People v. Lee

1

THE PEOPLE, Plaintiff and Respondent, v. RICHARD ELMO LEE, Defendant and Appellant.

C098085

California Court of Appeals, Third District, San Joaquin

March 21, 2024

NOT TO BE PUBLISHED

(Super. Ct. No. STKCRFECOD20180012122)

RENNER, J.

Defendant Richard Elmo Lee orchestrated the murder-for-hire of a doctor who treated his late wife. A jury found defendant guilty of first degree murder and found true the special circumstance that the murder was committed for financial gain. (Pen. Code §§ 187, subd. (a) and 190.2, subd (a)(1).)^[1] The trial court sentenced defendant to state prison for life without the possibility of parole.

Defendant appeals, raising two sets of issues. First, he argues the prosecution violated Brady v. Maryland (1963) 373 U.S. 83 (Brady) by failing to timely disclose information contained in the lead investigator's personnel records. In a related vein, he argues the trial court erred in denying mid-trial motions to dismiss and declare a mistrial, and a post-trial motion for a new trial.

Second defendant argues the trial court erred in admitting evidence of a .32 caliber semiautomatic pistol that was not the murder weapon, or alternatively, that defense counsel rendered ineffective assistance in failing to object to evidence of the pistol.

We will reject both sets of issues and affirm the judgment.

I. BACKGROUND

Defendant was married to Bonnie. They had been together since they were teenagers, some 60 years before the events described herein. Bonnie suffered from various health problems, including problems with one of her feet. Bonnie was treated for an ingrown toenail by Dr. Thomas Shock, a podiatrist. The toenail became infected and gangrenous, and Dr. Shock eventually amputated Bonnie's toes and half of her foot. Bonnie's health and quality of life declined precipitously, and she passed away in 2016 at the age of 78.

Defendant blamed Dr. Shock for Bonnie's death. He told his daughter, Cheri, he wanted Shock dead. At first, defendant told Cheri he intended to kill Shock and take his own life. Later, he told Cheri he met a man at a gas station who was going to help him kill Shock. Cheri thought defendant was just blowing off steam.

A. The Shooting of Dr. Shock

Dr. Shock lived in Lodi with his wife of many years, Nancy. On the night of August 1, 2018, Nancy went upstairs to bed sometime between 9:00 and 9:30 p.m. Shock stayed downstairs.

A neighbor was walking across the street from the Shocks' house that night around 9:45 p.m. The neighbor heard a gunshot and saw a man running toward a car parked in front of the Shocks' house. Another neighbor was driving by the house around the same time. That neighbor heard two gunshots and saw a light-colored SUV idling in front of the house. Both neighbors saw someone drive away quickly.

Police officers from the Lodi Police Department responded shortly thereafter. They found Dr. Shock lying across the threshold of the house. Shock had been shot in the chest, arm, and head and was unresponsive. An autopsy and ballistics analysis would later reveal that he had been shot three times at close range with bullets consistent with a .38 special or a .357 magnum revolver. Shock was declared dead at the scene.

B. Investigation

Officers secured the scene and detectives began their investigation. Surveillance videos from neighbors showed a single vehicle-an SUV-driving down the street around the time of the shooting. The SUV was registered to codefendant Raymond Jacquett.

A piece of paper was found near the body. Detective Michael Hitchcock, the lead investigator, determined the paper was a page from a complaint against Dr. Shock to the Medical Board of California by Bonnie. The page was analyzed for fingerprints and found to contain the prints of codefendants Mallory Stewart and Christopher Costello.

A search warrant was executed on Costello's cell phone.^[2] An examination of the phone revealed that Costello called defendant the day before the shooting.

A search warrant was executed on defendant's house. Police found a copy of Bonnie's complaint against Dr. Shock. The complaint was missing a single page-the one found at the crime scene. Police also found a handwritten note from defendant to his children, stating, in part: "Maybe I will find out why God took mom so soon and let her suffer so. I believe in an eye-for-an-eye .... I hope Shock spends his time in [hell] . . .and I get to see him face-to-face."

Police searched defendant's computer. They found several searches relating to Dr. Shock, including a search for his home address. They also found searches relating to guns and silencers. Defendant's bank records showed he made a series of withdrawals totaling $5,600 in the days before the shooting. They also reflected a charge at a diner in Sacramento on the day of the shooting.

