People v. Howard

• Citation: 243 Cal.Rptr. 842,749 P.2d 279,44 Cal.3d 375
• Court: United States State Supreme Court (California)
• Decision Date: 16 February 1988
• Parties: , 749 P.2d 279 The PEOPLE, Plaintiff and Respondent, v. Gary Lee HOWARD, Sr., Defendant and Appellant. Crim. 22647.

Page 842

243 Cal.Rptr. 842

44 Cal.3d 375, 749 P.2d 279

The PEOPLE, Plaintiff and Respondent, v. Gary Lee HOWARD, Sr., Defendant and Appellant.

Crim. 22647.

Supreme Court of California In Bank.

Feb. 16, 1988.

As Modified on Denial of Rehearing April 21, 1988.

Peter Quon, Jr., Dept. of Justice, Office of the Atty. Gen., Sacramento, for plaintiff and respondent.

Jo Anne Keller, Berkeley, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Jay M. Bloom, John W. Carney and Peter Quon, Jr., Deputy Attys. Gen., for plaintiff and respondent.

LUCAS, Chief Justice.

Defendant Gary Lee Howard, Sr., was found guilty of murder in the first degree. (Pen.Code, § 187; all further statutory references are to this code unless otherwise indicated.) The jury also found that defendant used a firearm during the commission of the offense (§ 12022.5), and that he intentionally committed murder for financial gain, a special circumstance as set forth in section 190.2, subdivision (a)(1). Following a penalty phase trial the jury fixed the penalty at death. Defendant's motion for new trial was denied as was his motion for modification of the sentence. This automatic appeal followed. We will affirm.

I. FACTS

1. Guilt Phase

On the afternoon of May 30, 1981, the body of Walter Berkey was found in a deserted dairy barn near Interstate 10 in Redlands, California. The victim was a 19-year-old junior college student who lived with his parents. Berkey had been shot seven times, once in the back of his left calf, once in the back, once in the left cheek, and four times in the back of his head. Death had occurred at least eight hours before discovery of the body.

Richard "Tony" Lemock was in the sign-posting business in the Redlands area. Lemock met Berkey in the course of doing business because the two were in competition for customers and had argued concerning territorial rights. Both performed a service for realtors, building and erecting any signs that they needed. Starting in early 1981, Lemock made comments to several people indicating his displeasure with Berkey's competition and his desire to "deal" with Berkey because he could no longer handle the situation. At various times, in statements that will be described in greater detail when their admissibility is discussed, Lemock told friends and employees that he would like to have Berkey killed or in some manner scared away. In February or March 1981, Lemock asked a friend, Diane Jensma, to call Redlands police to report that Berkey had narcotics in his car. She made the call but was told to contact the department later when someone could handle the matter, and did not follow up. Around the same time, Lemock asked Barbara Chapman, a former girlfriend, to call police and inform them that "some guy" had offered her son narcotics on his way to school. Defendant supplied her with a description and license number for the car, and an address which Chapman knew related to the "kid in Redlands" with whom Lemock was having business difficulties. In Lemock's presence, Chapman simulated a call to the police in order to avoid arguing with Lemock.

Joy Stevens was both Lemock's "stepdaughter" and his former daughter-in-law. (Her mother, Barbara Chapman, lived with Lemock for seven years; after their breakup Stevens married the son of Lemock's next wife.) Stevens met defendant in February or March 1981 and became his girlfriend, although she knew he was married. In early May, she introduced defendant to Lemock and the two men went for a ride together. Thereafter, defendant told Stevens that Lemock had asked about the price for having someone roughed up. The next day, on defendant's instruction, Stevens told Lemock that the price was $2,500 but, if necessary, $1,500 would be sufficient.

About one week later, Stevens saw defendant with a revolver. Defendant explained he had purchased it in Palm Springs and told her to avoid touching it to prevent fingerprints.

On May 18, Lemock wrote a $750 check to Stevens for "signposts and stuff" and asked her to cash it. The two went to the bank to do so, and Lemock gave Stevens the money in an envelope and asked her to hold on to it. When, later that day, defendant asked Stevens if Lemock had left him anything, Stevens handed him the envelope. Defendant returned the money to Stevens, also telling her to hold on to it.

Later that evening, defendant and Stevens drove to the Holiday Inn together in defendant's distinctive Ram Charger. Taking the money, defendant left the vehicle entered the inn and returned 30 minutes later. Defendant explained that he had just hired Jeff to rough up someone for Lemock and told Stevens that Jeff had said "Well now, just watch the papers." He described Jeff as a "colored guy" who was a hired killer and identified a Black man leaving the inn as Jeff.

