State v. Chong Leng Lee

• Decision Date: 17 December 2019
• Docket Number: Appeal No. 2018AP1741-CR
• Citation: 939 N.W.2d 427 (Table),2020 WI App 6,390 Wis.2d 426
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. CHONG LENG LEE, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

390 Wis.2d 426

939 N.W.2d 427 (Table)

2020 WI App 6

STATE of Wisconsin, Plaintiff-Respondent,

v.CHONG LENG LEE,^† Defendant-Appellant.

Appeal No. 2018AP1741-CR

Court of Appeals of Wisconsin.

DATED AND FILED December 17, 2019

PER CURIAM.

¶1 Chong Lee appeals a judgment convicting him of first-degree intentional homicide by use of a dangerous weapon, possession of a firearm by a felon, and two counts of felony intimidation of a witness, as a party to the crime.¹ He also appeals an order denying his motion for postconviction relief. Chong argues the circuit court should have dismissed the homicide charge because the State failed to disclose, and later intentionally destroyed, exculpatory evidence. He also argues he is entitled to a new trial because the absence of certain transcripts has denied him his right to a meaningful appeal. We reject Chong’s arguments and affirm.

BACKGROUND

¶2 At about 1:50 a.m. on December 8, 2013, police responded to a call regarding a possible gunshot at the Luna Lounge in Appleton. When officers arrived, they found the victim, Joshua Richards, on the floor near the bar’s entrance. Richards had been fatally shot in the head.

¶3 A security guard from the Luna Lounge told police that "two Asian individuals" had left the scene after the shooting, and they "were wearing white vest and white hat [sic]." Video footage from nearby traffic cameras and a security camera inside the Luna Lounge showed three individuals—who were later identified as Joe Thor, Paul Lee, and Phong Lee—running out of the building just after the shooting.² The record indicates that Chong and Paul are brothers. The security camera footage also showed other individuals, including Chong, exiting the Luna Lounge shortly after the shooting.

¶4 On the evening of December 11, 2013, police interviewed three possible witnesses to the shooting: Watou Lee, Mikey Thao, and Ryan Thao. None of those witnesses identified Chong as the shooter. Ryan provided a description of the shooter’s clothing and told police the shooter had come "from the bar into the foyer area with a couple other people[ ]." Mikey and Watou also provided descriptions of the shooter. All three men told police that they were "very concerned" about their safety and "did not want to be identified" or "get involved" in this case.

¶5 Police also interviewed Paul at his place of work on the evening of December 11. They did not ask Paul about Chong during that interview because they had no information at that time suggesting that Chong was the shooter. After about one and a half hours, Paul was taken into custody and transported to the Appleton police station.

¶6 In the meantime, other officers interviewed "several females" in Milwaukee who indicated that Chong had "made some statements to them admitting to doing the shooting." Thor also told police that Chong had admitted being the shooter and disposing of the gun. On December 12, police interviewed Paul two more times while he was in custody at the Appleton police station, and during the second of those interviews Paul told police that Chong was the shooter.

¶7 On December 16, a criminal complaint was filed charging Chong with one count of first-degree intentional homicide by use of a dangerous weapon and one count of possession of a firearm by a felon. An Information was filed in March 2014 adding four counts of felony intimidation of a witness, as a party to the crime.³

¶8 The State did not disclose to the defense that the police had interviewed Watou, Mikey, and Ryan in December 2013. The recordings of those interviews were retained for seven or eight months, and the police then destroyed them. An officer later testified that the recordings were destroyed because the witnesses had requested that the police not disclose their identities and because the police "knew through discovery the defense would be able to obtain [the recordings]."

¶9 Nonetheless, at some point the police inadvertently disclosed Watou’s, Mikey’s, and Ryan’s identities to the defense. The police then reinterviewed Watou, Mikey, and Ryan in April 2015. Recordings and "reports" of the April 2015 interviews were provided to the defense. Based on that evidence, one of Chong’s attorneys noted during a motion hearing in May 2015 that it was clear the police had interviewed Watou, Mikey, and Ryan before, and she requested "all reports, notes and recordings of the initial interviews of these three individuals." The defense then learned that the recordings of the December 2013 interviews had been destroyed.