A search of the California Department of Justice's automated firearm system database revealed that defendant owned three revolvers, all .38 caliber. No such weapon was found in defendant's house. However, police found a .32-caliber semiautomatic pistol. Police also found three boxes of .38 special ammunition, with 10 rounds missing from one of the boxes.

Police recovered several cell phones from defendant's house and car. As we shall discuss, call detail records showed defendant communicated with Costello and Stewart in the days leading up to the shooting. Cell site locational data likewise showed that members of the group were in the same places at the same times on the day of the shooting. Defendant and the others were arrested and taken into custody.

C. Charges and Dispositions of Codefendants' Cases

The four men-defendant, Costello, Stewart, and Jacquett-were charged by consolidated information with murder with special circumstances of murder for financial gain and lying in wait (§§ 187, subd. (a), 190.2, subd. (a)(1) and (15).)^[3] Defendant pled not guilty and denied the allegations.

Jacquett and Costello were each tried separately. (See People v. Jacquett (July 14, 2022, C091059) [nonpub. opn.]; People v. Costello (May 9, 2023, C095289) [nonpub. opn.].) Jacquett was convicted of second degree murder and sentenced to 15 years to life in state prison. (People v. Jacquett, supra, C091059.)^[4] Costello was convicted of first degree murder for financial gain and sentenced to life in prison without the possibility of parole. (People v. Costello, supra, C095289.)

Stewart entered a negotiated plea in which he agreed to plead guilty to first degree murder and receive a sentence of 50 years to life in state prison in exchange for his testimony against defendant.

D. Jury Trial

Defendant's case was tried to a jury over the course of several weeks in March 2022. The prosecution's witnesses, including Detective Hitchcock, testified substantially as described ante.^[5] The prosecution also presented other evidence that will be relevant here, which we will attempt to summarize as briefly as possible.

1. The Prosecution's Case

As previously discussed, Cheri testified to conversations in which defendant, her father, expressed an intent to kill Dr. Shock. She also testified to conversations after the shooting. According to Cheri, defendant said three men came to his house on the night of August 1, 2018. Some of them, including defendant, drove to Shock's house. Defendant told Cheri he waited in the car and watched as one of the men walked to the door and shot Shock with defendant's .38 caliber revolver. Defendant said he paid the men $5,000. He asked Cheri to testify that he had given her $3,000.

Cheri was interviewed several times by Detective Hitchcock and Eduardo Rodriguez, an investigator with the San Joaquin County District Attorney's Office. She initially went along with defendant's version of events. She told Hitchcock and Rodriguez she received $3,000 or $3,500 from defendant and insisted he never said anything about hurting Dr. Shock. However, she later called Rodriguez and told him defendant had admitted to playing a role in the shooting.

Cross-examination focused on possible reasons for Cheri's change in tune. Cheri admitted lying to Detective Hitchcock when she said defendant had given her $3,000. She also admitted lying when she said he never mentioned hurting Dr. Shock. Cheri acknowledged that she had an interest in defendant's financial affairs and his mounting legal fees were a source of concern to her. At some point, Cheri learned one of defendant's attorneys had placed a lien on defendant's house. Cheri was disappointed, as she had always understood she and her brother stood to acquire an interest in the house. She urged her father to fire his attorney and retain someone less expensive. Defendant refused. Cheri called Detective Rodriguez less than two weeks later. Rodriguez, who testified for both the prosecution and defense, would later testify that Cheri was upset about the house when she told him about defendant's alleged admission.

Stewart testified pursuant to the aforementioned plea agreement. Stewart said he met defendant through Costello on the day of the shooting. They had lunch at a diner in Sacramento. Afterwards, they went to a nearby bank, where defendant withdrew money to give Costello. A plan was made to meet later at defendant's house in Lodi.

Stewart and Costello were eventually joined by Jacquett. The three men drove to defendant's house. Stewart and Costello went inside and spoke with defendant. Defendant showed them a photograph of Dr. Shock on the Internet. He told them he wanted Shock dead for having botched surgery on his wife. He showed them two guns and suggested they use a pizza box as an excuse to approach Shock's door. In the end, they decided to approach Shock's door with a clipboard and piece of paper.

Defendan...