The next day, defendant told Stevens that Lemock would pay one-half of the $1,500 before and one-half after the "roughing up" of Lemock's competitor had occurred. About a week later, Lemock telephoned Stevens to ask her to tell defendant that if it was not done by that weekend he should forget it, Lemock would do it himself. Later that day Stevens told defendant of Lemock's message and defendant replied "Okay." He also informed Stevens that if Jeff did not do it, he would have to do it himself because Lemock would not know how to cover his tracks.

On May 27, 1981, Walter Berkey drove to San Diego with friends for a visit. While he was away, a man, identifying himself as "Roger Meeker," ¹ called to say he had some work for Berkey in Palm Springs. The man spoke with Berkey's sister and also left a message on the victim's answering machine. Stevens saw defendant use her telephone repeatedly. He told her he was attempting to find one of Lemock's competitors to discuss his charges for services. The number used for Berkey's sign-posting business was called from Stevens's home over 15 times between May 27 and May 29.

On May 29, Berkey returned home. "Meeker" called him again and arranged to meet at Sandy's Restaurant in Redlands the next morning at 8 a.m. That morning, defendant, his son Gary, Jr., and Stevens had looked for Jeff at a Redlands motel. When they arrived, defendant stated room 25 was Jeff's former room and that Jeff had gone to Las Vegas but would be in touch. Evidence at trial showed that no one named Jeff or having any connection with the case had stayed in that room at the relevant time. After leaving the motel, the three drove along the route that was ultimately taken with the victim in the car. Defendant checked the mileage as they drove.

That night, Stevens, at defendant's suggestion, asked her mother to baby-sit so the couple could rise early the next morning to "take care of business." About 6:45 a.m., Stevens, Gary, Jr., and defendant drove to Sandy's Restaurant in defendant's Ram Charger. They looked for a small white station wagon and one appeared about a half hour later. Defendant sent his son in to find the driver. He returned, unsuccessful, and defendant sent Stevens to call Lemock and ask what Berkey looked like. Lemock asked why, and Stevens replied she did not know. Lemock gave a description and asked Stevens to come to his shop when she left the restaurant.

Stevens then saw Berkey, and upon identifying him told him that she and her "husband" would wait out back in a truck. Berkey emerged a few minutes later and was met by defendant; the two then left in Berkey's station wagon. Fifteen minutes later, Gary, Jr., and Stevens left Sandy's and drove to California Street. They saw defendant standing on the road near a barn and picked him up and drove away.

As they drove to Lemock's shop, Stevens saw defendant remove from his person a wallet and checkbook of the kind later identified as used by Berkey. Defendant told Stevens not to touch the items to avoid getting her fingerprints on them. She also saw defendant place empty "bullet jackets" into his pocket.

When the group arrived at Lemock's shop, Gary, Jr., remained in the car as the other two entered. After defendant handed him the checkbook, wallet and empty cartridges, Lemock said "You're for real" and told them to tell him if there was anything he could do for the pair. Defendant asked that, if anything happened to him, Lemock take care of Stevens, her daughter, and their unborn baby.

While this meeting was taking place, Norm Butters, who worked in the building, entered. He asked if defendant and Stevens had just come from Redlands because he had seen the Ram Charger on the freeway. After discussing the car, defendant and Butters went to look at it.

Around that period Lemock asked Stevens if she was aware of what had happened and thought it was his fault or that he was to blame. Lemock also told Stevens that he would help if ever needed and that he was sorry he had gotten defendant involved. Later that day, Lemock called to say Butters had a "push bar" for defendant to look at which he was interested in selling. The group returned to Lemock's business and defendant expressed interest in buying the push bar or grill guard but stated he had no money until the next Monday. Lemock then wrote a check to Butters telling him defendant would pay Lemock back later. At the same time, Stevens heard Lemock say to defendant, "I will go ahead and I will write him a check for $100 now and that will make it $650."

Early in the afternoon of the same day, defendant, his son, and Stevens, with Stevens's daughter, left for Compton in order for defendant to sell the gun he had recently acquired. When Stevens asked whether defendant had seriously hurt Berkey, he replied "Well, let's put it like this. He won't be stealing no more poles." He then explained that while they were in the barn Berkey began "cussing" Lemock. Angered, defendant pulled out his gun and pointed it at Berkey. When Berkey saw the gun he began to run. Defendant shot him in the cheek and...