¶10 In September 2015, Chong moved to dismiss the first-degree intentional homicide charge. He argued the police had violated his right to due process by failing to disclose—and by later destroying—the recordings of the December 2013 interviews of Watou, Mikey, and Ryan. As an alternative to dismissal, Chong asked the court to suppress "any in court identification of Chong" by Watou, Mikey, and Ryan and any testimony by those witnesses "that links Chong ... to the homicide in this case." The circuit court concluded the police had violated Chong’s right to due process by destroying potentially exculpatory evidence in bad faith. However, the court determined dismissal of the homicide charge was not an appropriate remedy for that violation. Instead, the court prohibited the State (but not Chong) from calling Watou, Mikey, or Ryan to testify at trial.

¶11 An eleven-day jury trial took place in February and March 2016. At trial, there was evidence that seven individuals had heard Chong confess his involvement in the shooting. In addition, an officer testified that Paul had told law enforcement Chong "was the shooter."

¶12 Before trial, the parties had litigated an issue involving the admissibility of Chong’s statements to others that he would "beat this case." The circuit court ruled that those statements were inadmissible, as they were not relevant and would "only add confusion to the matters at hand." Nevertheless, during her trial testimony, one witness—Stephanie Thao—read a letter Chong had written to her following his arrest that included the statement, "I'm pretty sure I'll beat this case though." Chong’s trial attorneys did not object to that testimony. The jury asked to see the letter during its deliberations. There is no transcript of any discussion between the court and the parties regarding the jury’s request. However, the record shows that the letter was provided to the jury.

¶13 The jury ultimately found Chong guilty of the homicide count, the firearm possession count, and two of the witness intimidation counts. Chong moved for postconviction relief, arguing, among other things, that his trial attorneys were ineffective by failing to object when Stephanie read the "beat this case" letter during her trial testimony.

¶14 At a Machner⁴ hearing, attorney Deborah Vishny, Chong’s lead trial attorney, testified she had no recollection as to why the defense did not object when Stephanie read the letter at trial. In addition, while Vishny agreed that there likely were "discussions" between the circuit court and the parties about "issues that came up" after the jury began its deliberations, she had no specific memory of those discussions. During Vishny’s testimony, the court similarly stated that it had no "independent recollection" of any discussion regarding the jury’s request to see the letter.

¶15 Vishny’s co-counsel, attorney Evan Weitz, also testified that he could not recall why the defense did not object when Stephanie read Chong’s letter. Weitz explained that the parties spent "quite a bit of time in chambers going through" various pieces of evidence, and the circuit court made rulings in chambers as to what evidence was admissible. Weitz testified, "I don't have a specific recollection as to this letter and what the decisions were, but I do remember that we tried to carefully go through these before they were being presented to the witnesses as far as what was coming in and what was not coming in."

¶16 Weitz further testified that he remembered the jury had asked questions during its deliberations, and he believed the parties reconvened in the courtroom to discuss those questions. However, he could not recall whether he objected during those discussions to the court sending the "beat this case" letter to the jury.

¶17 Following the Machner hearing, Chong argued he had been denied his right to a meaningful appeal because there were no transcripts of the circuit court’s discussions with the parties regarding the admissibility of the "beat this case" letter and the jury’s request to review that letter during deliberations. Specifically, Chong argued that due to the lack of transcripts, he was "unable to show that counsel was deficient in failing to object because it is quite possible that counsel did object when this issue was address[ed] in chambers." In the alternative, Chong argued that "if counsel did object in chambers, and the Court nonetheless ruled the evidence admissible, [Chong] cannot show that the Court erroneously exercised [its] discretion because there is no record of the Court’s reasoning."

¶18 The circuit court denied Chong’s postconviction motion. The court rejected Chong’s claim that any missing transcripts deprived him of his right to a meaningful appeal, concluding Chong had not demonstrated a "colorable need" for those transcripts. In any event, the court concluded Chong could not demonstrate that the transcripts’ absence had caused him any prejudice.

¶19 Chong now appeals, arguing that: (1) the State violated his right to due process by failing to disclose the December 2013 interviews of Watou, Mikey, and Ryan; (2) the State violated his right to due process by intentionally destroying the recordings of those interviews; and (3) the missing transcripts deprived him of his right to a meaningful appeal.

DISCUSSION

I. Failure to disclose the December 2013 interviews

¶20 Under Brady v. Maryland , 373 U.S. 83, 87 (1963), "the suppression by the...