Court Upholds Death Penalty for Riverside Boy’s Killer

The state Supreme Court on Monday upheld the death sentence of the killer of an 11-year-old boy who heroically prevented his assailant from kidnaping his 13-year-old cousin on Thanksgiving in 1984.

The court unanimously rejected an appeal from Horace Edwards Kelly, 31, of San Bernardino, a former private security guard convicted in the fatal shooting of Daniel David (Danny) Osentowski.

The boy and his cousin, Shannon Prock, had gone to a store for candy after a family dinner in the Riverside County community of Pedley. A plaque was erected at the boy’s school, commemorating his actions.

According to testimony, Kelly accosted Danny and Shannon as they were walking home on a darkened, dirt path. He chased them and grabbed the girl, putting a pistol to her neck. Danny tried to flag down passing motorists but returned to aid Shannon as Kelly dragged her toward a van.

Danny kicked the man, enabling Shannon to escape. She testified later that she heard two gunshots and heard Danny say, “Don’t shoot me again. I’ll die this way.” A third shot rang out, striking the boy between the eyes.

Kelly, quickly picked up and questioned by police, at first denied wrongdoing, then broke down and admitted that he had intended to rape the girl and had fatally shot the boy. He said his first shot struck Danny but the second one missed. “I shot again and I got him,” said Kelly.

The court, in an opinion by Justice Armand Arabian, rejected Kelly’s bid for a retrial on grounds that Riverside County detectives had improperly played on the defendant’s religious beliefs during the initial interrogation.

Among other things, Kelly was asked whether he “believed in Jesus,” thought he would someday “go to heaven,” and whether his mother gave him “a Christian upbringing.” Kelly answered “yes” to all three questions--but at that point continued to deny his guilt.

Arabian acknowledged that the tactic of exploiting a suspect’s religious anxieties had been “justly condemned” by the courts. In this case, he said, the questions did not appear aimed at exploiting “a particular psychological vulnerability.” Nor, said Arabian, did the officers’ statements seem to have led to Kelly’s confession.

In a separate concurring opinion, Justice Stanley Mosk, joined by Justice Allen E. Broussard, condemned the religious questions as “serious police misconduct.” Because it was not shown that those questions caused the confession, the conviction and sentence should be upheld, Mosk said.

The court also turned down Kelly’s contentions that the prosecution improperly showed jurors photographs of Danny dead and alive. The photographs of the body were relevant to showing the killing was “coldblooded and intentional,” Arabian said. The photo of Danny while he was alive probably should not have been shown, the justice said, but in this instance must be deemed harmless.

“This was not a close case in which sympathy for the victim might have led to the jury to improperly convict,” wrote Arabian. “The evidence of the defendant’s (guilt) was clear and uncontradicted.”

State Deputy Atty. Gen. Rudolf Corona Jr. welcomed the ruling. “This was a particularly heinous crime, given that an 11-year old boy knowingly gave up his life to save his cousin,” he said. “We can only hope the family can take some solace in the decision. These things are very tortuous for a family.”

State Deputy Public Defender Richard Avila, representing Kelly, said that he would ask for a rehearing before the justices and, if necessary, take the case to the U.S. Supreme Court. “I think the confession issue was very strong and I still do,” Avila said.

Avila said he will continue to contend that the display of a photograph of the victim while alive was prejudicial.

Kelly, in separate proceedings, was convicted and sentenced to death in San Bernardino County for slaying two women, Ursula Houser and Sonia Reed, a week before the murder of Danny Osentowski.