’s, but she said she planned to burglarize the house and sell the contents to buy more drugs.

At the house, she gained entrance by telling Autumn--who was coloring and cutting out paper in the living room--that she needed to use the bathroom. Alfaro told investigators she took a knife from the kitchen drawer and lured Autumn there.

“That’s when I did it. . . . I stabbed her,” Alfaro said on the tape between sobs , “ ‘cause she knew who I was.”

Autumn, a popular A-student at Jonas E. Salk Elementary School, died without making a sound, Alfaro said.

“I was really wired, really coked out,” she said. “I got kind of crazy. . . . Something just got into me and I thought of doing that. I don’t know.”

The defense scenario, laid out in statements and arguments by Monroe, was that the crime was masterminded by an unidentified accomplice. Although Monroe never called any witnesses to substantiate this version, Alfaro repeated it under cross-examination during the penalty phase of the trial.

Alfaro maintained she was forced to enter the house and participate in the killing at knifepoint, that she stabbed the girl a few times but that the accomplice inflicted the vast majority of the blows.

On the witness stand, Alfaro expressed remorse, reading from a letter she wrote in jail, saying: “Please know that I am deeply and truly sorry, Autumn, and I will pay for the rest of my life for what happened.”

Times staff writer Matt Lait contributed to this story.